Vol. 76 Tuesday, No. 65 April 5, 2011

Pages 18631–18860

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 76, No. 65

Tuesday, April 5, 2011

Administrative Conference of the United States NOTICES RULES Environmental Assessments; Availability, etc.: Disclosure of Records or Information, 18635–18645 Marianas Trench Marine National Monument; NOTICES Commonwealth of Northern Mariana Islands, etc., Meetings: 18773–18775 Committees on Rulemaking, Regulation, and Pacific Remote Islands Marine National Monument; Adjudication, 18713 Monument Management Plan, Comprehensive Conservation Plans, 18775–18777 Agency for Healthcare Research and Quality NOTICES Consumer Product Safety Commission National Advisory Council; Request for Nominations for RULES Public Members, 18765–18766 Third Party Testing for Certain Children’s Products: Requirements for Accreditation of Third Party Conformity Agriculture Department Assessment Bodies—Lead Paint, 18645–18648 See Forest Service Defense Department Antitrust Division See Navy Department NOTICES NOTICES 36(b)(1) Arms Sales, 18726–18736 Proposed Final Judgments, Stipulations and Competitive Defense Transportation Regulation, Part IV, 18737 Impact Statements: Meetings: United States et al. v. Dean Foods Co., 18783–18796 National Defense University Board of Visitors; Date Pursuant to National Cooperative Research and Production Change, 18737 Act of 1993: Reserve Forces Policy Board (RFPB) Member Solicitations, IMS Global Learning Consortium, Inc., 18797 18737–18738

Centers for Disease Control and Prevention Education Department NOTICES NOTICES Meetings: Agency Information Collection Activities; Proposals, Disease, Disability, and Injury Prevention and Control Submissions, and Approvals, 18740–18741 Special Emphasis Panel; Initial Review, 18766 Privacy Act; Systems of Records, 18741–18743

Centers for Medicare & Medicaid Services Employee Benefits Security Administration NOTICES RULES Early Retiree Reinsurance Program, 18766–18767 Actuarial Information on Form 5500 Annual Return/Report for Pension Plans Electing Funding Alternatives: Children and Families Administration Technical Revisions, 18649–18650 PROPOSED RULES Federal Monitoring of Child and Family Service Programs; Employment and Training Administration Request for Public Comment and Consultation NOTICES Meetings, 18677–18679 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Coast Guard National Agricultural Workers Survey, 18798 PROPOSED RULES Safety Zones: Employment Standards Administration Big Rock Blue Marlin Air Show; Bogue Sound, Morehead See Wage and Hour Division City, NC, 18672–18674 Newport River; Morehead City, NC, 18669–18672 Energy Department Security Zones: See Federal Energy Regulatory Commission Sector Southeastern New England Captain of the Port Zone, 18674–18677 Environmental Protection Agency NOTICES RULES Removal of Conditions of Entry: Approvals and Promulgations of Implementation Plans and Vessels Arriving From Islamic Republic of Mauritania, Designations of Areas for Air Quality Planning 18771–18772 Purposes: Rome, GA; Determination of Attaining Data for 1997 Commerce Department Annual Fine Particulate Standard, 18650–18651 See Industry and Security Bureau NOTICES See National Oceanic and Atmospheric Administration Meetings: See National Telecommunications and Information Local Government Advisory Committees Small Administration Community Advisory Subcommittee, 18757

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Project Waivers of Section 1605 (Buy American Preliminary Permit Applications Accepted for Filing and Requirement) of 2009 American Recovery and Soliciting Comments, Motions To Intervene, etc.: Reinvestment Act: Kahawai Power 5, LLC, 18756 Bayonne Municipal Utilities Authority, Bayonne, NJ, Lock Hydro Friends Fund LI, 18755–18756 18757–18759 Lock Hydro Friends Fund LII, 18755 Requests Under Blanket Authorization: Executive Office of the President El Paso Natural Gas Co., 18756–18757 See Presidential Documents Federal Maritime Commission Federal Aviation Administration NOTICES PROPOSED RULES Orders of Investigations and Hearings: Airworthiness Directives: Worldwide Logistics Co., Ltd., 18761–18762 Boeing Co. Model 767 Airplanes, 18664–18669 Federal Mine Safety and Health Review Commission Federal Communications Commission NOTICES PROPOSED RULES Meetings; Sunshine Act, 18762 Draft Environmental Notice Requirements and Interim Procedures Affecting Antenna Structure Registration Federal Motor Carrier Safety Administration Program: Wireless Telecommunications Bureau Invites Comments, NOTICES 18679–18684 Qualifications of Drivers; Exemption Applications: NOTICES Epilepsy and Seizure Disorders, 18822–18823 Improving Communications Services for Native Nations, Qualifications of Drivers; Exemption Applications; Vision, 18759–18761 18824–18826 Requests For Nominations: Federal Emergency Management Agency Unified Carrier Registration Plan Board of Directors, NOTICES 18826–18827 Major Disaster Declarations: New York; Amendment No. 2, 18772 Federal Trade Commission NOTICES Federal Energy Regulatory Commission Analyses of Proposed Consent Orders To Aid Public NOTICES Comment: Agency Information Collection Activities; Proposals, Google, Inc., 18762–18765 Submissions, and Approvals, 18743–18744 Applications for Amendment of License and Soliciting Fish and Wildlife Service Comments, Motions To Intervene, and Protests: PROPOSED RULES Appalachian Power Co., 18745–18746 Endangered and Threatened Wildlife and Plants: Duke Energy Carolinas, LLC, 18744–18745 Bearmouth Mountainsnail, Byrne Resort Mountainsnail, Union Electric Co., dba AmerenUE, 18746–18747 and Meltwater Lednian Stonefly; 12-Month Petition Applications for Partial Transfer of License, and Soliciting Finding, 18684–18701 Comments and Motions To Intervene: Endangered and Threatened Wildlife and Plants; Petitions: Teton Power Funding, LLC; Topsham Hydro Partners Peary Caribou and Dolphin, and Union Population of Limited Partnership, et al., 18747 Barren-ground Caribou, 18701–18706 Applications: NOTICES Gulf South Pipeline Co., LP, 18748–18749 Environmental Assessments; Availability, etc.: National Fuel Gas Supply Corp., 18749–18750 Marianas Trench Marine National Monument; Tennessee Gas Pipeline Co., 18747–18748 Commonwealth of Northern Mariana Islands, etc., Baseline Filings: 18773–18775 Humble Gas Pipeline Co.; Cobra Pipeline Ltd., 18750 Pacific Remote Islands Marine National Monument; Changes in Docket Numbers: Monument Management Plan, Comprehensive Ocean Renewable Power Co., LLC, 18750–18751 Conservation Plans, 18775–18777 Environmental Assessments; Availability, etc.: National Fuel Gas Supply Corp.; Tennessee Gas Pipeline Food and Drug Administration Co., 18751–18753 RULES Filings: Oral Dosages Form New Animal Drugs: American Midstream (Louisiana Intrastate), LLC, 18753 Robenacoxib, 18648 City of Springfield, Illinois, City Water, Light and Power, NOTICES 18753 Meetings: Jefferson Island Storage and Hub, L.L.C., 18753–18754 Cellular, Tissue, and Gene Therapies Advisory Memorandums of Understanding; Availability: Committee, 18768 Federal Energy Regulatory Commission and U.S. Fish and Preparation for International Cooperation on Cosmetics Wildlife Service To Promote Conservation of Regulations, 18767–18768 Migratory Birds, 18754 Motions for Extension of Rate Case Filing Deadline: Forest Service J–W Pipeline Co., 18754 NOTICES Onsite Environmental Reviews: Environmental Impact Statements; Availability, etc.: Tennessee Gas Pipeline Co.; Dominion Transmission, Malheur National Forest Site-Specific Invasive Plants Inc., 18754–18755 Treatment Project; Correction, 18713–18715

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Meetings: Land Management Bureau Prince William Sound Resource Advisory Committee, NOTICES 18715–18716 Meetings: John Day–Snake Resource Advisory Council, 18777– Health and Human Services Department 18778 See Agency for Healthcare Research and Quality State of Arizona Resource Advisory Council, 18777 See Centers for Disease Control and Prevention Proposed Reinstatement of Terminated Oil and Gas Leases: See Centers for Medicare & Medicaid Services Montana, 18778 See Children and Families Administration Nevada, 18778 See Food and Drug Administration See National Institutes of Health Mine Safety and Health Federal Review Commission See Substance Abuse and Mental Health Services See Federal Mine Safety and Health Review Commission Administration NOTICES Agency Information Collection Activities; Proposals, National Aeronautics and Space Administration Submissions, and Approvals, 18765 NOTICES Meetings: Homeland Security Department NASA Advisory Council Exploration Committee, 18800 NASA Advisory Council, Information Technology See Coast Guard Infrastructure Committee, 18800–18801 See Federal Emergency Management Agency

Housing and Urban Development Department National Institutes of Health NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals: National Institute of Environmental Health Sciences, Public Housing Financial Management Template, 18772– 18769 18773 Prospective Grants of Exclusive Licenses: Device and System for Two Dimensional Analysis of Industry and Security Bureau Biomolecules From Tissue and Other Samples, NOTICES 18769–18770 Final Decisions and Orders: Manoj Bhayana, Respondent, 18716–18723 National Labor Relations Board NOTICES Interior Department Meetings; Sunshine Act, 18801 See Fish and Wildlife Service See Land Management Bureau National Oceanic and Atmospheric Administration See National Park Service RULES See Reclamation Bureau Atlantic Highly Migratory Species: Bluefin Tuna Bycatch Reduction in Gulf of Mexico International Trade Commission Pelagic Longline Fishery, 18653–18661 NOTICES Fisheries of Exclusive Economic Zone Off Alaska: Antidumping and Countervailing Duty Investigations and Pacific Cod by Catcher Vessels Using Trawl Gear in Scheduling of Preliminary Phase Investigations: Bering Sea and Aleutian Islands Management Area; Certain Steel Wheels From China, 18781–18782 Closure, 18663 Investigations: Fisheries of Northeastern United States: Frozen Warmwater Shrimp From Brazil; China; India; Northeast Multispecies Fishery; Trip Limit Adjustments Thailand; and Vietnam, 18782 for Common Pool Fishery, 18661–18663 PROPOSED RULES Justice Department Fisheries in the Eastern Pacific Ocean: See Antitrust Division Pelagic Fisheries; Vessel Identification Requirements, See Antitrust Division 18706–18709 NOTICES Magnuson–Stevens Act Provisions; Fisheries Off West Coast Lodging of Consent Decrees, 18782–18783 States: Pacific Coast Groundfish Fishery, 2011 Tribal Fishery for Labor Department Pacific Whiting, 18709–18712 See Employee Benefits Security Administration NOTICES See Employment and Training Administration Agency Information Collection Activities; Proposals, See Occupational Safety and Health Administration Submissions, and Approvals: See Wage and Hour Division Cooperative Charting Programs, 18724 RULES Southeast Region Gulf of Mexico Red Snapper IFQ Updating Regulations Issued Under Fair Labor Standards Program, 18723–18724 Act, 18832–18860 Weather Modification Activities Reports, 18723 NOTICES Marine Mammals; Issuances of Permit Amendments: Agency Information Collection Activities; Proposals, File No. 14334, 18724–18725 Submissions, and Approvals: File Nos. 14330 and 14335, 18725 National Longitudinal Survey of Youth 1997, 18797– Receipt of Application: 18798 Endangered Species, 18725–18726

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National Park Service Self-Regulatory Organizations; Proposed Rule Changes: NOTICES CBOE Futures Exchange, LLC, 18816–18821 Meetings: NASDAQ OMX PHLX LLC, 18813–18818 Cape Cod National Seashore Advisory Commission, 18778–18779 Small Business Administration Flight 93 National Memorial Advisory Commission, NOTICES 18778 Agency Information Collection Activities; Proposals, National Register of Historic Places; Pending Nominations Submissions, and Approvals, 18821 and Related Actions, 18779–18780 Exemption Under Section 312 of Small Business Investment Act, Conflicts of Interest: National Telecommunications and Information Convergent Capital Partners II, L.P., 18821 Administration Interest Rates, 18821

RULES State Department Revision to the Manual of Regulations and Procedures for NOTICES Federal Radio Frequency Management, 18652–18653 Persons and Entities on Whom Sanctions Have Been Imposed Under the Iran Sanctions Act of 1996, 18821– Navy Department 18822 NOTICES Privacy Act; Systems of Records, 18738–18740 Substance Abuse and Mental Health Services Administration Nuclear Regulatory Commission NOTICES NOTICES Applications and Amendments to Facility Operating Current List of Laboratories and Instrumented Initial Licenses, 18801–18807 Testing Facilities that Meet Minimum Standards, etc., Licensee Justification of Long-Term Surveillance Charge, 18770–18771 18807–18809 Meetings; Sunshine Act, 18809–18810 Surface Transportation Board NOTICES Occupational Safety and Health Administration Temporary Trackage Rights Exemptions: NOTICES BNSF Railway Co.—Union Pacific Railroad Co.; Partial Meetings: Revocation, 18827 Maritime Advisory Committee for Occupational Safety Transportation Department and Health, 18798–18800 See Federal Aviation Administration Personnel Management Office See Federal Motor Carrier Safety Administration NOTICES See Surface Transportation Board Agency Information Collection Activities; Proposals, Treasury Department Submissions, and Approvals, 18810 NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals: Submissions, and Approvals, 18827–18829 Disabled Dependent Questionnaire, 18812–18813 Meetings: Letter Reply to Request for Information; Former Spouse Presidents Advisory Council on Financial Capability, Survivor Annuity Election, etc., 18811–18812 18829 Request to Change Federal Employees Health Benefits Enrollment, etc., 18810–18811 Wage and Hour Division We Need Social Security Number of Person Named RULES Below, 18812 Updating Regulations Issued Under Fair Labor Standards Act, 18832–18860 Presidential Documents PROCLAMATIONS Special Observances: Separate Parts In This Issue National Donate Life Month (Proc. 8642), 18631–18632 National Sexual Assault Awareness and Prevention Part II Month (Proc. 8643), 18633–18634 Labor Department, Wage and Hour Division, 18832–18860 Labor Department, 18832–18860 Reclamation Bureau NOTICES Environmental Impact Statements; Availability, etc.: Reader Aids Yakima River Basin Water Enhancement Project, Benton, Consult the Reader Aids section at the end of this page for Kittitas, Klickitat, and Yakima Counties, WA, 18780– phone numbers, online resources, finding aids, reminders, 18781 and notice of recently enacted public laws. Securities and Exchange Commission To subscribe to the Federal Register Table of Contents NOTICES LISTSERV electronic mailing list, go to http:// Orders of Suspension of Trading: listserv.access.gpo.gov and select Online mailing list China Changjiang Mining and New Energy Co., Ltd., archives, FEDREGTOC-L, Join or leave the list (or change 18813 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.

1 CFR 304...... 18635 3 CFR Proclamations: 8642...... 18631 8643...... 18633 14 CFR Proposed Rules: 39...... 18664 16 CFR 1303...... 18645 21 CFR 520...... 18648 29 CFR 4...... 18832 516...... 18832 531...... 18832 553...... 18832 778...... 18832 779...... 18832 780...... 18832 785...... 18832 786...... 18832 790...... 18832 2520...... 18649 33 CFR Proposed Rules: 165 (3 documents) ...... 18669, 18672, 18674 40 CFR 52...... 18650 45 CFR Proposed Rules: 1355...... 18677 1356...... 18677 1357...... 18677 47 CFR 300...... 18652 Proposed Rules: 1...... 18679 17...... 18679 22...... 18679 24...... 18679 25...... 18679 27...... 18679 80...... 18679 87...... 18679 90...... 18679 50 CFR 635...... 18653 648...... 18661 679...... 18663 Proposed Rules: 17 (2 documents) ...... 18684, 18701 300...... 18706 660 (2 documents) ...... 18706, 18709

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Federal Register Presidential Documents Vol. 76, No. 65

Tuesday, April 5, 2011

Title 3— Proclamation 8642 of March 31, 2011

The President National Donate Life Month, 2011

By the President of the United States of America

A Proclamation Americans have always been a generous people, willing to give to others in need. In these challenging times, that spirit of service has been abundantly evident and has made a real difference in many lives. As we observe National Donate Life Month, we reflect on an important opportunity to aid others— bestowing the gift of life through organ and tissue donation. More than 110,000 individuals are now on the national waiting list for organ transplants, and the list continues to grow. Each year, the number of Americans needing life-saving donations has far outstripped the number of available donors. As a result, people lose their lives each day while waiting. When each donation can touch dozens of lives, it has never been more important to make the decision to be an organ and tissue donor. I encourage all Americans to say yes to donation by giving blood regularly and joining their State-based donor registry. Individuals can register online or through the registration or renewal process for a driver’s license or identification card. When considering organ donation, Americans should consult their family members, doctor, or faith leader about the decision to donate life. To find out more about donation and how you can register in your State, be sure to visit: www.OrganDonor.gov. Together, we can all make the choice to save and improve the lives of Americans across our country. NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2011 as National Donate Life Month. I call upon health care professionals, volunteers, edu- cators, government agencies, faith-based and community groups, and private organizations to join forces to boost the number of organ and tissue donors throughout our Nation.

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IN WITNESS WHEREOF, I have hereunto set my hand this thirty-first day of March, in the year of our Lord two thousand eleven, and of the Independ- ence of the United States of America the two hundred and thirty-fifth.

[FR Doc. 2011–8138 Filed 4–4–11; 8:45 am] Billing code 3195–W1–P

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Proclamation 8643 of March 31, 2011

National Sexual Assault Awareness and Prevention Month, 2011

By the President of the United States of America

A Proclamation Our Nation must continue to confront rape and other forms of sexual violence as a deplorable crime. Too many victims suffer unaided, and too many offenders elude justice. As we mark National Sexual Assault Awareness and Prevention Month, we recommit to building a society where no woman, man, or child endures the fear of assault or the pain of an attack on their physical well-being and basic human dignity. Despite reforms to our legal system, sexual violence remains pervasive and largely misunderstood. Nearly one in six American women will experience an attempted or completed rape at some point in her life, and for some groups, rates of sexual violence are even higher. Almost one in three Amer- ican Indian and Alaska Native women will be sexually assaulted. Young women ages 16 to 24 are at greatest risk, and an alarming number of young women are sexually assaulted while in college. Too many men and boys are also affected. With each new victim and each person still suffering from an attack, we are called with renewed purpose to respond to and rid our Nation of all forms of sexual violence. Sexual assault is considered to be the most underreported violent crime in America, and criminal justice responses vary widely across our country. Some communities have developed highly trained, coordinated teams who understand the nature of sexual assault and can respond with compassionate understanding. In other places, victims hesitate to report these crimes because they fear the criminal justice system will respond with skepticism or fail to bring the perpetrator to justice. We must ensure our police, prosecutors, and courts treat victims with the seriousness and respect they need and deserve. We must do more to provide services that help victims recover from the trauma of sexual assault. And ultimately, we must prevent sexual assault before it happens. Under Vice President Joe Biden’s leadership, my Administration is committed to engaging a broad spectrum of Federal agencies and community partners to prevent sexual assault, support victims, and hold offenders accountable. The Department of Justice’s Office on Violence Against Women is leading the Sexual Assault Demonstration Initiative to improve the way sexual assault survivors are served. The Centers for Disease Control and Prevention is funding innovative prevention campaigns that engage bystanders in reducing sexual assault, and the Department of Education is working to combat sexual violence at schools and universities. We will continue to support new ap- proaches that show promise in changing cultural attitudes toward sexual violence and preventing these crimes. Each victim of sexual assault represents a sister or a daughter, a nephew or a friend. We must break the silence so no victim anguishes without resources or aid in their time of greatest need. We must continue to reinforce that America will not tolerate sexual violence within our borders. Likewise, we will partner with countries across the globe as we work toward a common vision of a world free from the threat of sexual violence, including as

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a tool of conflict. Working together, we can reduce the incidence of sexual assault and heal lives that have already been devastated by this terrible crime. NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2011 as National Sexual Assault Awareness and Prevention Month. I urge all Americans to support victims and work together to prevent these crimes in their commu- nities. IN WITNESS WHEREOF, I have hereunto set my hand this thirty-first day of March, in the year of our Lord two thousand eleven, and of the Independ- ence of the United States of America the two hundred and thirty-fifth.

[FR Doc. 2011–8139 Filed 4–4–11; 8:45 am] Billing code 3195–W1–P

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Rules and Regulations Federal Register Vol. 76, No. 65

Tuesday, April 5, 2011

This section of the FEDERAL REGISTER March 19, 2009. Additionally, the requesters. The Conference’s proposed contains regulatory documents having general regulations reflect the Conference’s fee structure is in accordance with applicability and legal effect, most of which commitment to providing the fullest Department of Justice guidelines and are keyed to and codified in the Code of possible disclosure of records to the based upon OMB fee schedules, which Federal Regulations, which is published under public. The proposed rule was 50 titles pursuant to 44 U.S.C. 1510. calculate costs based on the category of published in the Federal Register on requester and kind of employee The Code of Federal Regulations is sold by January 11, 2011 (76 FR 1542) for public duplicating the records. Under the the Superintendent of Documents. Prices of comments. Privacy Act, agencies may recover the new books are listed in the first FEDERAL cost of duplication only. The agency REGISTER issue of each week. Public Comment will provide free duplication and search ACUS received a single set of time (up to a certain amount) in certain comments from one person, which ADMINISTRATIVE CONFERENCE OF suggested numerous technical cases. Where anticipated fees exceed THE UNITED STATES corrections or clarifications, most of $50, an opportunity is given to the which were accepted and incorporated requester to refine the request in order 1 CFR Part 304 into the final rule. The final rule to lower cost. Thus, fees assessed by provides that, in general, e-mail may be ACUS are nominal. The agency certifies Disclosure of Records or Information used by requesters and the agency for that these regulations will not have a AGENCY: Administrative Conference of submission of requests or agency significant economic impact on a the United States. responses. The more significant substantial number of small entities ACTION: Final rule. suggestions were addressed as follows. within the meaning of the RFA. The commenter suggested revising the c. Unfunded Mandates Reform Act SUMMARY: The Administrative procedure for handling appeals to Conference of the United States (ACUS ensure that a requester who receives an For purposes of the Unfunded or the Conference) is promulgating adverse determination on either a FOIA Mandates Reform Act of 1995 (2 U.S.C. updated rules identifying its procedures or Privacy Act request will always have for disclosure of records under the chapter 25, subchapter II), these a right to an administrative appeal. We regulations will not significantly or Freedom of Information Act and its have revised this provision to preserve procedures for protection of privacy and uniquely affect small governments and appeal rights within the agency. would not result in increased access to individual records under the We have also accepted the expenditures by State, local, and tribal Privacy Act of 1974. commenter’s suggestion to modify the governments, in the aggregate, or by the DATES: Effective April 5, 2011. fees section, so as to permit agency private sector, of $100 million or more FOR FURTHER INFORMATION CONTACT: discretionary waivers where Shawne C. McGibbon, General Counsel, appropriate. (as adjusted for inflation). at 202–480–2088 or The commenter suggested that we d. Executive Order 12866 [email protected]. omit multi-track processing because the SUPPLEMENTARY INFORMATION: ACUS was agency is very small. We have retained In issuing these regulations, ACUS established by the Administrative the option of using more than one track has adhered to the regulatory Conference Act, 5 U.S.C. 591–96. to enable more efficient processing of philosophy and the applicable Following the loss of its funding in simple requests. principles of regulation as set forth in 1995, ACUS ceased operations. In 1996, Required Reviews Section 1 of Executive Order 12866, its prior regulations (including Part 304) Regulatory Planning and Review, 58 FR were eliminated. 61 FR 3539 (1996). a. Paperwork Reduction Act 51735. These regulations have not been Congress has now reauthorized and ACUS has determined that the reviewed by the Office of Management refunded ACUS, which has now Paperwork Reduction Act, 44 U.S.C. and Budget under the Executive Order reinitiated operations. These regulations 3501 et seq., does not apply because since they are not a significant provide the agency’s procedures for these regulations do not contain any regulatory action within the meaning of disclosure of records, as required by the information collection requirements. the Executive Order. Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, and its b. Regulatory Flexibility Act List of Subjects in 1 CFR Part 304 procedures for protection of privacy and The Regulatory Flexibility Act (RFA), Administrative practice and access to individual records, as required 5 U.S.C. 601 et seq., requires agencies to procedure, Freedom of information, by the Privacy Act of 1974, 5 U.S.C. perform regulatory flexibility analyses Privacy. 552a, as amended. These regulations when promulgating rules through notice also reflect the principles established by and comment procedures. ACUS has For the reasons stated in the President Obama’s Presidential determined that these regulations do not preamble, under the authority at 5 Memoranda on ‘‘Transparency and Open have a significant economic impact on U.S.C. 552, 552a, and 591–96, the Government’’ and ‘‘Freedom of a substantial number of small entities. Administrative Conference of the Information Act’’ issued on January 21, Under the FOIA, agencies may recover United States amends 1 CFR Chapter III 2009 and Attorney General Holder’s only the direct costs of searching for, to add part 304 as set forth below: Memorandum on ‘‘The Freedom of reviewing and duplicating the records Information Act (FOIA)’’ issued on processed for certain categories of

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PART 304—DISCLOSURE OF records. Requests made by individuals ‘‘Freedom of Information Act Request.’’ RECORDS OR INFORMATION for access to records about themselves (You may find the agency’s ‘‘Freedom of under the Privacy Act of 1974, 5 U.S.C. Information Act Reference Guide’’— Subpart A—Procedures for Disclosure of 552a (2006 & Supp. II 2008), which are which is available on its Web site and Records Under the Freedom of Information processed under subpart B of this part, in paper form—helpful in making your Act are also processed under this subpart. request.) If you are making a request for Sec. The agency will automatically process records about yourself, see § 304.21(d) 304.1 General provisions. the request under both provisions in for additional requirements. If you are 304.2 Public reading room. making a request for records about 304.3 Requirements for making requests. order to provide the maximum possible 304.4 Responsibility for responding to records to the requester. Information another individual, then either a written requests. routinely provided to the public as part authorization signed by that individual 304.5 Timing of responses to requests. of a regular agency activity (for example, permitting disclosure of those records to 304.6 Responses to requests. press releases or recommendations you or proof that that individual is 304.7 Business information. adopted by the agency pursuant to the deceased (for example, a copy of a death 304.8 Appeals. Administrative Conference Act, 5 U.S.C. certificate or an obituary notice) will 304.9 Fees. 591 et seq.) may be provided to the help the processing of your request. 304.10 Preservation of records. public without following this subpart. Your request will be considered 304.11 Other rights and services. (b) As a matter of policy, ACUS makes received as of the date upon which it is Subpart B—Protection of Privacy and discretionary disclosures of records or logged in as received by the agency’s Access to Individual Records Under the information exempt from disclosure FOIA Public Liaison. Privacy Act of 1974 under the FOIA whenever it is (b) Description of records sought. You 304.20 General provisions. determined that disclosure would not must describe the records that you seek 304.21 Requests for access to records. foreseeably harm an interest protected in enough detail to enable agency 304.22 Responsibility for responding to by a FOIA exemption, but this policy personnel to locate them with a requests for access to records. does not create any right enforceable in reasonable amount of effort. Whenever 304.23 Responses to requests for access to court. possible, your request should include records. (c) The agency has designated its specific information about each record 304.24 Appeals from denials of requests for sought, such as the date, title or name, access to records. General Counsel as its Chief FOIA 304.25 Requests for amendment or Officer, who has agency-wide author, recipient, and subject matter of correction of records. responsibility for efficient and the record. If known, you should 304.26 Requests for an accounting of record appropriate compliance with the FOIA include any file designations or similar disclosures. and these implementing regulations. descriptions for the records that you 304.27 Fees. The General Counsel has designated the want. As a general rule, the more 304.28 Notice of court-ordered and agency’s Deputy General Counsel as its specific you are about the records or emergency disclosures. FOIA Public Liaison. type of records that you want, the more 304.29 Security of systems of records. likely that the agency will be able to 304.30 Contracts for the operation of record § 304.2 Public reading room. locate those records in response to your systems. (a) ACUS maintains a public reading 304.31 Use and collection of social security request. If the agency determines that numbers and other information. room that affords access to the records your request does not reasonably 304.32 Employee standards of conduct. that the FOIA requires it to make describe records, then it will tell you 304.33 Preservation of records. regularly available for public inspection either what additional information is 304.34 Other rights and services. and copying even in the absence of a needed or why your request is otherwise FOIA request, including a current insufficient. It also will give you an Subpart A—Procedures for Disclosure subject-matter index of its reading room opportunity to discuss your request by of Records Under the Freedom of records that will be updated quarterly telephone so that you may modify it to Information Act with respect to newly included records. meet the requirements of this section. (b) ACUS also makes all reading room Additionally, if your request does not Authority: 5 U.S.C. 552, 591–96. records that have been created by the reasonably describe the records you agency regularly available to the public § 304.1 General provisions. seek, the agency’s response to it may be electronically on its Web site (http:// delayed as an initial matter. (a) This subpart contains the rules www.acus.gov). (c) Agreement to pay fees. When you that the Administrative Conference of make a FOIA request, it will be § 304.3 Requirements for making requests. the United States (‘‘ACUS’’ or ‘‘the considered to be an agreement by you to agency’’) follows in processing requests (a) How made and addressed. You pay all applicable fees charged under for disclosure of records under the may make a request for records by § 304.9, up to $50.00, unless you Freedom of Information Act (‘‘FOIA’’ or sending an e-mail message addressed to specifically request a waiver of fees. The ‘‘the Act’’), 5 U.S.C. 552, as amended, [email protected], or by using the FOIA agency ordinarily will confirm this and in meeting its responsibilities under Request form on the ACUS Web site at agreement in an acknowledgment letter. the Act. Note that electronic records are http://www.acus.gov/foia. You may also When making a request, you may treated as records for the purposes of the send a written request letter to the specify a willingness to pay a greater or FOIA. These rules should be read agency either by mail addressed to FOIA lesser amount. Your agreement will not together with the text of the FOIA itself, Public Liaison, Administrative prejudice your ability to seek a waiver which provides additional information Conference of the United States, 1120 or reduction of any applicable fee at a about access to records maintained by 20th Street, NW., South Lobby, Suite later time. the agency. They also may be read in 706, Washington, DC 20036, or by fax conjunction with the agency’s ‘‘Freedom delivery to (202) 386–7190. For the § 304.4 Responsibility for responding to of Information Act Reference Guide,’’ quickest possible handling of a mail requests. which provides basic information about request, you should mark both your (a) In general. The agency will be use of the Act in relation to the agency’s request letter and the envelope responsible for responding to a request

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in all respects, except in the case of a by distinguishing between simple and belief, explaining in detail the basis for referral to another agency as is more complex requests based on the requesting expedited processing. For described in paragraphs (b), (c), and (d) amount of work and/or time needed to example, a requester within the category of this section. In determining which process the request, including according in paragraph (d)(1)(ii) of this section, if records are responsive to a request, the to the number of pages involved. If it not a full-time member of the news agency ordinarily will include only does so, then it will advise requesters in media, must establish that he or she is records in its possession and control as its slower track(s) of the limits of its a person whose main professional of the date upon which it begins its faster track(s) and may provide activity or occupation is information search for them. If any other date is requesters in its slower track(s) with an dissemination, though it need not be his used, the agency will inform the opportunity to limit the scope of their or her sole occupation. That requester requester of that date. requests in order to qualify for faster also must establish a particular urgency (b) Consultations and referrals. When processing within the specified limits of to inform the public about the the agency receives a request for a its faster track(s). The agency will government activity involved in the record in its possession and control, it contact the requester by telephone, request, beyond the public’s right to will determine whether another agency e-mail or letter, whichever is most know about government activity of the Federal Government is better able efficient, in each case. generally. The formality of certification to determine whether the record is (c) Unusual circumstances. (1) Where may be waived by the agency as a matter exempt from disclosure under the FOIA the statutory time limits for processing of administrative discretion. and, if so, whether it should be a request cannot be met because of (4) Within ten calendar days of its disclosed as a matter of administrative ‘‘unusual circumstances,’’ as defined in receipt of a request for expedited discretion. If the agency determines that the FOIA, and the agency determines to processing, the agency will decide it is best able to process the record in extend the time limits on that basis, it whether to grant it and will notify the response to the request, then it will do will as soon as practicable notify the requester of the decision. If a request for so. If the agency determines that it is not requester in writing of the unusual expedited treatment is granted, then the best able to process the record, then it circumstances and of the date by which request will be given priority and will will either: processing of the request can be be processed as soon as practicable. If a (1) Respond to the request regarding expected to be completed. Where the request for expedited processing is that record, after consulting with the extension is for more than ten business denied, then any appeal of that decision agency that is best able to determine days, it will provide the requester with will be acted on expeditiously. whether to disclose it and with any an opportunity either to modify the other agency that has a substantial request so that it may be processed § 304.6 Responses to requests. interest in it; or within the time limits or to arrange an (a) Acknowledgments of requests. On (2) Refer the responsibility for alternative time period processing the receipt of a request, if the agency cannot responding to the request regarding that request or a modified request. provide the requested information record to another agency that originated (2) Where the agency reasonably within two business days, then an the record (but only if that agency is believes that multiple requests acknowledgment letter or e-mail subject to the FOIA). Ordinarily, the submitted by a requester, or by a group message will be sent to the requester agency that originated a record will be of requesters acting in concert, that will confirm the requester’s presumed to be best able to determine constitute a single request that would agreement to pay fees under § 304.3(c) whether to disclose it. otherwise involve unusual and will provide a request tracking (c) Notice of referral. When the agency circumstances, and the requests involve number for further reference. Requesters refers all or any part of the clearly related matters, they may be may use this tracking number to responsibility for responding to a aggregated. Multiple requests involving determine the status of their request— request to another agency, it ordinarily unrelated matters will not be aggregated. including the date of its receipt and the (d) Expedited processing. (1) Requests will notify the requester of the referral estimated date on which action on it and appeals will be taken out of order and inform the requester of the name of will be completed—by calling the and given expedited treatment the agency to which the request has agency’s FOIA Public Liaison at (202) whenever it is determined that they been referred and of the part of the 480–2080. In some cases, the agency involve: request that has been referred. may seek further information or (d) Timing of responses to (i) Circumstances in which the lack of clarification from the requester. consultations and referrals. All expedited treatment could reasonably be consultations and referrals will be expected to pose an imminent threat to (b) Grants of requests. Ordinarily, the handled according to the date upon the life or physical safety of an agency will have twenty business days which the FOIA request initially was individual; from when a request is received to received by the first agency, and not any (ii) An urgency to inform the public determine whether to grant or deny the later date. concerning actual or alleged federal request. Once the agency makes such a (e) Agreements regarding government activity, if made by a determination, it will immediately consultations and referrals. The agency person primarily engaged in notify the requester in writing. The may make agreements with other disseminating information; or agency will inform the requester in the agencies designed to eliminate the need (iii) Other circumstances as notice of any fee charged under § 304.9 for consultations or referrals regarding determined by the agency. and will disclose records to the particular types of records. (2) A request for expedited processing requester promptly upon payment of may be made at the time of the initial any applicable fee. Records disclosed in § 304.5 Timing of responses to requests. request for records (i.e., as part of the part will be marked or annotated to (a) In general. The agency ordinarily initial request) or at any later time. show the amount of information will respond to requests according to (3) A requester who seeks expedited deleted, unless doing so would harm an their order of receipt. processing must submit a statement, interest protected by an applicable (b) Multi-track processing. The agency certified to be true and correct to the exemption. The location of the may use two or more processing tracks best of that person’s knowledge and information deleted also will be

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indicated on the record, if technically (c) Designation of business by the agency. Information provided by feasible. information. A submitter of business a submitter under this paragraph may (c) Adverse determinations of information will use good-faith efforts to itself be subject to disclosure under the requests. Whenever the agency makes designate, by appropriate markings, FOIA. an adverse determination denying a either at the time of submission or at a (g) Notice of intent to disclose. The request in any respect, it will notify the reasonable time thereafter, any and all agency will consider a submitter’s requester of that determination in portion(s) of its submission that it objections and specific grounds for writing. Adverse determinations, or considers to be protected from nondisclosure in deciding whether to denials of requests, consist of: A disclosure under Exemption 4. These disclose business information. determination to withhold any designations will expire ten years after Whenever the agency decides to requested record in whole or in part; a the date of the submission unless the disclose business information over the determination that a requested record submitter requests, and provides objection of a submitter, it will give the does not exist or cannot be located; a justification for, a longer designation submitter written notice, which will determination that a record is not period. include: readily reproducible in the form or (d) Notice to submitters. The agency (1) A statement of the reason(s) why format sought by the requester; a will provide a submitter with prompt each of the submitter’s disclosure determination that what has been written notice of a FOIA request or objections was not sustained; requested is not a record subject to the administrative appeal that seeks its (2) A description of the business FOIA; a determination on any disputed business information wherever required information to be disclosed; and fee matter, including a denial of a under paragraph (e) of this section, (3) A specified disclosure date, which request for a fee waiver; and a denial of except as provided in paragraph (h) of will be a reasonable time subsequent to a request for expedited treatment. The this section, in order to give the the notice. denial letter will include: submitter an opportunity to object to (h) Exceptions to notice requirements. (1) The name and title or position of disclosure of any specified portion of The notice requirements of paragraphs the person responsible for the denial; that information under paragraph (f) of (d) and (g) of this section will not apply (2) A brief statement of the reason(s) this section. The notice will either if: for the denial, including any FOIA describe the business information (1) The agency determines that the requested or include copies of the exemption(s) applied by the agency in information should not be disclosed; requested records or record portions (2) The information lawfully has been denying the request; containing the information. When published or has been officially made (3) An estimate of the volume of notification of a voluminous number of available to the public; records or information withheld, in submitters is required, notification may (3) Disclosure of the information is number of pages or in some other be made by posting or publishing the required by statute (other than the reasonable form of estimation. This notice in a place reasonably likely to FOIA) or by a regulation issued in estimate does not need to be provided accomplish it. accordance with the requirements of if the volume is otherwise indicated (e) Where notice is required. Notice Executive Order 12,600; or through deletions on records disclosed will be given to a submitter wherever: (4) The designation made by the in part, or if providing an estimate (1) The information has been submitter under paragraph (c) of this would harm an interest protected by an designated in good faith by the section appears obviously frivolous— applicable exemption; and submitter as information considered except that, in such a case, the agency (4) An indication on the released protected from disclosure under will, within a reasonable time prior to portion of a record of each exemption Exemption 4; or a specified disclosure date, give the applied, at the place at which it was (2) The agency has reason to believe submitter written notice of any final applied, if technically feasible. that the information may be protected decision to disclose the information. (5) A statement that the denial may be from disclosure under Exemption 4. (i) Notice of FOIA lawsuit. Whenever appealed under § 304.8(a) and a (f) Opportunity to object to disclosure. a requester files a lawsuit seeking to description of the requirements of The agency will allow a submitter a compel the disclosure of business § 304.8(a). reasonable time to respond to the notice information, the agency will promptly described in paragraph (d) of this § 304.7 Business information. notify the submitter. section and will specify that time period (j) Corresponding notice to requesters. (a) In general. Business information within the notice. If a submitter has any Whenever the agency provides a obtained by the agency will be disclosed objection to disclosure, it is required to submitter with notice and an under the FOIA only under this section submit a detailed written statement. The opportunity to object to disclosure and in accordance with Executive Order statement must specify all grounds for under paragraph (d) of this section, it 12,600, 3 CFR part 235 (1988). withholding any portion of the will also notify the requester(s). (b) Definitions. For purposes of this information under any exemption of the Whenever the agency notifies a section: FOIA and, in the case of Exemption 4, submitter of its intent to disclose (1) ‘‘Business information’’ means it must show why the information is a requested information under paragraph privileged or confidential commercial or trade secret or commercial or financial (g) of this section, it will also notify the financial information obtained by the information that is privileged or requester(s). Whenever a submitter files agency from a submitter that may be confidential. In the event that a a lawsuit seeking to prevent the protected from disclosure under submitter fails to respond to the notice disclosure of business information, the Exemption 4 of the FOIA. within the time specified in it, the agency will notify the requester(s). (2) ‘‘Submitter’’ means any person or submitter will be considered to have no entity from whom the agency obtains objection to disclosure of the § 304.8 Appeals. business information, either directly or information. Information provided by (a) Appeals of adverse indirectly. The term includes the submitter that is not received by the determinations. If you are dissatisfied corporations; state, local, and tribal agency until after its disclosure decision with the response to your request, you governments; and foreign governments. has been made will not be considered may appeal an adverse determination

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denying your request, in any respect, to payable to the Treasury of the United solely for the purpose of conducting the Chairman of the agency. You must States. scientific research the results of which make your appeal in writing, by e-mail (b) Definitions. For purposes of this are not intended to promote any or letter, and it must be received by the section: particular product or industry. To agency within 60 days of the date of the (1) ‘‘Commercial use request’’ means a qualify under this category, a requester agency’s response denying your request. request from or on behalf of a person must show that the request is authorized Your appeal should provide reasons and who seeks information for a use or by and is made under the auspices of a supporting information as to why the purpose that furthers his or her qualifying institution and that the initial determination was incorrect. The commercial, trade, or profit interests, records are not sought for a commercial appeal should clearly identify the including furthering those interests use but are sought to further scientific particular determination (including the through litigation. The agency will research. assigned request number, if known) that determine, whenever reasonably (6) ‘‘Representative of the news you are appealing. For the quickest possible, the use to which a requester media,’’ or ‘‘news-media requester,’’ possible handling of a mail request, you will put the requested records. When it means any person or entity that gathers should mark your appeal ‘‘Freedom of appears that the requester will put the information of potential interest to a Information Act Appeal.’’ The Chairman records to a commercial use, either segment of the public, uses its editorial or his or her designee will act on the because of the nature of the request skills to turn the raw materials into a appeal, except that an appeal ordinarily itself or because the agency has distinct work, and distributes that work will not be acted on if the request reasonable cause to doubt a requester’s to an audience. For this purpose, the becomes a matter of FOIA litigation. stated use, the agency will provide the term ‘‘news’’ means information that is (b) Responses to appeals. The requester a reasonable opportunity to about current events or that would be of decision on your appeal will be made by submit further clarification. current interest to the public. Examples (2) ‘‘Direct costs’’ means those e-mail or letter, ordinarily within 20 of news-media entities are television or expenses that an agency actually incurs business days of receipt of your appeal. radio stations broadcasting to the public in searching for and duplicating (and, in A decision affirming an adverse at large and publishers of periodicals determination in whole or in part will the case of commercial use requests, reviewing) records to respond to a FOIA (but only if such entities qualify as contain a statement of the reason(s) for disseminators of ‘‘news’’) who make the affirmance, including any FOIA request. Direct costs include, for example, the salary of the employee their products available for purchase by exemption(s) applied, and will inform or subscription by or free distribution to you of the FOIA provisions for court performing the work (the basic rate of the general public. These examples are review of the decision. (You also may be pay for the employee, plus 16 percent of not all-inclusive. Moreover, as methods aware of the mediation services that are that rate to cover benefits) and the cost of news delivery evolve (for example, offered by the Office of Government of operating duplication machinery. Not the adoption of the electronic Information Services (‘‘OGIS’’) of the included in direct costs are overhead dissemination of newspapers through National Archives and Records expenses such as the costs of space and telecommunications services), such Administration—see http:// heating or lighting of the facility in alternative media shall be considered to www.archives.gov/ogis/—as a non- which the records are kept. be news-media entities. A freelance exclusive alternative to FOIA litigation.) (3) ‘‘Duplication’’ means the making of journalist shall be regarded as working If the adverse determination is reversed a copy of a record, or of the information for a news-media entity if the journalist or modified on appeal, in whole or in contained in it, necessary to respond to can demonstrate a solid basis for part, then you will be notified in a a FOIA request. Copies can take the expecting publication through that written decision and your request will form of paper, audiovisual materials, or entity, whether or not the journalist is be reprocessed in accordance with that electronic records, among others. The actually employed by the entity. A appeal decision. agency will honor a requester’s (c) When appeal is required. As a specified preference of form or format of publication contract would present a general rule, if you wish to seek review disclosure if the record is readily solid basis for such an expectation; the by a court of any adverse determination, reproducible with reasonable efforts in agency may also consider the past you must first appeal it in a timely the requested form or format. publication record of the requester in fashion under this section. (4) ‘‘Educational institution’’ means a making such a determination. To qualify preschool, a public or private under this category, a requester must § 304.9 Fees. elementary or secondary school, an not be seeking the requested records for (a) In general. The agency will charge institution of undergraduate higher a commercial use. A request for records for processing requests under the FOIA education, an institution of graduate supporting the news-dissemination in accordance with paragraph (c) of this higher education, an institution of function of the requester will not be section, except where fees are limited professional education, or an institution considered to be for a commercial use. under paragraph (d) of this section, of vocational education, that operates a (7) ‘‘Review’’ means the examination where a waiver or reduction of fees is program of scholarly research. To of a record located in response to a granted under paragraph (k) of this qualify under this category, a requester request in order to determine whether section, or where the agency’s FOIA must show that the request is authorized any portion of it is exempt from staff waives fees in whole or in part by and is made under the auspices of a disclosure. It also includes processing because they are deemed to be qualifying institution and that the any record for disclosure—for example, inappropriate or unreasonable—and in records are not sought for a commercial doing all that is necessary to redact it some cases the agency may seek further use but are sought to further scholarly and prepare it for disclosure. Review information or clarification from the research. costs are recoverable even if a record requester for this purpose. The agency (5) ‘‘Noncommercial scientific ultimately is not disclosed. Review time ordinarily will collect all applicable fees institution’’ means an institution that is includes time spent considering any before sending copies of requested not operated on a ‘‘commercial’’ basis, as formal objection to disclosure made by records to a requester. Requesters must that term is defined in paragraph (b)(1) a business submitter under § 304.7 but pay fees by check or money order made of this section, and that is operated does not include time spent resolving

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general legal or policy issues regarding computer, such as tapes, disks, or news media, will not charge any the application of exemptions. printouts, the agency will charge the duplication fee. (8) ‘‘Search’’ means the process of direct costs, including operator time, of (e) Notice of anticipated fees in excess looking for and retrieving records or producing the copy. For other forms of of $50.00. When the agency determines information responsive to a request. It duplication, the agency will charge the or estimates that the fees to be charged includes page-by-page or line-by-line direct costs of that duplication. under this section will amount to more identification of information within (3) Review. Review fees will be than $50.00, it will notify the requester records and also includes reasonable charged to requesters who make a of the actual or estimated amount of the efforts to locate and retrieve information commercial use request. Review fees fees, unless the requester has indicated from records maintained in electronic will be charged only for the initial a willingness to pay fees as high as form or format. The agency will conduct record review, when the agency those anticipated. If only a portion of searches in the most efficient and least determines whether an exemption the fee can be estimated readily, the expensive manner reasonably possible. applies to a particular record or record agency will advise the requester that the For example, it will not search on a line- portion at the initial request level. No estimated fee might be only a portion of by-line basis where duplicating an charge will be made for review at the the total fee. In cases in which a entire document would be quicker and administrative appeal level regarding an requester has been notified that actual less expensive. exemption already applied. However, or estimated fees amount to more than (c) Fees charged. In responding to records or record portions withheld $50.00, the request will not be FOIA requests, the agency will charge under an exemption that is considered received and further work the following fees unless a waiver or subsequently determined not to apply will not be done on it until the requester reduction of fees has been granted under may be reviewed again to determine agrees to pay the total anticipated fee. paragraph (k) of this section: whether any other exemption not Any such agreement should be (1) Search. (i) Search fees will be previously considered applies; the costs memorialized in writing. A notice under charged for all requests (other than of that review are chargeable where it is this paragraph will offer the requester requests made by educational made necessary by such a change of an opportunity to discuss the matter institutions, noncommercial scientific circumstances. Review fees will be with agency personnel in order to institutions, or representatives of the charged at the same rates as those used reformulate the request to meet the news media) subject to the limitations of for a search under paragraph (c)(1)(ii) of requester’s needs at a lower cost. paragraph (d) of this section. The agency (f) Charges for other services. Apart this section. may charge for time spent searching from the other provisions of this section, (d) Limitations on charging fees. (1) even if it does not locate any responsive when the agency chooses as a matter of No search fee will be charged for record or if it withholds the record(s) administrative discretion to provide a requests by educational institutions, located as entirely exempt from special service—such as certifying that noncommercial scientific institutions, disclosure. records are true copies or sending them or representatives of the news media. (ii) For each quarter hour spent by by other than ordinary mail—the direct clerical personnel in searching for and (2) No search fee or review fee will be costs of providing the service ordinarily retrieving a requested record, the fee charged for a quarter-hour period unless will be charged. will be $5.00. Where a search and more than half of that period is required (g) Charging interest. The agency may retrieval cannot be performed entirely for search or review. charge interest on any unpaid bill by clerical personnel (for example, (3) Except for requesters seeking starting on the 31st day following the where the identification of records records for a commercial use, the agency date of the billing of the requester. within the scope of a request requires will provide without charge: Interest charges will be assessed at the the use of professional personnel) the (i) The first 100 pages of duplication rate provided in 31 U.S.C. 3717 and will fee will be $10.00 for each quarter hour (or the cost equivalent); and accrue from the date of the billing until of search time spent by professional (ii) The first two hours of search (or payment is received by the agency. The personnel. Where the time of managerial the cost equivalent). agency will follow the provisions of the personnel is required, the fee will be (4) Whenever a total fee calculated Debt Collection Act of 1982, Public Law $15.00 for each quarter hour of time under paragraph (c) of this section is 97–365, 96 Stat. 1749, as amended, and spent by those personnel. $20.00 or less for any request, no fee regulations pursuant thereto. (iii) For computer searches of records, will be charged. (h) Aggregating requests. Wherever requesters will be charged the direct (5) The provisions of paragraphs (d)(3) the agency reasonably believes that a costs of conducting the search, although and (4) of this section work together. requester or a group of requesters acting certain requesters (as provided in This means that for requesters other together is attempting to divide a paragraph (d)(1) of this section) will be than those seeking records for a request into a series of requests for the charged no search fee and certain other commercial use, no fee will be charged purpose of avoiding fees, it may requesters (as provided in paragraph unless the cost of search in excess of aggregate those requests and charge (d)(3) of this section) will be entitled to two hours plus the cost of duplication accordingly. In so doing, it will presume the cost equivalent of two hours of in excess of 100 pages totals more than that multiple requests of this type made manual search time without charge. $20.00. within a 30-day period have been made These direct costs will include the costs (6) In the case of any request on in order to avoid fees. Where requests of operator/programmer salary which the agency does not comply with are separated by a longer period, the apportionable to the search. any of the time limits of the FOIA and agency will aggregate them only where (2) Duplication. Duplication fees will for which no ‘‘unusual or exceptional there exists a solid basis for determining be charged to all requesters, subject to circumstances’’ exist, as those terms are that aggregation is warranted under all the limitations of paragraph (d) of this defined by the FOIA, the agency will the circumstances involved. Multiple section. For a paper photocopy of a not charge any search fee or, for such requests involving unrelated matters record (no more than one copy of which requests made by educational will not be aggregated. need be supplied), the fee will be ten institutions, noncommercial scientific (i) Advance payments. (1) For cents per page. For copies produced by institutions, or representatives of the requests other than those described in

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paragraphs (i)(2) and (i)(3) of this (2) To determine whether the first fee behalf the requester may be acting, that section, the agency will not require the waiver requirement is met, the agency would be furthered by the requested requester to make an advance will consider the following factors: disclosure. Requesters will be given an payment—in other words, a payment (i) The subject of the request: Whether opportunity in the administrative made before work is begun or continued the subject of the requested records process to provide explanatory on a request. Payment owed for work concerns ‘‘the operations or activities of information regarding this already completed (i.e., a prepayment the government.’’ The subject of the consideration. before copies are sent to a requester) is requested records must concern (ii) The primary interest in disclosure: not an advance payment. identifiable operations or activities of (2) Where the agency determines or the federal government, with a Whether any identified commercial estimates that a total fee to be charged connection that is direct and clear, not interest of the requester is sufficiently under this section will be more than remote or attenuated. large, in comparison with the public $250.00, it may require the requester to (ii) The informative value of the interest in disclosure, that disclosure is make an advance payment of an amount information to be disclosed: Whether ‘‘primarily in the commercial interest of up to the amount of the entire the disclosure is ‘‘likely to contribute’’ to the requester.’’ A fee waiver or reduction anticipated fee before beginning to an understanding of government is justified where the public interest process the request, except where it operations or activities. The disclosable standard is satisfied and that public receives a satisfactory assurance of full portions of the requested records must interest is greater in magnitude than that payment from a requester that has a be meaningfully informative about of any identified commercial interest in history of prompt payment. government operations or activities in disclosure. The agency ordinarily will (3) Where a requester has previously order to be ‘‘likely to contribute’’’ to an presume that where a news-media failed to pay a properly charged FOIA increased public understanding of those requester has satisfied the public fee to any agency within 30 days of the operations or activities. interest standard, the public interest date of billing, the agency may require (iii) The contribution to an will be the interest primarily served by the requester to pay the full amount understanding of the subject by the disclosure to that requester. Disclosure due, plus any applicable interest, and to public likely to result from disclosure: to data brokers or others who merely make an advance payment of the full Whether disclosure of the requested compile and market government amount of any anticipated fee, before it information will contribute to ‘‘public information for direct economic return begins to process a new request or understanding.’’ The disclosure must will not be presumed primarily to serve continues to process a pending request contribute to the understanding of a the public interest. reasonably broad audience of persons from that requester. (4) Where only some of the records to (4) In cases in which the agency interested in the subject, as opposed to be released satisfy the requirements for requires advance payment or payment the individual understanding of the a waiver of fees, a waiver will be due under paragraph (i)(2) or (i)(3) of requester. A requester’s expertise in the granted for those records. this section, the request will not be subject area and ability and intention to considered received and further work convey information effectively to the (5) Requests for the waiver or will not be done on it until the required public will be considered. It will be reduction of fees should address the payment is received. presumed that a representative of the factors listed in paragraphs (k)(2) and (j) Other statutes specifically news media satisfies this consideration. (k)(3) of this section insofar as they providing for fees. The fee schedule of (iv) The significance of the apply to each request. The agency will this section does not apply to fees contribution to public understanding: exercise its discretion to consider the charged under any statute that Whether the disclosure is likely to cost-effectiveness of its investment of specifically requires an agency to set contribute ‘‘significantly’’ to public administrative resources in this and collect fees for particular types of understanding of government operations decisionmaking process in deciding to records. In cases in which records or activities. The public’s understanding grant waivers or reductions of fees. responsive to requests are maintained of the subject in question, as compared for distribution by another agency under to the level of public understanding § 304.10 Preservation of records. such a statutorily based fee schedule existing prior to the disclosure, must be (a) The agency will preserve all program, ACUS will inform the enhanced by the disclosure to a correspondence pertaining to the requesters of the steps for obtaining significant extent. The agency will not requests that it receives under this records from those sources so that they make value judgments about whether subpart, as well as copies of all may do so most economically. information that would contribute requested records, until disposition or (k) Requirements for waiver or significantly to public understanding of destruction is authorized by title 44 of reduction of fees. (1) Records responsive the operations or activities of the the United States Code or the National to a request will be furnished without government is ‘‘important’’ enough to be Archives and Records Administration’s charge or at a charge reduced below that made public. General Records Schedule 14. Records (3) To determine whether the second established under paragraph (c) of this will not be disposed of while they are fee waiver requirement is met, the section where the agency determines, the subject of a pending request, appeal, agency will consider the following based on all available information, that or lawsuit under the FOIA. the requester has demonstrated that: factors: (i) Disclosure of the requested (i) The existence and magnitude of a (b) In the event that the agency information is in the public interest commercial interest: Whether the contracts with another agency, entity, or because it is likely to contribute requester has a commercial interest that person to maintain records for the significantly to public understanding of would be furthered by the requested agency for the purposes of records the operations or activities of the disclosure. The agency will consider management, it will promptly identify government, and any commercial interest of the requester such records in its ‘‘Freedom of (ii) Disclosure of the information is (with reference to the definition of Information Reference Guide’’ and not primarily in the commercial interest ‘‘commercial use’’ in paragraph (b)(1) of specify the particular means by which of the requester. this section), or of any person on whose request for such records can be made.

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§ 304.11 Other rights and services. person or by sending an e-mail message search for them. If any other date is Nothing in this subpart shall be addressed to [email protected]. You may used, the agency will inform the construed to entitle any person, as of also send a written request letter to the requester of that date. right, to any service or to the disclosure agency either by mail addressed to 1120 (b) Consultations and referrals. When of any record to which such person is 20th Street, NW., South Lobby, Suite the agency receives a request for access not entitled under the FOIA. 706, Washington, DC 20036, or by fax to a record in its possession and control, delivery to (202) 386–7190. For the it will determine whether another Subpart B—Protection of Privacy and quickest possible handling of a mail agency of the Federal Government, is Access to Individual Records Under request, you should mark both your better able to determine whether the the Privacy Act of 1974 request letter and the envelope ‘‘Privacy record is exempt from access under the Act Request.’’ Privacy Act. If the agency determines Authority: 5 U.S.C. 552a, 591–96. (b) Description of records sought. You that it is the agency best able to process must describe the records that you want § 304.20 General provisions. the record in response to the request, in enough detail to enable agency then it will do so. If it determines that (a) Purpose and scope. This subpart personnel to locate the system of it is not best able to process the record, contains the rules that the records containing them with a then it will either: Administrative Conference of the reasonable amount of effort. Whenever (1) Respond to the request regarding United States (‘‘ACUS’’ or ‘‘the agency’’) possible, your request should describe that record, after consulting with the follows under the Privacy Act of 1974 the records sought, the time periods in agency that is best able to determine (‘‘the Privacy Act’’), 5 U.S.C. 552a, as which you believe they were compiled, whether the record is exempt from amended, regarding the protection of, and the name or identifying number of access and with any other agency that and individual access to, certain records each system of records in which you has a substantial interest in it; or about individuals. These rules should believe they are kept. The agency (2) Refer the responsibility for be read together with and are governed publishes a notice in the Federal responding to the request regarding that by the Privacy Act itself, which Register that describes its systems of record to the agency that is best able to provides additional information about records. determine whether it is exempt from records maintained on individuals. The (c) Agreement to pay fees. If you make access, or to another agency that rules in this subpart apply to all records a Privacy Act request for access to originated the record (but only if that in Privacy Act systems of records records, it will be considered an agency is subject to the Privacy Act). maintained by the agency, which are agreement by you to pay all applicable Ordinarily, the agency that originated a retrieved by an individual’s name or fees charged under § 304.27, up to record will be presumed to be best able personal identifier. They describe the $50.00. Duplication fees in excess of to determine whether it is exempt from procedures by which individuals may $50.00 are subject to the requirements of access. request access to records about § 304.27 of this subpart and the themselves, request amendment or notification requirements in § 304.9 of (c) Notice of referral. When the agency correction of those records, and request subpart A. The agency ordinarily will refers all or any part of the an accounting of disclosures of those confirm this agreement in an responsibility for responding to a records by the agency. In addition, the acknowledgment letter. When making a request to another agency, it ordinarily agency processes all Privacy Act request, you may specify a willingness will notify the requester of the referral requests for access to records under the to pay a greater or lesser amount. and inform the requester of the name of Freedom of Information Act (‘‘FOIA’’), 5 (d) Verification of identity. When you the agency to which the request has U.S.C. 552, as amended, following the make a request for access to records been referred and of the part of the rules contained in subpart A of this part. about yourself, you must verify your request that has been referred. Thus, all Privacy Act requests will be identity. You must state your full name, (d) Timing of responses to subject to exemptions for access to current address, and date and place of consultations and referrals. All records only applicable under both birth. You must sign your request and consultations and referrals will be FOIA and the Privacy Act. your signature must either be notarized handled according to the date upon (b) Definitions. As used in this or submitted by you under 28 U.S.C. which the Privacy Act access request subpart: 1746, a law that permits statements to was initially received by the first (1) ‘‘Request for access to a record’’ be made under penalty of perjury as a agency, not any later date. means a request made under Privacy substitute for notarization. In order to (e) Agreements regarding Act, 5 U.S.C. 552a(d)(1). help the identification and location of consultations and referrals. The agency (2) ‘‘Request for amendment or requested records, you may also, may make agreements with other correction of a record’’ means a request entirely at your option, include the last agencies designed to eliminate the need made under Privacy Act, 5 U.S.C. four digits of your social security for consultations or referrals for 552a(d)(2). number. particular types of records. (3) ‘‘Request for an accounting’’ means a request made under Privacy Act, 5 § 304.22 Responsibility for responding to § 304.23 Responses to requests for access to records. U.S.C. 552a(c)(3). requests for access to records. (4) ‘‘Requester’’ means an individual (a) In general. The agency will be (a) Acknowledgments of requests. On who makes a request for access, a responsible for responding to a request receipt of a request, the agency request for amendment or correction, or in all respects, except in the case of a ordinarily will send an acknowledgment a request for an accounting under the referral to another agency as is letter to the requester that will confirm Privacy Act. described in paragraphs (b), (c), and (d) the requester’s agreement to pay fees of this section. In determining which under § 304.21(c) and provide an § 304.21 Requests for access to records. records are responsive to a request, the assigned request number for further (a) How made and addressed. You agency ordinarily will include only reference. In some cases, the agency may make a request for access to a records in its possession and control as may seek further information or record about yourself by appearing in of the date upon which it begins its clarification from the requester.

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(b) Grants of requests for access. Once envelope ‘‘Privacy Act Appeal.’’ The correction in the same manner as a the agency makes a determination to Chairman of the agency or his or her denial of a request for access to records grant a request for access in whole or in designee will act on the appeal, except (see § 304.24(a)) and the same part, it will notify the requester in that an appeal ordinarily will not be procedures will be followed. The agency writing. The agency will inform the acted on if the request becomes a matter will ordinarily act on the appeal within requester in the notice of any fee of FOIA or Privacy Act litigation. 30 business days of receipt of the charged under § 304.27 and will (b) Responses to appeals. The appeal, except that the Chairman of the disclose records to the requester decision on your appeal will be made in agency may extend the time for promptly on payment of any applicable writing. A decision affirming an adverse response for good cause shown. If your fee. If a request is made in person, the determination in whole or in part will appeal is denied, you will be advised of agency may disclose records to the include a brief statement of the reason(s) your right to file a Statement of requester directly, in a manner not for the affirmance, including any Disagreement as described in paragraph unreasonably disruptive of its exemption applied, and will inform you (d) of this section and of your right operations, on payment of any of the Privacy Act provisions for court under the Privacy Act for court review applicable fee and with a written record review of the decision. If the adverse of the decision. made of the grant of the request. If a determination is reversed or modified (d) Statements of Disagreement. If requester is accompanied by another on appeal in whole or in part, then you your appeal under this section is denied person, the requester will be required to will be notified in a written decision in whole or in part, you have the right authorize in writing any discussion of and your request will be reprocessed in to file a Statement of Disagreement that the records in the presence of the other accordance with that appeal decision. states your reason(s) for disagreeing person. (c) When appeal is required. As a with the agency’s denial of your request (c) Adverse determinations of requests general rule, if you wish to seek review for amendment or correction. for access. Upon making an adverse by a court of any adverse determination Statements of Disagreement must be determination denying a request for or denial of a request, you must first concise, must clearly identify each part access in any respect, the agency will appeal it under this section. of any record that is disputed, and notify the requester of that should be no longer than one typed page determination in writing. Adverse § 304.25 Requests for amendment or correction of records. for each fact disputed. The agency will determinations, or denials of requests place your Statement of Disagreement in consist of: a determination to withhold (a) How made and addressed. Unless the system of records in which the any requested record in whole or in the record is not subject to amendment disputed record is maintained and will part; a determination that a requested or correction as stated in paragraph (f) mark the disputed record to indicate record does not exist or cannot be of this section, you may make a request that a Statement of Disagreement has located; a determination that what has for amendment or correction of an been filed and exactly where in the been requested is not a record subject to ACUS record about yourself by system of records it may be found. the Privacy Act; a determination on any following same procedures as in (e) Notification of amendment/ disputed fee matter; and a denial of a § 304.21. Your request should identify correction or disagreement. Within 30 request for expedited treatment. The each particular record in question, state business days of the amendment or notification letter will include: the amendment or correction that you correction of a record, the agency will (1) The name and title or position of want, and state why you believe that the notify all persons, organizations, or the person responsible for the denial; record is not accurate, relevant, timely, agencies to which it previously (2) A brief statement of the reason(s) or complete. You may submit any disclosed the record, if an accounting of for the denial, including any Privacy documentation that you think would be that disclosure was made, that the Act exemption(s) applied in denying the helpful. If you believe that the same record has been amended or corrected. request; and record is maintained in more than one If an individual has filed a Statement of (3) A statement that the denial may be system of records, you should state that. Disagreement, the agency will append a appealed under § 304.24(a) and a (b) Agency responses. Within ten copy of it to the disputed record description of the requirements of business days of receiving your request whenever the record is disclosed and § 304.24(a). for amendment or correction of records, may also append a concise statement of the agency will send you a written § 304.24 Appeals from denials of requests its reason(s) for denying the request to acknowledgment of its receipt of your amend or correct the record. for access to records. request. The agency will promptly (a) Appeals. If you are dissatisfied (f) Records not subject to amendment notify you whether your request is or correction. The following records are with the response to your request, you granted or denied. If the agency grants may appeal an adverse determination not subject to amendment or correction: your request in whole or in part, it will (1) Transcripts of testimony given denying your request, in any respect, to describe the amendment or correction under oath or written statements made the Chairman of the agency. You must made and will advise you of your right under oath; make your appeal in writing, by e-mail to obtain a copy of the corrected or (2) Transcripts of grand jury or letter, and it must be received by the amended record, in disclosable form. If proceedings, judicial proceedings, or agency within 60 days of the date of the the agency denies your request in whole quasi-judicial proceedings, which are denial of your request. Your appeal or in part, it will send you a letter that the official record of those proceedings; letter should provide reasons and will state: and supporting information as to why the (1) The reason(s) for the denial; and (3) Any other record that originated initial determination was incorrect. The (2) The procedure for appeal of the with the courts. appeal should clearly identify the denial under paragraph (c) of this particular determination (including the section, including the name and § 304.26 Requests for an accounting of assigned request number, if known) that business address of the official who will record disclosures. you are appealing. For the quickest act on your appeal. (a) How made and addressed. Except possible handling of a mail request, you (c) Appeals. You may appeal a denial where accountings of disclosures are not should mark your appeal letter and the of a request for amendment or required to be kept (as stated in

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paragraph (b) of this section), you may the agency will notify that individual of (b) That individuals requested to make a request for an accounting of any the disclosure. This notice will be provide their social security numbers, or disclosure that has been made by the mailed to the individual’s last known any other information collected from agency to another person, organization, address and will state the nature of the them, must be informed, before or agency of any record about you. This information disclosed; the person, providing such information, of: accounting contains the date, nature, organization, or agency to which it was (1) Whether providing social security and purpose of each disclosure, as well disclosed; the date of disclosure; and numbers (or such other information) is as the name and address of the person, the compelling circumstances justifying mandatory or voluntary; organization, or agency to which the the disclosure. (2) Any statutory or regulatory disclosure was made. Your request for authority that authorizes the collection § 304.29 Security of systems of records. an accounting should identify each of social security numbers (or such particular record in question and should (a) Administrative and physical other information); be made in writing to the agency, controls. The agency will have (3) The principal purpose(s) for which following the procedures in § 304.21. administrative and physical controls to the information is intended to be used; (b) Where accountings are not prevent unauthorized access to its (4) The routine uses that may be made required. The agency is not required to systems of records, to prevent of the information; and provide accountings to you where they unauthorized disclosure of records, and (5) The effects, in any, on the relate to: to prevent physical damage to or individual of not providing all or any (1) Disclosures for which accountings destruction of records. The stringency of part of the requested information; and are not required to be kept (i.e., these controls corresponds to the (c) That, where the information disclosures that are made to officers and sensitivity of the records that the referred to above is requested on a form, employees of the agency and disclosures controls protect. At a minimum, these the requirements for informing such required under the FOIA); or controls are designed to ensure that: individuals are set forth on the form (2) Disclosures made to law (1) Records are protected from public used to collect the information, or on a enforcement agencies for authorized law view; separate form that can be retained by (2) The area in which records are kept enforcement activities in response to such individuals. is supervised during business hours in written requests from a duly authorized order to prevent unauthorized persons § 304.32 Employee standards of conduct. representative of any such law from having access to them; enforcement agency specifying portion The agency will inform its employees (3) Records are inaccessible to of the provisions of the Privacy Act, of the record desired and the law unauthorized persons outside of enforcement activity for which the including the scope of its restriction business hours; and against disclosure of records maintained record is sought. (4) Records are not disclosed to (c) Appeals. You may appeal a denial in a system of records without the prior unauthorized persons or under written consent of the individual of a request for an accounting in the unauthorized circumstances in oral, same manner as a denial of a request for involved, and the Act’s civil liability written or any other form. and criminal penalty provisions. Unless access to records (see § 304.24(a)) and (b) Restrictive procedures. The agency the same procedures will be followed. otherwise permitted by law, an will implement practices and employee of the agency will: § 304.27 Fees. procedures that restrict access to records (a) Collect from individuals and to only those individuals within the The agency will charge fees for maintain only the information that is agency who must have access to those duplication of records under the Privacy relevant and necessary to discharge the records in order to perform their duties Act in the same way in which it charges agency’s responsibilities; and that prevent inadvertent disclosure duplication fees under § 304.9 of (b) Collect information about an of records. subpart A. No search or review fee may individual directly from that individual be charged for any record under the § 304.30 Contracts for the operation of to the greatest extent practicable when Privacy Act. record systems. the information may result in an adverse Any approved contract for the determination about an individual’s § 304.28 Notice of court-ordered and rights, benefits, or privileges under emergency disclosures. operation of a record system will contain appropriate requirements issued Federal programs; (a) Court-ordered disclosures. When a by the General Services Administration (c) Inform each individual from whom record pertaining to an individual is in order to ensure compliance with the information is collected of the required to be disclosed by a court requirements of the Privacy Act for that information set forth in § 304.31(b); order, the agency will make reasonable record system. The contracting officer of (d) Ensure that the agency maintains efforts to provide notice of such order to the agency will be responsible for no system of records without public the individual. Notice will be given ensuring that the contractor complies notice and also notify appropriate within a reasonable time after the with these contract requirements. agency officials of the existence or agency’s receipt of the order, except that development of any system of records in a case in which the order is not a § 304.31 Use and collection of social that is not the subject of a current or matter of public record, the notice will security numbers and other information. planned public notice; be given only after the order becomes The agency will ensure that (e) Maintain all records that are used public. This notice will be mailed to the employees authorized to collect by it in making any determination about individual’s last known address and information are aware: an individual with such accuracy, will contain a copy of the order and a (a) That individuals may not be relevance, timeliness, and completeness description of the information denied any right, benefit, or privilege as as is reasonably necessary to ensure disclosed. a result of refusing to provide their fairness to the individual in the (b) Emergency disclosures. Upon social security numbers, unless the determination; disclosing a record pertaining to an collection is authorized either by a (f) Except as to disclosures made to an individual made under compelling statute or by a regulation issued prior to agency or made under the FOIA, make circumstances affecting health or safety, 1975; reasonable efforts, prior to

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disseminating any record about an SUMMARY: The U.S. Consumer Product Consumer Product Safety Commission, individual, to ensure that the record is Safety Commission (‘‘CPSC,’’ 4330 East West Highway, Bethesda, MD accurate, relevant, timely, and complete; ‘‘Commission,’’ or ‘‘we’’) is amending the 20814; e-mail: [email protected]. (g) Maintain no record describing how criteria and process for Commission SUPPLEMENTARY INFORMATION: an individual exercises his or her First acceptance of accreditation of third Amendment rights unless such party conformity assessment bodies for I. Background maintenance is expressly authorized by testing to the lead paint ban regulations. Section 14(a)(3)(B)(i) of the Consumer statute or by the individual about whom We are taking this action to require Product Safety Act (CPSA), as added by the record is maintained or is pertinent CPSC and/or ASTM published test section 102(a)(2) of the Consumer to and within the scope of an authorized methods to be referenced by a third Product Safety Improvement Act of law enforcement activity; party conformity assessment body in the 2008 (CPSIA), Public Law 110–314, (h) When required by the Privacy Act, scope of its accreditation. directed the CPSC to publish a notice of maintain an accounting in the specified DATES: Effective date: The revised requirements for accreditation of third form of all disclosures of records by the requirements are effective April 5, 2011. party conformity assessment bodies to agency to persons, organizations, or Comment date: Comments in test children’s products for conformity agencies; response to this notice of requirements with the Commission’s regulations at 16 (i) Maintain and use records with care should be submitted by May 5, 2011. CFR part 1303, Ban of Lead-Containing in order to prevent the unauthorized or Comments on this notice should be Paint and Certain Consumer Products inadvertent disclosure of a record to captioned, ‘‘Third Party Testing for Bearing Lead-Containing Paint (the lead anyone; and Certain Children’s Products; paint ban). In the Federal Register of (j) Notify the appropriate agency Requirements for Accreditation of Third September 22, 2008, the Commission official of any record that contains Party Conformity Assessment Bodies— published a notice of requirements for information that the Privacy Act does Lead Paint.’’ accreditation of third party conformity not permit the agency to maintain. assessment bodies to test children’s ADDRESSES: You may submit comments, products for conformity with the lead identified by Docket No. CPSC–2008– § 304.33 Preservation of records. paint ban under 16 CFR part 1303 0033, by any of the following methods: The agency will preserve all (73 FR 54564). Electronic Submissions: Submit correspondence pertaining to the In response to the September 22, 2008 electronic comments in the following requests that it receives under this notice of requirements, the International subpart, as well as copies of all way: Laboratory Accreditation Cooperation Federal eRulemaking Portal: http:// requested records, until disposition or (ILAC) and the American Association www.regulations.gov. Follow the destruction is authorized by title 44 of for Laboratory Accreditation (A2LA) instructions for submitting comments. the United States Code or the National submitted letters asking us to specify To ensure timely processing of Archives and Records Administration’s test methods to ensure that accreditation comments, the Commission is no longer General Records Schedule 14. Records bodies are able to determine the will not be disposed of while they are accepting comments submitted by acceptable technologies and methods for the subject of a pending request, appeal, electronic mail (e-mail) except through lead analyses. The September 22, 2008 or lawsuit under the Act. http://www.regulations.gov. notice of requirements stated that the Written Submissions: Submit written accreditation must be to the § 304.34 Other rights and services. submissions in the following way: International Standards Organization Mail/Hand delivery/Courier (for Nothing in this subpart shall be (ISO)/International Electrotechnical paper, disk, or CD–ROM submissions) construed to entitle any person, as of Commission (IEC) Standard ISO/IEC preferably in five copies, to: Office of the right, to any service or to the disclosure 17025:2005, ‘‘General Requirements for Secretary, U.S. Consumer Product of any record to which such person is the Competence of Testing and Safety Commission, Room 820, 4330 not entitled under the Privacy Act. Calibration Laboratories,’’ and that the East West Highway, Bethesda, MD Dated: March 30, 2011. scope of the accreditation must include 20814; telephone (301) 504–7923. testing to the requirements of 16 CFR Shawne C. McGibbon, Instructions: All submissions received part 1303. However, these requirements General Counsel. must include the agency name and for accreditation did not reference a [FR Doc. 2011–7976 Filed 4–4–11; 8:45 am] docket number for this notice. All specific test method, although the CPSC BILLING CODE 6110–01–P comments received may be posted staff’s test method (CPSC–CH–E1003– without change to http:// 09) was made available on the CPSC www.regulations.gov, including any Web site at: http://www.cpsc.gov/about/ CONSUMER PRODUCT SAFETY personal information provided. Do not cpsia/CPSC-CH-E1003-09.pdf. COMMISSION submit confidential business Therefore, to require certain test information, trade secret information, or 16 CFR Part 1303 methods that are acceptable to the CPSC other sensitive or protected information for testing for lead in paint, we are [CPSC Docket No. CPSC–2008–0033] (such as a Social Security Number) amending the notice of requirements to electronically; if furnished at all, such state that the scope of the third party Third Party Testing for Certain information should be submitted in conformity assessment body’s Children’s Products; Notice of writing. accreditation shall specify certain test Requirements for Accreditation of Docket: For access to the docket to methodologies. Third Party Conformity Assessment read background documents or The Commission is revising the Bodies—Lead Paint comments received, go to http:// September 22, 2008 notice of www.regulations.gov. AGENCY: U.S. Consumer Product Safety requirements to require reference of Commission. FOR FURTHER INFORMATION CONTACT: specific test methods for CPSC Robert ‘‘Jay’’ Howell, Assistant Executive acceptance of accreditation of third ACTION: Notice of requirements; revision Director for he Office of Hazard party conformity assessment bodies to of testing terms. Identification and Reduction, U.S. assess conformity with 16 CFR part

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1303. One or more of the following test http://www.cpsc.gov/ABOUT/Cpsia/ test to 16 CFR part 1303 according to methods must be referenced: The leadinpaintmeasure.pdf and http:// one or more test methods for up to one existing CPSC Standard Operating www.cpsc.gov/ABOUT/Cpsia/ year after publication of this notice in Procedure for Determining Lead (Pb) in leadinpaintmeasure_update.pdf. XFR the Federal Register. After one year Paint and Other Similar Surface methods and equipment other than from the publication of this notice in the Coatings, CPSC–CH–E1003–09 and/or those specified in ASTM F2853–10 are Federal Register, the option for third CPSC–CH–E1003–09.1 and/or, ASTM not considered effective for testing in party conformity assessment bodies to F2853–10, ‘‘Standard Test Method for paint and surface coatings for the apply for CPSC-acceptance of Determination of Lead in Paint Layers purpose of determining conformity with accreditation to 16 CFR part 1303 and Similar Coatings or in Substrates 16 CFR part 1303 at this time. We are without reference to a CPSC required and Homogenous Materials by Energy working with the National Institute of test method will not be permitted. Dispersive X-Ray Fluorescence Standards and Technology (NIST) to To make it easier for interested parties Spectrometry Using Multiple develop and release a lead in paint to understand the nature of the Monochromatic Excitation Beams.’’ standard reference material (SRM) 2569, revisions, we are republishing the notice Test Method CPSC–CH–E1003–09 consisting of a thin, uniform film with of requirements in its entirety for was revised in Test Method CPSC–CH– thickness and lead concentrations readability. The republished notice E1003–09.1 to reflect ministerial edits appropriate to testing of painted incorporates several nonsubstantive and remove the statement that the rules surfaces, and which would be suitable changes or grammatical changes, such for accreditation for lead in paint testing for validating ASTM F2853–10. This as replacing the term ‘‘laboratory’’ with do not explicitly require the use of a SRM may become available in 2011. We ‘‘third party conformity assessment particular standard operating procedure. also are aware that other commercial body.’’ These changes were made to Additionally, the following statement reference materials are now available make the notice of requirements was added. ‘‘Adjustments may be that may be suitable for validating consistent with other recent notices of necessary to achieve total digestion for ASTM F2853–10. requirements published in the Federal certain paints and should be based on Many third party conformity Register. See, e.g., Third Party Testing sound chemistry knowledge and assessment bodies operate on a two year for Certain Children’s Products; appropriate acids for the sample cycle for review and renewal of Children’s Sleepwear, Sizes 0 Through material being analyzed.’’ It is still based accreditation. Accordingly, in order to 6X and 7 Through 14: Requirements for on standard test procedures, such as give third party conformity assessment Accreditation of Third Party Conformity ASTM International (formerly the bodies sufficient time to amend their Assessment Bodies, (75 FR 70911 American Society for Testing and scope documents to reflect the specific (November 19, 2010)); Third Party Materials) ASTM E1645, ASTM test methods accepted by the Testing for Certain Children’s Products; E1613–04, and Association of Official Commission, CPSC–CH–E1003–09 Youth All-Terrain Vehicles: Analytical Chemists (AOAC) standard and/or CPSC–CH–E1003–09.1 and/or Requirements for Accreditation of Third AOAC 974.02. This test method will be ASTM F2853–10, CPSC-accepted third Party Conformity Assessment Bodies, made available on the CPSC Web site at: party conformity assessment bodies that (75 FR 52616 (August 27, 2010)). http://www.cpsc.gov/about/cpsia/CPSC– are listed on the CPSC Web site as CH–E1003–09_1.pdf. approved to 16 CFR part 1303 (without II. Accreditation Requirements In addition to the CPCS’s test reference to a test method) will have The notice of requirements that methods, CPSC staff finds that ASTM two years from the date of publication appeared in the Federal Register on F2853–10, ‘‘Standard Test Method for of this notice in the Federal Register to September 22, 2008 (73 FR 5456) is Determination of Lead in Paint Layers reapply and be accepted by the CPSC for amended to read as follows: and Similar Coatings or in Substrates CPSC–CH–E1003–09 and/or CPSC–CH– A. Baseline Third Party Conformity and Homogenous Materials by Energy E1003–09.1 and/or ASTM F2853–10 for Assessment Body Accreditation Dispersive X-Ray Fluorescence testing to the lead in paint regulation at Requirements Spectrometry Using Multiple 16 CFR part 1303. After that date, Monochromatic Excitation Beams.’’ previously accepted third party For a third party conformity which uses a specific type of X-Ray conformity assessment bodies that test assessment body to be CPSC-accepted as Fluorescence (XRF) technology, may be for 16 CFR part 1303 must have been accredited to test children’s products for used as a test method and is as effective, accepted by the CPSC for one or more conformity with the lead paint ban and precise, and reliable as method of the required test methods to maintain 16 CFR part 1303, it must be accredited CPSC–CH–E1003–09 posted on the CPSC-accepted status. All accreditations to ISO/IEC 17025–2005 by an CPSC Web site. The standard is must be by an accreditation body that is accreditation body that is a signatory to available on the ASTM Web site at: a signatory to the International the ILAC–MRA, and the accreditation http://www.astm.org/Standards/ Laboratory Accreditation Cooperation— must be registered with, and accepted F2853.htm. Supporting data about the Mutual Recognition Arrangement by, the Commission. A listing of associated interlaboratory research (ILAC–MRA) and the scope of the ILAC–MRA signatory accreditation report has been filed with ASTM and accreditation must include: bodies is available on the Internet at: can be obtained by contacting ASTM • 16 CFR part 1303 (CPSC–CH– http://ilac.org/membersbycategory.html. and requesting Research Report RR:F40– E1003–09 and/or CPSC–CH–E1003– The scope of the accreditation must 1001. Our findings are based on a study 09.1), and/or include 16 CFR part 1303 (CPSC–CH– conducted in August 2009, as updated • 16 CFR part 1303 (ASTM F2853– E1003–09 and/or CPSC–CH–E1003– in December 2010, which evaluates the 10). 09.1) and/or 16 CFR part 1303 (ASTM effectiveness, precision, and reliability New applicants seeking CPSC F2853–10). of XRF methods and other alternative acceptance of accreditation to test to The Commission will maintain on its methods for measuring lead in paint or 16 CFR part 1303 will have the option Web site an up-to-date listing of third other surface coatings when used in to apply without reference to a specific party conformity assessment bodies children’s products. The studies on XRF test method under 16 CFR part 1303 or whose accreditations it has accepted are published on the CPSC’s Web site at: to apply to the CPSC for acceptance to and the scope of each accreditation.

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Once the Commission adds a third party person, including another governmental seeking accredited status, when the conformity assessment body to that list, entity; CPSC staff’s review is complete, the the third party conformity assessment • The third party conformity CPSC staff transmits its body may commence testing of assessment body is not accorded more recommendation on accreditation to the children’s products to support the favorable treatment than other third Commission for consideration. (A third manufacturer’s certification that the party conformity assessment bodies in party conformity assessment body that product complies with 16 CRF part the same nation who have been ultimately may seek acceptance as a 1303. accredited; firewalled third party conformity • The third party conformity assessment body also initially can B. Additional Accreditation assessment body’s testing results are request acceptance as a third party Requirements for Firewalled Conformity accorded no greater weight by other conformity assessment body accredited Assessment Bodies governmental authorities than those of for testing of children’s products other In addition to the baseline other accredited third party conformity than those of its owners.) If the assessment bodies; and Commission accepts a CPSC staff accreditation requirements in Section • II.A of this document above, firewalled The third party conformity recommendation to accredit a firewalled conformity assessment bodies seeking assessment body does not exercise conformity assessment body, the accredited status by the CPSC must undue influence over other firewalled conformity assessment body submit to the Commission copies, in governmental authorities on matters will be added to the CPSC’s list of English, of their training documents, affecting its operations or on decisions accredited third party conformity showing how employees are trained to by other governmental authorities assessment bodies. In each case, the notify the Commission immediately and controlling distribution of products Commission will notify the third party confidentially of any attempt by the based on outcomes of the third party conformity assessment body manufacturer, private labeler, or other conformity assessment body’s electronically of acceptance of its interested party to hide or exert undue conformity assessments. accreditation. All information to The Commission will accept the influence over the third party support an accreditation acceptance accreditation of a governmental third conformity assessment body’s test request must be provided in the English party conformity assessment body if it results. This additional requirement language. meets the baseline accreditation applies to any third party conformity Once the Commission adds a third requirements of part II.A of this assessment body in which a party conformity assessment body to the document above and meets the manufacturer or private labeler of a list, the third party conformity additional conditions stated here. To children’s product to be tested by the assessment body then may begin testing obtain this assurance, CPSC staff will third party conformity assessment body children’s products to support engage the governmental entities owns an interest of 10 percent or more. certification of compliance with 16 CFR seeking accreditation. While the Commission is not addressing part 1303, for which it has been common parentage of a third party III. How does a third party conformity accredited. New applicants for CPSC acceptance conformity assessment body and a assessment body apply for acceptance of accreditation to 16 CFR part 1303 will children’s product manufacturer at this of its accreditation? have the option to apply to the CPSC time, it will be vigilant to see whether The Commission has established an without reference to a specific test this issue needs to be addressed in the electronic accreditation acceptance and method or to apply for CPSC acceptance future. registration system accessed via the to include a specific reference to 16 CFR As required by section 14(f)(2)(D) of Commission’s Internet site at: http:// part 1303 (CPSC–CH–E1003–09 and/or the CPSA, the Commission must accept www.cpsc.gov/about/cpsia/ CPSC–CH–E1003–09.1) and/or 16 CFR formally, by order, the application from labaccred.html. The applicant provides, part 1303 (ASTM F2853–10) for up to a third party conformity assessment in English, basic identifying information one year after publication of this notice body before the third party conformity concerning its location, the type of in the Federal Register. After one year, assessment body can become accredited accreditation it is seeking, and the option to apply for accreditation to by the CPSC as a firewalled conformity electronic copies of its accreditation 16 CFR part 1303 without reference to assessment body. certificate and scope statement by its a CPSC required test method will not be C. Additional Accreditation ILAC–MRA signatory accreditation permitted. Requirements for Governmental body, and firewalled third party CPSC-accepted third party conformity Conformity Assessment Bodies conformity assessment body training assessment bodies for 16 CFR part 1303 document(s), if relevant. without a reference to one of the In addition to the baseline Commission staff will review the specified test methods have up to two accreditation requirements of part II.A submission for accuracy and years from the date of publication of this of this document above, the CPSIA completeness. In the case of baseline notice in the Federal Register to reapply permits accreditation of a third party third party conformity assessment and become accepted by the CPSC for conformity assessment body owned or bodies and government-owned or 16 CFR part 1303 (CPSC–CH–E1003–09 controlled, in whole or in part, by a government-operated conformity and/or CPSC–CH–E1003–09.1) and/or government if: assessment bodies, when that review 16 CFR part 1303 (ASTM F2853–10). To • To the extent practicable, and any necessary discussions with the maintain CPSC-accepted status, third manufacturers or private labelers applicant are completed satisfactorily, party conformity assessment bodies that located in any nation are permitted to the third party conformity assessment are CPSC-accepted for 16 CFR part 1303 choose conformity assessment bodies body in question is added to the CPSC’s without reference to one of the required that are not owned or controlled by the list of accredited third party conformity test methods must reapply with, and be government of that nation; assessment bodies at: http:// accepted by, the CPSC within the two- • The third party conformity www.cpsc.gov/about/cpsia/ year period, irrespective of whether the assessment body’s testing results are not labaccred.html. In the case of a scope document from their accreditation subject to undue influence by any other firewalled conformity assessment body body that was supplied with their

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earlier CPSC application included a Dated: March 30, 2011. the human environment. Therefore, reference to one of the required test Todd A. Stevenson, neither an environmental assessment methods. Previously CPSC-accepted Secretary, Consumer Product Safety nor an environmental impact statement third party conformity assessment Commission. is required. bodies for 16 CFR part 1303 (including [FR Doc. 2011–7905 Filed 4–4–11; 8:45 am] Under section 512(c)(2)(F)(i) of the those that had one of the specified test BILLING CODE 6355–01–P Federal Food, Drug, and Cosmetic Act methods in their accreditation scope (21 U.S.C. 360b(c)(2)(F)(i)), this document that was supplied with their approval qualifies for 5 years of earlier CPSC application) must reapply DEPARTMENT OF HEALTH AND marketing exclusivity beginning on the to maintain CPSC acceptance because HUMAN SERVICES date of approval. the CPSC did not record references to test methods. If accepted, the third party Food and Drug Administration This rule does not meet the definition conformity assessment body will remain of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because on the list of accepted third party 21 CFR Part 520 it is a rule of ‘‘particular applicability.’’ conformity bodies whose accreditations [Docket No. FDA–2011–N–0003] Therefore, it is not subject to the the CPSC has accepted for 16 CFR part congressional review requirements in 1303. Oral Dosage Form New Animal Drugs; 5 U.S.C. 801–808. Robenacoxib IV. Acceptance of Children’s Product List of Subjects in 21 CFR Part 520 Certifications Based on Third Party AGENCY: Food and Drug Administration, Conformity Assessment Body Testing to HHS. Animal drugs. 16 CFR Part 1303 ACTION: Final rule. Therefore, under the Federal Food, Drug, and Cosmetic Act and under The September 22, 2008 Federal SUMMARY: The Food and Drug authority delegated to the Commissioner Register Notice of Requirements for Administration (FDA) is amending the of Food and Drugs and redelegated to Accreditation of Third Party Conformity animal drug regulations to reflect the Center for Veterinary Medicine, Assessment Bodies to Assess approval of an original new animal drug 21 CFR part 520 is amended as follows: Conformity with Part 1303 of Title 16, application (NADA) filed by Novartis Code of Federal Regulations established Animal Health US, Inc. The NADA PART 520—ORAL DOSAGE FORM that each manufacturer (including the provides for the veterinary prescription NEW ANIMAL DRUGS importer) or private labeler of children’s use of robenacoxib tablets in cats for the products subject to the lead paint ban control of postoperative pain and ■ 1. The authority citation for 21 CFR must have products that are inflammation. part 520 continues to read as follows: manufactured after December 21, 2008 DATES: This rule is effective April 5, Authority: 21 U.S.C. 360b. tested by a laboratory accredited (by the 2011. CPSC) and must issue a certificate of ■ 2. Add § 520.2075 to read as follows: compliance with the lead paint ban FOR FURTHER INFORMATION CONTACT: based upon that testing. Amy L. Omer, Center for Veterinary Medicine (HFV–114), Food and Drug § 520.2075 Robenacoxib. This amended notice of requirements Administration, 7500 Standish Pl., (a) Specifications. Each tablet published today addresses only the Rockville, MD 20855, 240–276–8336, contains 6 milligrams (mg) robenacoxib. CPSC acceptance criteria for a third e-mail: [email protected]. party conformity assessment body for (b) Sponsors. See No. 058198 in SUPPLEMENTARY INFORMATION: Novartis § 510.600(c) of this chapter. testing to the lead paint ban at 16 CFR Animal Health US, Inc., 3200 Northline part 1303. This amended notice does Ave., suite 300, Greensboro, NC 27408, (c) Conditions of use in cats—(1) not affect the already-established filed NADA 141–320 that provides for Amount. Administer 0.45 mg per pound criteria for CPSC acceptance of the veterinary prescription use of (/lb) (1 mg/kilogram (kg)) once daily. certificates of compliance. A product ONSIOR (robenacoxib) Tablets in cats (2) Indications for use. For the control manufacturer’s certificate of compliance for the control of postoperative pain and of postoperative pain and inflammation to 16 CFR part 1303 must be based on inflammation associated with associated with orthopedic surgery, testing by a third party conformity orthopedic surgery, ovariohysterectomy, ovariohysterectomy, and castration in assessment body that is posted on the and castration. The NADA is approved cats weighing at least 5.5 lb (2.5 kg) and CPSC Web site as accepted for 16 CFR as of March 8, 2011, and the regulations part 1303 at the time the product is at least 6 months of age; for up to a are amended in 21 CFR part 520 by maximum of 3 days. tested. The Commission will accept a adding § 520.2075 to reflect the certificate of compliance with 16 CFR approval. (3) Limitations. Federal law restricts part 1303, Ban of Lead-Containing Paint A summary of safety and effectiveness this drug to use by or on the order of for a children’s product based on testing data and information submitted to a licensed veterinarian. performed by an accredited (CPSC- support approval of this application Dated: March 31, 2011. accepted) third party conformity may be seen in the Division of Dockets Bernadette Dunham, assessment body (including a Management (HFA–305), Food and Drug government-owned or government- Administration, 5630 Fishers Lane, Director, Center for Veterinary Medicine. controlled conformity assessment body, rm. 1061, Rockville, MD 20852, between [FR Doc. 2011–8053 Filed 4–4–11; 8:45 am] or a firewalled conformity assessment 9 a.m. and 4 p.m., Monday through BILLING CODE 4160–01–P body) if the testing was conducted on a Friday. date for which the third party The agency has determined under conformity assessment body was listed 21 CFR 25.33 that this action is of a type as accepted by the CPSC for testing to that does not individually or the lead paint ban at 16 CFR part 1303. cumulatively have a significant effect on

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DEPARTMENT OF LABOR Employee Benefits Security required notice of a decision by the plan Administration, U.S. Department of sponsor to apply the special funding Employee Benefits Security Labor, (202) 693–8523, for questions rules. IRS Notice 2010–83 provides Administration relating to this document. Except for the guidance for sponsors of multiemployer IRS, the telephone numbers referenced defined benefit plans with respect to the 29 CFR Part 2520 above are not toll-free numbers. special funding rules under Code SUPPLEMENTARY INFORMATION: § 431(b)(8), as added by section Technical Revisions to Actuarial 211(a)(2) of the Pension Relief Act. IRS Information on Form 5500 Annual I. Background Notice 2011–3 provides guidance on the Return/Report for Pension Plans A. Annual Reporting special rules relating to funding relief Electing Funding Alternatives Under for single-employer defined benefit Pension Relief Act of 2010 Sections 101, 104, and 4065 of ERISA, pension plans (including multiple 29 U.S.C. 1021, 1024 and 1365, sections employer defined benefit pension plans) AGENCY: Employee Benefits Security 6058(a) and 6059(a) of the Code, 26 Administration, Labor. under Code § 430(c)(2)(D) and U.S.C. 6058(a) and 6059(a), and the § 430(c)(7), as added by section 201 of ACTION: Annual Reporting and regulations issued under those sections, the Pension Relief Act, and Code Disclosure for Form 5500. impose annual reporting and filing § 430(f)(3)(D), as added by section 204 of obligations on pension and welfare SUMMARY: This document announces the Act. benefit plans, as well as on certain other that certain technical revisions to the Certain technical revisions to the entities. Plan administrators, employers, Schedule MB (Multiemployer Defined Form 5500 Schedule MB and SB were and others generally satisfy these annual Benefit Plan and Certain Money necessary to conform the actuarial reporting obligations by the filing of the Purchase Plan Actuarial Information) reporting requirements for defined Form 5500 Annual Return/Report of and the Schedule SB (Single-Employer benefit pension plans to the application Employee Benefit Plan, including its Defined Benefit Plan Actuarial of funding relief under the Pension schedules and attachments (Form 5500 Information) of the Form 5500 Annual Relief Act. The Internal Revenue Service Annual Return/Report), in accordance Return/Report of Employee Benefit Plan announced and described those with the instructions and related have been adopted in IRS Notice 2010– technical revisions in IRS Notice 2010– regulations. 83 (2010–51 I.R.B. 862) and IRS Notice 83 and Notice 2011–3. Specifically, the The Form 5500 Annual Return/Report notices provide that a Schedule MB or 2011–3 (2011–2 I.R.B. 263) to reflect is the principal source of information funding relief alternatives retroactively Schedule SB that was filed without and data available to the Department of reflecting application of the special available to defined benefit pension Labor (Department or Labor), the plans under the Preservation of Access funding rules or was filed reflecting Internal Revenue Service (IRS), and the application of the special funding rules, to Care for Medicare Beneficiaries and Pension Benefit Guaranty Corporation Pension Relief Act of 2010 (Pension but using calculations that were (PBGC) (collectively, Agencies) different from those required by IRS Relief Act). The information that would concerning the operations, funding, and be required either by way of amendment Notice 2010–83 or Notice 2011–3, need investments of pension and welfare not be amended. Instead, the Schedule of the 2008 or 2009 Annual Return/ benefit plans. Actuarial information on Report or providing an attachment to MB or Schedule SB filed for a defined benefit pension plans is subsequent plan year that is no later the 2009 or 2010 Annual Return/Report required to be reported as part of the in accordance with the IRS Notices, will than the plan year beginning in 2010 Form 5500 Annual Return/Report on the that must include an attachment also be added to the 2011 and later Schedule MB or the Schedule SB. The Schedule MB (Multiemployer Defined showing how the information regarding Form 5500 Annual Return/Report the special funding rules on any earlier Benefit Plan and Certain Money constitutes an integral part of each year Schedule MB or SB that did not Purchase Plan Actuarial Information) Agency’s enforcement, research, and comply with the notices, would have and the Schedule SB (Single-Employer policy formulation programs, and is a differed if it had complied. In addition, Defined Benefit Plan Actuarial source of information and data for use the IRS Notices describe the application Information) of the Form 5500 Annual by other federal agencies, Congress, and of funding relief under the Pension Return/Report of Employee Benefit the private sector in assessing employee Relief Act to the 2011 plan year and Plan. Compliance with the Schedule SB benefit, tax, and economic trends and future plan years. These rules require and Schedule MB, as modified, will policies. The Form 5500 Annual Return/ changes to Schedule MB and Schedule satisfy the pertinent Form 5500 actuarial Report also serves as a primary means SB for the 2011 plan year. information reporting requirements for by which plan operations can be the Department of Labor. monitored by participants and II. Good Cause for Exemption From DATES: Effective Date: April 5, 2011. beneficiaries and by the general public. Public Notice and Comment and FOR FURTHER INFORMATION CONTACT: Immediate Effective Date Steven Klubock, Internal Revenue B. Pension Relief Act and Changes to To issue a final rule without public Service (IRS), at the Employee Plans Actuarial Schedules notice and comment, an agency must taxpayer assistance answering service at The Pension Relief Act, Public Law find good cause that notice and 1–877–829–5500 (a toll-free number), 111–192, 124 Stat 1280 (2010), enacted comment are impracticable, for questions relating to the Schedules on June 25, 2010, provided retroactive unnecessary, or contrary to the public MB and SB requirements under IRS pension funding relief for single- interest. 5 U.S.C. 553(b). To issue a rule Notices 2010–83 and 2011–3; Grace employer and multiemployer defined that is immediately effective, an agency Kraemer, Pension Benefit Guaranty benefit pension plans that are subject to similarly must find good cause for Corporation (PBGC), (202) 326–4024, for the reporting requirements of Title I of dispensing with the 30-day delay questions relating to annual reporting ERISA. The IRS issued guidance in the required by the Administrative requirements under Title IV of ERISA in form of questions and answers on the Procedure Act (APA). the technical revisions of the Schedules application of the special funding rules The retroactive availability of the MB and SB; and Elizabeth A. Goodman, under the Pension Relief Act and the funding relief under the Pension Relief

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Act for sponsors of defined benefit purposes of Executive Order 12866. continues to attain the 1997 annual pension plans created an immediate Therefore, this action has not been PM2.5 NAAQS. need for changes to the Schedule MB reviewed by OMB pursuant to the DATES: Effective Date: This final rule is and Schedule SB reporting Executive Order. effective on May 5, 2011. requirements. Without these changes, IV. Paperwork Reduction Act ADDRESSES: EPA has established a accurate and complete Schedules MB docket for this action under Docket ID and SB cannot be filed with respect to In accordance with the requirements Number EPA–R04–OAR–2010–0798. All plans to which the funding relief of the Paperwork Reduction Act of 1995 documents in the docket are listed in applies. The information that would not (PRA) (44 U.S.C. 3501 et seq.), the Form the http://www.regulations.gov Web otherwise be provided under the current 5500 information collection request site. Although listed in the electronic schedules is essential for the Agencies (ICR) has been approved by OMB under docket, some information is not publicly to monitor and enforce compliance with control number 1210–0110, which available, i.e., confidential business the special funding rules under the currently is scheduled to expire on information (CBI) or other information Pension Relief Act. The IRS Notices March 31, 2014. This notice does not whose disclosure is restricted by statute. 2010–83 and 2011–3, including the implement a substantive or material Certain other material, such as guidance superseding portions of the change to the ICR; therefore, the copyrighted material, is not placed on instructions to Schedule MB and Department has not requested OMB the Internet and will be publicly Schedule SB for the 2008, 2009, and review at this time. available only in hard copy form. 2010 plan years, have already been Signed at Washington, DC, this 24th day of Publicly available docket materials are approved under the Paperwork March 2011. available either electronically through Reduction Act and released to the Phyllis C. Borzi, http://www.regulations.gov or in hard public. In addition, a relatively small Assistant Secretary, Employee Benefits copy for public inspection during number of Form 5500 filers, comprised Security Administration, U.S. Department of normal business hours at the Regulatory of only those filers for defined benefit Labor. Development Section, Air Planning pension plans to which the optional [FR Doc. 2011–7557 Filed 4–4–11; 8:45 am] Branch, Air, Pesticides and Toxics relief offered under the Pension Relief BILLING CODE P Management Division, U.S. Act applies, are affected by these Environmental Protection Agency, Schedule MB and Schedule SB changes. Region 4, 61 Forsyth Street, SW., Accordingly, the Department finds for ENVIRONMENTAL PROTECTION Atlanta, Georgia 30303–8960. good cause that it would be AGENCY FOR FURTHER INFORMATION CONTACT: Joel impracticable and contrary to the public Huey or Sara Waterson, Regulatory interest to delay putting the technical 40 CFR Part 52 revisions to Schedule MB and SB into Development Section, Air Planning place until completion of a full notice [EPA–R04–OAR–2010–0798–201048; FRL– Branch, Air, Pesticides and Toxics 9288–8] and public comment process. For the Management Division, U.S. same reasons, the Department also finds Environmental Protection Agency, Approval and Promulgation of Region 4, 61 Forsyth Street, SW., good cause to adopt an effective date Implementation Plans and that would be less than 30 days after the Atlanta, Georgia 30303–8960. Mr. Huey Designations of Areas for Air Quality may be reached by phone at (404) 562– publication in the Federal Register Planning Purposes; Georgia: Rome; pursuant to the APA. 5 U.S.C. 553(d). 9104 or via electronic mail at Determination of Attaining Data for the [email protected]. Ms. Waterson may Accordingly, the adoption of the 1997 Annual Fine Particulate Standard technical changes affecting the actuarial be reached by phone at (404) 562–9061 schedules for the 2008, 2009, and 2010 AGENCY: Environmental Protection or via electronic mail at Form 5500 Annual Return/Report will Agency (EPA). [email protected]. be effective as of the date of publication ACTION: Final rule. SUPPLEMENTARY INFORMATION: in the Federal Register. Related SUMMARY: EPA has determined that the I. What action is EPA taking? information also will be required to be II. What is the effect of this action? provided on the 2011 and later Form Rome, Georgia, fine particulate (PM2.5) III. What is EPA’s final action? 5500 Annual Return/Report with nonattainment area (hereafter referred to IV. Statutory and Executive Order Reviews as ‘‘the Rome Area’’ or ‘‘Area’’) has respect to those plans to which the I. What action is EPA taking? alternative funding methods under the attained the 1997 annual average PM2.5 Pension Relief Act apply, as described National Ambient Air Quality Standard EPA is determining that the Rome in the Act, but for 2011 and later the (NAAQS). The Rome Area is comprised Area (comprised of Floyd County in its information will be included in the of Floyd County in its entirety. This entirety) has attaining data for the 1997 schedules and instructions, rather than determination of attainment is based annual PM2.5 NAAQS. This filers having to create attachments as upon complete, quality-assured and determination is based upon quality described in IRS Notice 2010–83 and certified ambient air monitoring data for assured, quality controlled and certified Notice 2011–3. The 2011 and later Form the 2007–2009 period showing that the ambient air monitoring data that shows 5500 Annual Return/Report, Schedule Area has monitored attainment of the the Area has monitored attainment of SB, will also require a plan to disclose 1997 annual PM2.5 NAAQS. The the 1997 annual PM2.5 NAAQS based on its status as an eligible charity plan in requirements for the Area to submit an the 2007–2009 data. connection with a special effective date attainment demonstration and Other specific requirements of the provided under the Pension Relief Act. associated reasonably available control determination and the rationale for measures (RACM), a reasonable further EPA’s action are explained in the notice III. Executive Order 12866 progress (RFP) plan, contingency of proposed rulemaking (NPR) The Office of Management and Budget measures, and other planning State published on December 13, 2010 (75 FR (OMB) has determined that this Implementation Plan (SIP) revisions 77595). The first and second quarters of document does not constitute a related to attainment of the standard 2008 were incomplete with around 73 ‘‘significant regulatory action’’ for shall be suspended so long as the Area percent completeness each. Data

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substitution, as described in 40 CFR part • Is not a ‘‘significant regulatory cannot take effect until 60 days after it 50, Appendix N, was used to make a action’’ subject to review by the Office is published in the Federal Register. complete record. EPA proposed that the of Management and Budget under This action is not a ‘‘major rule’’ as Rome Area is meeting the 1997 annual Executive Order 12866 (58 FR 51735, defined by 5 U.S.C. 804(2). October 4, 1993); PM2.5 NAAQS both with and without Under section 307(b)(1) of the CAA, data substitution and is now meeting • Does not impose an information petitions for judicial review of this the 1997 annual PM NAAQS. The collection burden under the provisions 2.5 action must be filed in the United States design value without data substitution, of the Paperwork Reduction Act (44 13.3 μg/m3, is considered to be the U.S.C. 3501 et seq.); Court of Appeals for the appropriate • official design value. The comment Is certified as not having a circuit by June 6, 2011. Filing a petition period closed on January 13, 2011. No significant economic impact on a for reconsideration by the Administrator adverse comments were received in substantial number of small entities of this final rule does not affect the response to the NPR. under the Regulatory Flexibility Act finality of this action for the purposes of (5 U.S.C. 601 et seq.); judicial review nor does it extend the II. What is the effect of this action? • Does not contain any unfunded time within which a petition for judicial This final action, in accordance with mandate or significantly or uniquely review may be filed, and shall not 40 CFR 51.1004(c), suspends the affect small governments, as described postpone the effectiveness of such rule requirements for this Area to submit in the Unfunded Mandates Reform Act or action. This action may not be attainment demonstrations, associated of 1995 (Pub. L. 104–4); challenged later in proceedings to • Does not have Federalism RACM, RFP plans, contingency enforce its requirements. (See section implications as specified in Executive measures, and other planning SIPs 307(b)(2)). Order 13132 (64 FR 43255, August 10, related to attainment of the 1997 annual 1999); List of Subjects in 40 CFR Part 52 PM2.5 NAAQS as long as this Area • Is not an economically significant

continues to meet the 1997 annual PM2.5 regulatory action based on health or Environmental protection, Air NAAQS. Finalizing this action does not safety risks subject to Executive Order pollution control, Incorporation by constitute a redesignation of the Rome 13045 (62 FR 19885, April 23, 1997); reference, Particulate matter. Area to attainment for the 1997 annual • Is not a significant regulatory action Dated: March 24, 2011. PM2.5 NAAQS under section 107(d)(3) of subject to Executive Order 13211 (66 FR the Clean Air Act (CAA). Further, 28355, May 22, 2001); A. Stanley Meiburg, finalizing this action does not involve • Is not subject to requirements of Acting Regional Administrator, Region 4. approving maintenance plans for the Section 12(d) of the National Area as required under section 175A of Technology Transfer and Advancement 40 CFR part 52 is amended as follows: the CAA, nor does it involve a Act of 1995 (15 U.S.C. 272 note) because PART 52—[AMENDED] determination that the Area has met all application of those requirements would requirements for a redesignation. be inconsistent with the CAA; and • ■ 1. The authority citation for part 52 III. What is EPA’s final action? Does not provide EPA with the discretionary authority to address, as continues to read as follows: EPA is determining that the Rome appropriate, disproportionate human Authority: 42 U.S.C. 7401 et seq. Area has attaining data for the 1997 health or environmental effects, using annual PM2.5 NAAQS. This practicable and legally permissible Subpart L—Georgia determination is based upon quality methods, under Executive Order 12898 assured, quality controlled, and certified (59 FR 7629, February 16, 1994). In ■ 2. Section 52.578 is amended by ambient air monitoring data showing addition, this 1997 PM2.5 clean NAAQS adding paragraphs (a) and (b) to read as that this Area has monitored attainment data determination for the Rome Area follows: of the 1997 annual PM2.5 NAAQS during does not have tribal implications as the period 2007–2009. This final action, specified by Executive Order 13175 (65 § 52.578 Control Strategy: Sulfur oxides in accordance with 40 CFR 51.1004(c), FR 67249, November 9, 2000), because and particulate matter. will suspend the requirements for this the SIP is not approved to apply in * * * * * Area to submit attainment Indian country located in the state, and (a) Determination of Attaining Data. demonstrations, associated RACM, RFP EPA notes that it will not impose EPA has determined, as of April 5, 2011, plans, contingency measures, and other substantial direct costs on tribal the Rome, Georgia, nonattainment area planning SIPs related to attainment of governments or preempt tribal law. has attaining data for the 1997 annual the 1997 annual PM2.5 NAAQS as long The Congressional Review Act, 5 as the Area continues to meet the 1997 U.S.C. 801 et seq., as added by the Small PM2.5 NAAQS. This determination, in annual PM2.5 NAAQS. EPA is taking this Business Regulatory Enforcement accordance with 40 CFR 52.1004(c), final action because it is in accordance Fairness Act of 1996, generally provides suspends the requirements for this area with the CAA and EPA policy and that before a rule may take effect, the to submit an attainment demonstration, guidance. agency promulgating the rule must associated reasonably available control measures, a reasonable further progress IV. Statutory and Executive Order submit a rule report, which includes a plan, contingency measures, and other Reviews copy of the rule, to each House of the Congress and to the Comptroller General planning SIPs related to attainment of This action makes a determination of of the United States. EPA will submit a the standard for as long as this area attainment based on air quality, and will report containing this action and other continues to meet the 1997 annual PM2.5 result in the suspension of certain required information to the U.S. Senate, NAAQS. federal requirements, and it will not the U.S. House of Representatives, and (b) [Reserved] impose additional requirements beyond the Comptroller General of the United those imposed by State law. For that States prior to publication of the rule in [FR Doc. 2011–7773 Filed 4–4–11; 8:45 am] reason, this action: the Federal Register. A major rule BILLING CODE 6560–50–P

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DEPARTMENT OF COMMERCE NTIA regularly revises the NTIA subject to a penalty for failure to comply Manual and makes public this with, a collection of information subject National Telecommunications and document and all revisions. Federal to the PRA, unless that collection Information Administration agencies are required to comply with displays a currently valid OMB Control the specifications in the NTIA Manual Number. 47 CFR Part 300 when requesting frequency assignments for use of the radio frequency spectrum. Executive Order 12866 [Docket Number 110323214–1214–01] See 47 U.S.C. 901 et seq., Executive This rule has been determined to be RIN 0660–AA24 Order 12046 (March 27, 1978), 43 FR not significant for purposes of Executive 13349, 3 CFR 1978 Comp. at 158. Order 12866. Revision to the Manual of Regulations This rule updates section 300.1(b) of and Procedures for Federal Radio title 47 of the Code of Federal Administrative Procedure Act/ Frequency Management Regulations to specify the version of the Regulatory Flexibility Act NTIA Manual with which federal NTIA finds good cause under 5 U.S.C. AGENCY: National Telecommunications agencies must comply when requesting 553(b)(B) to waive prior notice and and Information Administration, U.S. frequency assignments for use of the opportunity for public comment as it is Department of Commerce. radio frequency spectrum. In particular, unnecessary. This action amends the ACTION: Final rule. this rule amends section 300.1(b) by regulations to include the date of the replacing ‘‘May 2010’’ with ‘‘September most current version of the NTIA SUMMARY: The National 2010.’’ See Revision to the Manual of Manual. These changes do not impact Telecommunications and Information Regulations and Procedures for Federal the rights or obligations of the public. Administration (NTIA) hereby makes Radio Frequency Management, 75 FR The NTIA Manual applies only to certain changes to its regulations, which 54790, 54791 (Sept. 9, 2010) (revising Federal agencies. Because these changes relate to the public availability of the the Manual through May 2010). Upon impact only federal agencies, NTIA Manual of Regulations and Procedures the effective date of this rule, Federal finds it unnecessary to provide for the for Federal Radio Frequency agencies must comply with the notice and comment requirements of 5 Management (NTIA Manual). requirements set forth in the January U.S.C. 553. NTIA also finds good cause Specifically, NTIA updates the version 2008 edition of the NTIA Manual, as under 5 U.S.C. 553(d)(3) to waive the of the Manual of Regulations and revised through September 2010. 30-day delay in effectiveness for the Procedures for Federal Radio Frequency The NTIA Manual is scheduled for reasons provided above. Because notice Management with which federal revision in January, May, and and opportunity for comment are not agencies must comply when requesting September of each year and is submitted required pursuant to 5 U.S.C. 553 or any use of the radio frequency spectrum. to the Director of the Federal Register other law, the analytical requirements of DATES: Effective Date: This regulation is for Incorporation by Reference approval. the Regulatory Flexibility Act (5 U.S.C. effective on April 5, 2011. The The Director of the Federal Register 601 et seq.) are not applicable. incorporation by reference of certain approved this incorporation by Therefore, a regulatory flexibility publications listed in the rule is reference in accordance with 5 U.S.C. analysis is not required and has not approved by the Director of the Federal 552(a) and part 51 of title 1 of the Code been prepared. Register as of April 5, 2011. of Federal Regulations. The NTIA ADDRESSES: A reference copy of the Manual is available from the Executive Order 13132 NTIA Manual, including all revisions in Superintendent of Documents, U.S. This rule does not contain policies effect, is available in the Office of Government Printing Office, having federalism implications as that Spectrum Management, 1401 Washington, DC 20402, by referring to term is defined in EO 13132. Constitution Avenue, NW., Room 1087, Catalog Number 903–008–00000–8. A Regulatory Text Washington, DC 20230. reference copy of the NTIA Manual, including all revisions in effect, is FOR FURTHER INFORMATION CONTACT: List of Subjects in 47 CFR Part 300 available in the Office of Spectrum William Mitchell, Office of Spectrum Management, 1401 Constitution Incorporation by reference, Radio. Management, at (202) 482–8124 or Avenue, NW., Room 1087, Washington, For the reasons set forth in the [email protected]. DC 20230, or call William Mitchell on preamble, NTIA amends title 47, part SUPPLEMENTARY INFORMATION: (202) 482–8124, and available online at 300 as follows: Background http://www.ntia.doc.gov/osmhome/ redbook/redbook.html. The NTIA PART 300—MANUAL OF NTIA authorizes the U.S. Manual is also on file at the National REGULATIONS AND PROCEDURES Government’s use of the radio frequency Archives and Records Administration FOR FEDERAL RADIO FREQUENCY spectrum. 47 U.S.C. 902(b)(2)(A). As (NARA). For information on the MANAGEMENT part of this authority, NTIA developed availability of this material at NARA, ■ 1. The authority citation for part 300 the NTIA Manual to provide further call (202) 741–6030, or go to http:// continues to read as follows: guidance to applicable federal agencies. www.archives.gov/federal_register/ The NTIA Manual is the compilation of code_of_federal_regulations/ Authority: 47 U.S.C. 901 et seq., Executive policies and procedures that govern the ibr_locations.html. Order 12046 (March 27, 1978), 43 FR 13349, use of the radio frequency spectrum by 3 CFR 1978 Comp., p. 158. Paperwork Reduction Act the U.S. Government. Federal ■ 2. Section 300.1 (b) is revised to read government agencies are required to This action does not contain as follows: follow these policies and procedures in collection of information requirements their use of the spectrum. subject to the Paperwork Reduction Act § 300.1 Incorporation by reference of the Part 300 of title 47 of the Code of (PRA). Notwithstanding any other Manual of Regulations and Procedures for Federal Regulations provides provision of law, no person is required Federal Radio Frequency Management. information about the process by which to respond to, nor shall any person be * * * * *

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(b) The Federal agencies shall comply ADDRESSES: Highly Migratory Species area for the western Atlantic stock of with the requirements set forth in the Management Division, 1315 East-West BFT, as early in the 2011 BFT spawning January 2008 edition of the NTIA Highway, Silver Spring, MD 20910. season as possible. Bluefin tuna Manual, as revised through September Copies of the supporting documents— spawning season begins in early April 2010, which is incorporated by including the Environmental each year. This action is consistent with reference with approval of the Director, Assessment (EA), Regulatory Impact the advice of the ICCAT Standing Office of the Federal Register in Review (RIR), Final Regulatory Committee for Research and Statistics accordance with 5 U.S.C. 552(a) and Flexibility Analysis (FRFA), small entity (SCRS) that ICCAT may wish to protect 1 CFR part 51. compliance guide, and the 2006 the strong 2003 year class until it * * * * * Consolidated Atlantic Highly Migratory reaches maturity and can contribute to Species (HMS) Fishery Management spawning. The purpose is also to allow Dated: March 30, 2011. Plan (FMP)—are available from the directed fishing for other species to Lawrence E. Strickling, HMS Web site at http:// continue within allocated BFT subquota Assistant Secretary for Communications and www.nmfs.noaa.gov/sfa/hms/. limits. This measure is consistent with Information. FOR FURTHER INFORMATION CONTACT: the 2006 Consolidated HMS FMP and [FR Doc. 2011–7944 Filed 4–4–11; 8:45 am] Dianne Stephan at 978–281–9260 or ICCAT Recommendation 10–03 BILLING CODE 3510–60–P Randy Blankinship at 727–824–5399. (supplemental recommendation by ICCAT concerning the western BFT SUPPLEMENTARY INFORMATION: Atlantic rebuilding program). DEPARTMENT OF COMMERCE tunas are managed under the dual Since 2007, NMFS has conducted authority of the Magnuson-Stevens research on weak hooks used on PLL National Oceanic and Atmospheric Fishery Conservation and Management vessels operating in the GOM to Administration Act (Magnuson-Stevens Act) and the determine if their use can reduce the Atlantic Tunas Conventions Act incidental catch of large BFT during 50 CFR Part 635 (ATCA), which authorizes the Secretary directed PLL fishing for other species. of Commerce (Secretary) to promulgate [Docket No. 101029546–1208–02] Research data show that the use of a regulations as may be necessary and weak hook can significantly reduce the RIN 0648–BA39 appropriate to implement amount of BFT caught incidentally by recommendations of the International PLL vessels in the GOM. Weak hooks Atlantic Highly Migratory Species; Commission for the Conservation of can allow incidentally hooked BFT to Bluefin Tuna Bycatch Reduction in the Atlantic Tunas (ICCAT). The authority escape capture because the hooks are Gulf of Mexico Pelagic Longline to issue regulations under the more likely to straighten when a large Fishery Magnuson-Stevens Act and ATCA has fish is hooked, thus releasing the fish. been delegated from the Secretary to the Due in part to this research, this AGENCY: National Marine Fisheries Assistant Administrator for Fisheries, action finalizes the requirement to use Service (NMFS), National Oceanic and NOAA (AA). On May 28, 1999, NMFS weak hooks in the Atlantic HMS PLL Atmospheric Administration (NOAA), published in the Federal Register (64 fishery in the GOM. This action will be Commerce. FR 29090) final regulations, effective effective on May 5, 2011 to ensure ACTION: Final rule. July 1, 1999, implementing the Fishery implementation happens as early in the Management Plan for Atlantic Tunas, 2011 BFT spawning season as possible. SUMMARY: Under this final rule, NMFS Swordfish, and Sharks (1999 FMP). On Implementation of weak hooks in the ‘‘ ’’ requires the use of weak hooks in the October 2, 2006, NMFS published in the GOM PLL fishery during spring 2011 is Gulf of Mexico (GOM) pelagic longline Federal Register (71 FR 58058) final important because the strong 2003 year (PLL) fishery. A weak hook is a circle regulations, effective November 1, 2006, class is beginning to enter adulthood, hook that meets NMFS’ current size and implementing the 2006 Consolidated and it is likely that some of them will offset restrictions for the GOM PLL Atlantic Highly Migratory Species begin to spawn in the GOM this spring. fishery, but is constructed of round wire (HMS) Fishery Management Plan (FMP), Also, reducing the incidental BFT catch stock that is thinner-gauge than the which details the management measures in the GOM may enable the PLL fishery circle hooks currently used and is no for Atlantic HMS fisheries, including to continue to participate in directed larger than 3.65 mm in diameter. Weak the PLL fishery. The implementing fisheries (e.g., yellowfin tuna (YFT) and hooks can allow incidentally hooked regulations for Atlantic HMS are at 50 swordfish) year-round with less risk of bluefin tuna (BFT) to escape capture CFR part 635. fishery interruption due to insufficient because the hooks are more likely to BFT subquota availability in the Background straighten when a large fish is hooked. Longline Category. Requiring weak hooks in the GOM will On January 13, 2011, NMFS NMFS considered three alternatives reduce bycatch of BFT; allow the long- published a proposed rule (76 FR 2313) regarding the GOM PLL fishery. term beneficial socio-economic benefits to require the use of ‘‘weak hooks’’ by Alternative one would maintain the of normal operation of directed fisheries PLL vessels fishing in the GOM. A weak status quo, thus continuing existing in the GOM with minimal short-term hook is a circle hook that meets NMFS’ regulations in the GOM PLL fishery. negative socio-economic impacts; and current size and offset restrictions but is Alternative two would require all PLL have both short- and long-term constructed of round wire stock that is vessels fishing in the GOM to use weak beneficial impacts on the stock status of thinner-gauge and is no larger than 3.65 hooks. Alternative three would Atlantic BFT, an overfished species. mm in diameter than the circle hooks implement additional time/area closures This action affects commercial currently used in the PLL fishery. This in the GOM to protect spawning BFT. fishermen using PLL gear to fish for final rule finalizes the provisions The proposed rule contained details Atlantic Highly Migratory Species proposed in the January 13, 2011, rule. regarding the alternatives considered (HMS) in the GOM. The purpose of this action is to reduce and a brief summary of the recent DATES: This final action will become PLL catch of Atlantic BFT in the GOM, management history. Those details are effective on May 5, 2011. which is the only known BFT spawning not repeated here.

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Response to Comments fish stay on the hook until being Requiring weak hooks year-round During the proposed rule stage, NMFS retrieved upon haul-back of the gear. reduces such enforcement concerns received more than 57,000 written Due to the fact that BFT have the because no other type of circle hook comments from non-governmental highest level of energy available at the would be allowed on vessels fishing organizations, fishermen, dealers, and moment when the fish becomes hooked, with PLL gear in the GOM. There would other interested parties on the proposed NMFS believes that escapement occurs also be some negative economic impacts rule. Mass public comment campaigns soon after the fish is hooked. NMFS to fishermen if standard hooks are intends to conduct additional research allowed to be used outside of BFT contributed to the high number of with weak hooks using hook timers to spawning season due to higher costs comments received. NMFS also heard determine the length of time that fish and lost fishing time due to re-rigging of numerous comments from constituents remain on the hook. This information fishing gear. who attended the three public hearings will aid in further understanding more Comment 4: Implementing weak and an operator-assisted Atlantic HMS precisely the effects of weak hook use hooks in the GOM PLL fishery will have Advisory Panel conference call, which on BFT post-release mortality. negative economic impacts, including was open to the public. A summary of Comment 3: NMFS should implement the potential for significant loss of catch the comments received on the proposed weak hooks in the GOM PLL fishery and revenue by some vessels. This loss rule during the public comment period seasonally when BFT are present. in revenue may make it more difficult is provided below with NMFS’ Seasonal application of the weak hook for some vessels to maintain the hire of response. All written comments requirement would allow fishermen to captains and crew members who may be submitted during the comment period use currently required standard circle able to find more lucrative employment can be found at http:// hooks when BFT are not present in the elsewhere. Negative economic impacts www.regulations.gov/ by searching for GOM to mitigate potential economic also include the initial cost of outfitting RIN 0648–BA39. impacts due to reductions in YFT and GOM PLL vessels with weak hooks and Weak Hook Comments swordfish catch that might occur with an increased replacement rate of weak year-round use of weak hooks. hooks due to the ease with which the Comment 1: NMFS should implement Response: NMFS disagrees that the hooks bend. NMFS should provide weak hooks in the GOM PLL fishery weak hook requirements should be reimbursement to fishermen for the cost year-round prior to the 2011 western implemented seasonally. BFT are also of initially outfitting their vessels with Atlantic BFT spawning season. present in the GOM outside of the weak hooks. Response: NMFS agrees with the spawning season, although in lower Response: As described in the EA, intent of this comment for reasons numbers, and use of weak hooks year- NMFS anticipates negative economic described in the preferred alternative in round will ensure that protection is impacts to occur in the short-term for the proposed and final rules and EA, provided for these BFT. PLL vessels fishing in the GOM. These which include: Protecting the 2003 BFT Research data showed a higher catch negative economic impacts include a year class as recommended by the rate of YFT with the experimental hook potential reduction of vessel gross ICCAT SCRS; reducing the impact of the in the late summer months of July, revenue of approximately 14.8 percent, GOM PLL fleet on western BFT; August, and September when compared a minor increase in the cost of weak reducing BFT catches in the GOM PLL to the spring and early summer months hooks compared to the currently fishery; maintaining, or possibly of March, April, May, and June. Because required standard circle hook, and a improving with experience using the the experiment focused on collecting slight increase in gear cost due to an weak hook, catches of YFT; reducing the data during the BFT spawning season, increased replacement rate of weak likelihood of PLL fishery interruption or the majority of data was collected hooks compared to the standard circle indirect impacts to directed BFT during March–June. Although it is hook. fisheries due to the Longline Category unknown why YFT catch rates were As described in the response to exceeding its BFT subquota; and higher in the late summer months after comment 3 above, research data showed improving fishing efficiency and catch BFT spawning season, if more data had a higher catch rate of YFT with the by reducing the amount of fishing time been collected after the BFT spawning experimental hook in the late summer lost to BFT and large shark period, NMFS believes it likely that the months of July, August, and September entanglements. YFT reduction rate would have been when compared to the spring and early Comment 2: NMFS should not less than what was observed (i.e., the summer months of March, April, May, implement weak hooks because they are amount of YFT caught with the weak and June. Because the experiment unproven in effectively reducing BFT hook may not have decreased as much focused on collecting data during the mortality. Although BFT catch appears as the overall study showed). Thus the BFT spawning season, the majority of to be reduced, there is no unequivocal potential economic impact due to data was collected during March–June. evidence that BFT released from a bent decreases in YFT catch may actually be If more data had been collected after the hook survive. less than described in the proposed rule. BFT spawning period, NMFS believes it Response: NMFS disagrees that weak Seasonal application of the weak hook likely that the YFT catch reduction rate hooks should not be implemented in the requirement would increase the would have been less than what was GOM PLL fishery. Research has shown difficulty of enforcing the rule’s observed and the potential economic that the use of weak hooks can reduce requirement for vessels in the GOM impact due to decreases in YFT catch the incidental catch of BFT by 56.5 with PLL gear on board to possess, use, could be less than described in the percent. Although limited information and deploy only weak hooks. This is proposed rule. NMFS gear researchers exists about the effects of weak hooks on because vessels on trips spanning the have found that fishermen participating BFT post-release mortality, post-release beginning or end of the period of time in research tend to work through a mortality is expected to be reduced during which weak hooks are required learning curve with new technology and because BFT likely straighten the weak might not have removed all of the hooks generally improve their performance hooks relatively quickly after being with wire greater than 3.65 mm in with a particular gear over time. A caught and likely do not incur as high diameter from their vessels, thus voucher program to assist fishermen in a level of metabolic stress as when the possessing both hooks on board. the GOM with the purchase of an initial

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supply of weak hooks is being reaching Vietnamese fishermen, to help hooks compared to 16/0 circle hooks on sponsored by the National Fish and fishermen understand the benefits and both squid and sardine baits. The Wildlife Foundation (please see ‘‘Weak costs of weak hook use and fishery evaluation did not include BFT. While Hook Voucher Program’’ below for more management priorities for the future of these results do not directly answer the details). Compared to the no action the fishery. This effort should include public comment about how 18/0 circle alternative, the preferred alternative fishing techniques learned through the hooks constructed of thinner wire might reduces the incidental BFT catch in the weak hook research to reduce BFT catch perform for reducing BFT catch, they GOM and may enable the PLL fishery to and maintain or improve directed catch. provide some insight to show that continue to participate in directed Response: NMFS agrees and intends currently required standard 18/0 hooks fisheries (e.g., YFT and swordfish) year- to conduct outreach and education may reduce swordfish retention. round with less risk of fishery workshops around the GOM to help NMFS disagrees that a sunset interruption due to insufficient BFT fishermen learn the benefits of and provision should be implemented for subquota availability in the Longline techniques for fishing with weak hooks. this final action because such a Category. Comment 8: NMFS should continue provision would guarantee that NMFS Comment 5: Gulf of Mexico PLL to conduct and expand research on must take action to continue the weak fishermen need a reasonable amount of weak hook technology in the GOM PLL hook requirement. Instead, NMFS may time to comply with the new weak hook fishery. NMFS should conduct conduct subsequent rulemaking, if requirement prior to active enforcement additional research on the length of time necessary, in the future to address the of the new requirement, and NMFS that BFT remain hooked on weak hooks need for modified or additional should ensure that there is a sufficient in order to determine if the mortality management measures. supply of weak hooks available for the rate of BFT is actually reduced. There is Comment 9: The weak hook research GOM PLL fleet in advance of the currently little data to indicate if BFT indicates that the number of swordfish effective date. that escape from weak hooks survive. retained by GOM PLL vessels may Response: NMFS agrees and intends Additional research should investigate decrease. If this occurs, fishermen may to provide 30 days after publication of reducing white marlin and roundscale increase their fishing effort to make up the final rule for fishermen to prepare spearfish bycatch, determining the effect for lost revenue, which may result in for and comply with the weak hook of weak hooks on sea turtle interactions, increased bycatch of undersized requirement. NMFS has begun to further reducing BFT bycatch, swordfish and other bycatch species. investigate manufacturer and distributor improving directed species catch, and Response: NMFS agrees that the inventories of weak hooks and believes determining the efficacy of 18/0 hooks possibility exists for PLL fishing effort that enough weak hooks are currently made with thinner wire for further BFT in the GOM to increase if fishermen available to initially outfit PLL vessels bycatch reduction and improved attempt to make up for lost revenue due in the GOM with weak hooks. NMFS swordfish retention. NMFS should to reductions in targeted catch. NMFS cannot delay implementation for longer create a sunset provision of 3 years for will continue to monitor fishing effort than 30 days because, as described the weak hook requirement to allow and catch in the GOM PLL fleet through above, it is important to have these sufficient time for additional research logbooks, dealer reports, and the pelagic regulations in place as early in the 2011 and ensure a thorough review by the observer program in order to determine BFT spawning season as possible to agency to determine if the requirement potential effects on target and non-target provide additional protections for the should be continued, revised, or species. Bycatch mitigation measures strong 2003 year class as it enters allowed to expire. such as closed areas (DeSoto Canyon), adulthood and begins to contribute to Response: NMFS intends to continue use of circle hooks, possession and use spawning in the GOM this spring. research on the effects of the use of of protected species safe handling and Comment 6: NMFS should seek weak hooks when compared to the release gears, and limits on sea turtle methods to respond to the ICCAT SCRS currently required standard circle hook. interactions required in the 2004 call for special efforts to reduce Among other things, this research will Biological Opinion (BiOp) will remain mortality on the 2003 BFT year class in help to better understand the effect of in effect. However, fishermen may not other domestic and international weak hooks on white marlin and experience reductions in targeted catch fisheries that target or interact with BFT. roundscale spearfish catches and sea or reduced revenue. Some fishermen Response: The 2010 SCRS report turtle interactions. NMFS intends to that participated in the weak hook noted that ICCAT ‘‘may wish to protect conduct research with weak hooks using research experienced increased targeted the 2003 year class until it reaches hook timers to determine the length of catch and are voluntarily using weak maturity and can contribute to time that fish remain on the hook. This hooks year-round. As other fishermen spawning,’’ and that maintaining catch information will aid in understanding learn the fishing techniques that work at 1,800 mt may offer some protection. the effects of weak hook use on BFT well with the weak hooks, those ICCAT Recommendation 10–03 reduced post-release mortality. NMFS will fishermen may not experience the total allowable catch (TAC) to 1,750 continue to collect information on BFT, reductions in targeted catch or revenue. mt for 2011 and 2012, which may offer white marlin, roundscale spearfish, sea As described in the response to further protection for the 2003 year turtles and other species caught on PLL Comment 3 above, research data showed class. Implementation of weak hooks in gear through the NMFS pelagic observer a higher catch rate of YFT with the the GOM PLL fishery is expected to program that will help to better experimental hook in the late summer reduce the catch of BFT and reduce understand the effects of weak hook months of July, August, and September mortality of spawning-age BFT, implementation. when compared to the spring and early including the 2003 year class. This During experimental PLL fishery data summer months of March, April, May, action will promote survival of BFT in collection conducted in the Northeast and June. Because the experiment the GOM, and thus will improve Distant gear restricted area and GOM in focused on collecting data during the western BFT stock health. 2004, NMFS collected data with the BFT spawning season, the majority of Comment 7: NMFS should conduct currently required standard circle hooks data was collected during March-June. If education and outreach programs for the that showed reduced catches of more data had been collected after the entire GOM PLL fleet, including swordfish and YFT with 18/0 circle BFT spawning period, it is likely that

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the YFT reduction rate would have been very small in relation. In addition, during the BFT spawning season, the less than what was observed, thus the NMFS already has comprehensive majority of data was collected during potential economic impact due to regulations in place to conserve these March–June. If more data had been decreases in YFT catch may be less than species in its domestic fisheries. Under collected after the BFT spawning described in the proposed rule. If this current regulations, PLL vessels are not period, it is likely that the YFT occurs, the incentive to increase fishing allowed to retain white marlin/ reduction rate would have been less effort may not be realized. roundscale spearfish, and any that are than what was observed. This additional Comment 10: Because the weak hooks captured must be released alive or analysis does not, however, indicate are nearly identical to the currently discarded if dead. Additionally, PLL that an overall increase in YFT catch required standard circle hook, vessels are currently required to possess would occur. NMFS will continue to enforcement of the weak hook and use protected species safe handling collect information on YFT and other requirement will be extremely difficult. and release gears and techniques that species caught on PLL gear through the Further, the potential reduction in the aid in releasing hooked animals, NMFS pelagic observer program that catch of target species, such as including white marlin, and maximize will help to better understand the effects swordfish retained for sale, indicated by post-release survival without removing of weak hook implementation. the weak hook research, could make it the fish from the water. Most white Yellowfin tuna are managed less likely that fishermen will comply marlin/roundscale spearfish that are internationally by ICCAT, which has with the weak hook requirement. hooked are released alive. adopted a limit on effective fishing Response: NMFS intends to fully NMFS would continue research with effort, but not issued a TAC or enforce the weak hook requirement. A weak hook technology and closely individual country quotas. According to gauge has been developed for use by monitor white marlin and roundscale the latest ICCAT SCRS YFT stock NMFS enforcement agents and officers, spearfish catch through observer assessment (2008), the YFT population U.S. Coast Guard personnel, and state coverage in the fishery. Should the is not considered to be overfished and joint enforcement partners to quickly increased catches of white marlin and overfishing is not occurring. If the catch and definitively measure the diameter of roundscale spearfish continue, NMFS of YFT in the GOM increases as a result the hook wire. This gauge was used by would investigate potential mitigation of weak hook use, negative impacts on observers during the weak hook study measures that might be implemented if the YFT population are expected to be and is proven to be a quick and effective necessary to reduce the catches and/or minor when compared to the total tool for distinguishing the difference reduce the bycatch mortality associated western Atlantic longline catch. The between weak hooks and hooks made of with the catches. The current research United States GOM longline catch is 7.7 larger diameter wire. does not show a statistically significant percent of the total western Atlantic Comment 11: Pelagic longline gear is increase in bycatch; therefore, it is not longline catch. responsible for almost 70 percent of the clear that mitigation measures would be Comment 13: NMFS should mortality of white marlin and the weak appropriate at this time. Neither does reexamine whether it is appropriate to hook research indicates that white the research indicate which measures rely on the Final Environmental Impact marlin/roundscale spearfish catches would be effective to address any Statement (FEIS) for the 2006 may increase by 52.7 percent with weak potential statistically significant white Consolidated HMS FMP, or the 2004 hooks. This increase in catch is marlin and roundscale spearfish BiOp for the PLL fishery when concerning given the poor health of increase in catch. If additional research supporting the FONSI because the white marlin and the fact that white shows a statistically significant increase implementation of the weak hook will marlin has been the subject of two status in such bycatch, possible measures cause a change in fishing effort because reviews under the Endangered Species could include adopting a seasonal of improved catchability of white marlin Act (ESA). application of the weak hook, and other species. The effects on Response: The NMFS weak hook modification or removal of the weak endangered and threatened marine research results showed that the hook requirement or other measures as species are not fully understood through increase in catch of white marlin and necessary and appropriate. NMFS the weak hook research, which is cause roundscale spearfish was not would closely monitor fleet activities for concern given the potential increase statistically significant, although the and catch statistics, and consider in the number of hooks that might be set difference was close to being making management measures in the PLL fishery due to the potential statistically significant. NMFS does not adjustments, including use of inseason decrease of YFT and swordfish retained believe that this increase, if it actually management authority, should the data for sale. Also, an ESA consultation may occurs, is likely to have population or warrant. be required if weak hook use affects ecosystem effects for those species Comment 12: While the weak hook loggerhead sea turtles and those because the predicted increase of 144 study showed a reduction in YFT catch loggerhead sea turtles are uplisted in the white marlin (or 1.05 mt in 2009 at 48 of 7 percent, it also showed an increase final rule to list the Northwest Atlantic lb per fish) dead discards represents less in YFT catch in late summer and fall loggerhead sea turtle (final rule due than 0.8 percent of the total amount of months. If YFT catches actually increase March 16, 2011). The analysis in the international white marlin catch (which overall as a result of weak hook use, the 2006 Consolidated HMS FMP should be includes recreational landings and increased fishing mortality may be updated due to significant events such commercial dead discards) in the North detrimental to the YFT population. as Hurricane Katrina and the DWH/BP Atlantic (406 mt in 2009). Response: As described in the oil spill, thus the baseline FEIS for the Due to misidentification of roundscale response to Comment 3 above, research 2006 Consolidated HMS FMP requires spearfish as white marlin, the total data showed a higher catch rate of YFT new analyses of the effects of the PLL international white marlin catch also with the experimental hook in the late fishery on listed species. includes some roundscale spearfish and, summer months of July, August, and Response: NMFS disagrees that a as such, indicates that any potential September when compared to the spring potential increase in the catch of white increase in roundscale spearfish that and early summer months of March, marlin is an indication that fishing might occur in the GOM PLL fishery as April, May, and June. Because the effort will increase with implementation a result of this final action should be experiment focused on collecting data of weak hooks. White marlin and other

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billfishes are not allowed to be retained the GOM and any impacts on BFT, Additionally, NMFS is not aware of on PLL vessels. NMFS does not believe target catch, marine mammals, sea other peer reviewed and published that an increase in bycatch that must be turtles, and other incidentally caught time/area closure analyses that consider discarded will result in an increase in species. fishing effort redistribution for the GOM fishing effort. PLL fishery since the NMFS 2006 Gulf of Mexico Time/Area Closure NMFS believes that the FEIS for the closure analyses. Therefore, NMFS does Comment 2006 Consolidated HMS FMP and the not prefer alternative 3 for the same 2004 BiOp for the PLL fishery remain Comment 15: NMFS should prohibit reasons as described above and in the applicable and support this final action. PLL gear in the GOM (Alternative 3) 2006 Consolidated HMS FMP. Despite recent significant events that because of indiscriminate bycatch The 2006 Consolidated HMS FMP have occurred in the GOM, the 2006 (particularly the bycatch of BFT, established criteria for considering the Consolidated HMS FMP closure billfishes, leatherback sea turtles, and implementation of new time/area analysis still reflects impacts that are loggerhead sea turtles) or should closures or modification to existing likely to occur with the time/area implement a seasonal closure for time/area closures. It is not feasible to closure alternatives, particularly when longline use during BFT spawning. conduct extensive, new analysis per considering redistribution of fishing Response: Considering redistribution these criteria and to meet the objectives effort. When redistribution of effort was of fishing effort is important because of this action (i.e., to rapidly implement considered, all time/area closures in the HMS and protected species are not the final action to increase the survival 2006 analysis resulted in an increase in uniformly distributed throughout the of spawning BFT in 2011 in the GOM, bycatch for some species, including ocean and tend to occur in higher particularly the 2003 year class). NMFS BFT. This final action is not expected to concentrations in certain areas. believes that the 2006 analysis remains change fishing effort or behavior beyond Therefore, a closure in one area might valid for the purposes of this that already analyzed in the 2001 HMS reduce the bycatch of one or two rulemaking. However, NMFS intends to and 2004 PLL Biological Opinions species, but may increase bycatch of review time/area closure analyses, in (BiOps) regarding interactions with others. NMFS considered a number of light of the events of the past few years endangered species. This action is not redistribution of effort scenarios (i.e., such as hurricanes and the DWH/BP oil expected to significantly alter current redistribution of effort into all spill, in the near future. At that time, fishing practices or bycatch mortality remaining open areas, redistribution of NMFS will consider other rates from the level analyzed in the effort into the GOM only, and methodologies that have been proposed Consolidated HMS FMP, and therefore redistribution of effort in the GOM). In to consider effects of effort should not have adverse impacts on all cases, NMFS found the closures in redistribution, such as Powers and protected species, or have any further the GOM could result in an increase in Abeare (2009) or others, for time/area impacts on endangered species, listed bycatch for some of the species being analysis as appropriate. marine mammals, or critical habitat considered. No one closure in these General Comments beyond those considered in the 2001 analyses would have resulted in a and 2004 BiOps. decrease in discards or bycatch of all the Comment 16: NMFS should promote Comment 14: Comments were species considered when the more selective alternative gears to PLL received in support of and opposition to redistribution of fishing effort was for YFT and swordfish fishing. implementing weak hooks in Atlantic considered. When the redistribution of Response: This comment is not within PLL fisheries outside the GOM. effort was considered, the purpose of a the range of alternatives considered in Response: Research was conducted by GOM closure (reducing bycatch and this rulemaking because the rulemaking the NMFS Southeast Fisheries Science discards of spawning BFT) may not be concerns the means, methods, times, Center to evaluate the efficacy of 16/0 fully realized and may have effects on and places that PLL gear is used in the ‘‘weak’’ circle hooks in reducing the BFT outside the closed area. For GOM. The rulemaking does not consider bycatch of BFT in the GOM YFT fishery. instance, after examining a potential alternatives related to the use of other The weak hook research has shown that closure in the GOM from April through fishing gears. the catch of adult-sized BFT in the GOM June in order to protect spawning BFT, Comment 17: NMFS should PLL fleet can be reduced by 56.5 percent the analysis predicted an increase in the implement bycatch caps for species of with the use of weak hooks. The number of BFT bycatch and discards concern in the GOM PLL fishery and difference in BFT catch between the elsewhere once displaced fishing effort 100 percent observer coverage to standard 16/00 circle hooks and the was considered. In the 2006 support a bycatch cap program. When experimental weak hooks was Consolidated HMS FMP, NMFS did not the bycatch caps are reached, the GOM statistically significant. The size of BFT prefer any new time/area closures PLL fishery should be closed. in the GOM, the only known spawning (except the Madison-Swanson and Response: This comment is not within area for the western stock, is larger than Steamboat Lumps Marine Reserves for the range of alternatives considered in the size distribution of BFT in the other purposes), and did not modify any this rulemaking because the rulemaking Atlantic outside of the GOM. The existing closures at that time because no concerns the means, methods, times, benefits of weak hook use with PLL gear single closure or combination of and places that pelagic longline gear is outside the GOM may not be the same closures would reduce the bycatch of all used in the GOM. NMFS currently as in the GOM PLL fishery given the species considered, assuming there is monitors bycatch in the GOM PLL differences in the catch composition some redistribution of effort. NMFS fishery through the use of observers and and the way fishermen fish PLL gear in believes the closure analysis conducted vessel logbooks. Bycatch in the GOM strong currents such as the Gulf Stream. in 2006 remains the best available PLL fishery is minimized through While research on the use of weak science and reflects the substantial regulations implemented under the hooks along the Atlantic coast has impacts that would likely occur under Magnuson-Stevens Act and the ESA that begun in order to look at reducing the the time/area closures analyzed because require the use of circle hooks, require bycatch of marine mammals, further the underlying principle of fishing effort the use of protected species safe research is needed to determine the redistribution that was used in the handling and release gears, prohibit the applicability of weak hooks outside of analysis is still likely to occur. use of live bait, prohibit the possession

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and use of PLL gear in existing closed Changes From the Proposed Rule Memorandum on Regulatory Flexibility, areas, and other requirements. A minor change to the definition of Small Business, and Job Creation Comment 18: The effects of the DWH/ round wire stock at 50 CFR 635.2 has (January 18, 2011). Consistent with the BP oil spill have not been fully been made to provide further objectives of this rule and legal determined and NMFS should err on the clarification. A minor change to the obligations, a voucher program to assist side of caution when implementing paragraph at § 635.71(a)(54) that deals fishermen in the GOM with the fishery management measures for fish with prohibitions has been made to purchase of an initial supply of weak stocks that may have been affected by clarify the cross referenced paragraph. hooks is being sponsored by the the oil spill. National Fish and Wildlife Foundation Classification (please see ‘‘Weak Hook Voucher Response: NOAA continues to Program’’ below for more details). NMFS conduct research on the impacts of the The NMFS AA has determined that this final action is consistent with the has also considered seasonal DWH/BP oil spill on natural resources. implementation of weak hooks in the The impacts of the oil spill and effects Magnuson-Stevens Act, 2006 Consolidated Atlantic HMS FMP and its GOM PLL fishery; however, this on Atlantic HMS are difficult to approach is not preferred because BFT determine at this time. amendments, ATCA, and other applicable law. are also present in the GOM outside of With implementation of this final This final rule has been determined to the spawning season in lower numbers action, NMFS is precautionary in its be not significant for purposes of and seasonal application of the weak approach because it is acting Executive Order 12866. hook requirement would increase the consistently with SCRS advice to In compliance with section 604 of the difficulty of enforcing the weak hook protect the 2003 BFT year class as it Regulatory Flexibility Act (RFA), NMFS requirement. NMFS also considered a matures and begins to contribute to has prepared a Final Regulatory phased-in approach to implementation spawning. In addition, implementation Flexibility Analysis (FRFA) for this final of the weak hook requirement; however, of weak hooks in the GOM PLL fishery this approach is not preferred because it rule, which analyzed the impacts of is expected to reduce the catch of BFT would not rapidly provide additional requiring the use of weak hooks in the in that fishery by 56.5 percent, which protection for spawning BFT (especially GOM PLL fishery. The FRFA analyzes will reduce mortality of spawning BFT the strong 2003 year class) as early as the anticipated economic impacts of the (both the 2003 and other year classes) possible in the spring 2011 spawning final action and any significant on their spawning grounds. This will season. economic impacts on small entities. A promote the increase of spawning Section 604(a)(3) requires Federal summary of the FRFA is below. The full biomass, the likelihood of successful agencies to provide an estimate of the FRFA and analysis of social and spawning, and further rebuilding of the number of small entities to which the economic impacts are available from western BFT stock. rule would apply. NMFS considers all NMFS (see ADDRESSES). Comment 19: Allowing the PLL fleet HMS permit holders to be small entities In compliance with section 604(a)(1) because they either had average annual to continue to fish will cause BFT to of the Regulatory Flexibility Act, the become extinct. receipts less than $4.0 million for fish- purpose of this final rulemaking is, harvesting, average annual receipts less Response: On May 24, 2010, NMFS consistent with the Magnuson-Stevens than $6.5 million for charter/party received a petition from the Center for Act and the 2006 Consolidated HMS boats, 100 or fewer employees for Biological Diversity (CBD) to list BFT as FMP and its amendments, to further wholesale dealers, or 500 or fewer threatened or endangered under the BFT stock recovery by increasing live employees for seafood processors. These ESA and designate critical habitat releases of incidentally caught BFT by are the Small Business Administration concurrently with its listing. On providing a new gear technology for PLL (SBA) size standards for defining a September 21, 2010, NMFS announced vessels to continue routine fishing small versus large business entity in this a 90-day finding (75 FR 57431) that the operations in the GOM. industry. petition presents substantial scientific Section 604(a)(2) of the Regulatory The GOM PLL fishery is comprised of information indicating the petitioned Flexibility Act requires NMFS to fishermen who hold an Atlantic Tunas action may be warranted. NMFS is summarize significant issues raised by Longline permit, a Swordfish Directed currently conducting a status review of the public in response to the Initial or Incidental permit, and a Shark BFT to determine if the petitioned Regulatory Flexibility Analysis (IRFA), a Directed or Incidental permit and the action is warranted. The status review summary of NMFS’ assessment of such related industries including processors, process includes assessment of the risk issues, and a statement of any changes bait houses, and equipment suppliers, of extinction, considering effects of made as a result of the comments. The all of which NMFS considers to be small directed and incidental fisheries as well IRFA was included as part of the draft entities according to the size standards as other impacts. Per the ESA required EA and was summarized in the set by the SBA. The final rule would timeline, NMFS is scheduled to publish proposed rule. NMFS did not receive apply to PLL vessels that fish in the that determination by May 24, 2011 (i.e., any comments specific to the IRFA; GOM. As of October 2010, there were within 12 months of receiving the however, NMFS did receive comments 248 Atlantic tuna longline limited petition). If NMFS determines that related to the overall economic impacts access permit holders. Of these, 136 listing is not warranted, NMFS would of the proposed rule. Those comments were registered in states along the coast publish a Federal Register notice and NMFS’ responses to them are of the GOM (including all Florida announcing the end of the consideration mentioned above in the preamble for vessels). However, based on logbook process. If NMFS determines that listing this rule. Particularly relevant economic records from 2006 to 2009, on average, is warranted, NMFS will publish a comments are 1, 3, 4, 5, 7, 9, and 15. only 51 PLL vessels were actively proposed rule and solicit public When developing this action, NMFS operating in the GOM annually, with a comments before developing and considered different ways to reduce the high of 55 vessels in 2007 and a low of publishing a final determination (which regulatory burden on and provide 47 in 2006 and 2009. During the would be required within one year of a flexibility to the regulated community, summer of 2010, preliminary vessel proposed rule). consistent with the recent Presidential monitoring system information

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indicated that the number of active PLL additional reporting requirements any additional economic impacts to vessels in the GOM decreased by more (category two above). Fishing vessels small entities in the short-term. NMFS than 79 percent due to the Deepwater with PLL gear onboard will be required, does not anticipate a significant change Horizon (DWH)/BP oil spill and at all times, in all areas of the GOM in landings, ex-vessel prices, or associated fishery closures. open to HMS PLL fishing, to possess operating costs relative to the ‘‘status This final rule does not contain any onboard and use only circle hooks quo’’ for small entities under this new reporting or recordkeeping meeting current size and offset alternative. However, adverse economic requirements, but would require a new restrictions as well as being constructed impacts in the medium and long-term compliance requirement (5 U.S.C. of only round wire stock that is no could result if no action is taken to 604(a)(4)). Fishing vessels with PLL gear larger than 3.65 mm in diameter. NMFS address the incidental catch of BFT in onboard will be required, at all times, in does not know of any performance or the GOM PLL fishery. Adverse all areas of the GOM open to HMS PLL design standards that would satisfy the economic impacts could occur if the fishing, to possess onboard and/or use aforementioned objectives of this Longline Category subquota for BFT is only circle hooks meeting current size rulemaking while, concurrently, exceeded and a partial or total closure and offset restrictions, as well as being complying with the Magnuson-Stevens of the fishery is implemented or other constructed of only round wire stock Act. management measures are taken in that is no larger than 3.65 mm in NMFS considered and analyzed three directed BFT fisheries to allow for dead diameter. This final rule would not main alternatives for this rule. The first discards of BFT to be accounted for conflict, duplicate, or overlap with other alternative was the status quo, no action within the U.S. quota. relevant Federal rules (5 U.S.C. alternative. This alternative would The preferred alternative, Alternative 604(b)(5)). Fishermen, dealers, and maintain existing hook and bait 2, would require vessels with PLL gear managers in these fisheries must comply requirements in the Atlantic PLL fishery onboard, at all times, in all areas of the with a number of international in the GOM. The second alternative GOM open to PLL fishing, to possess agreements, domestic laws, and other would require all PLL vessels fishing in onboard and use only circle hooks FMPs. These include, but are not the GOM to use weak hooks and is the meeting current size and offset limited to, the Magnuson-Stevens Act, preferred alternative. The third restrictions as well as being constructed the ATCA, the High Seas Fishing alternative considered establishing of only round wire stock that is no Compliance Act, the Marine Mammal additional time/area closures in the larger than 3.65 mm in diameter. This Protection Act, the Endangered Species GOM. Under this alternative, an area of alternative would result in some minor Act, the National Environmental Policy the GOM would be closed to PLL fishing increases in equipment costs for the Act, the Paperwork Reduction Act, and and could extend over the entire GOM new hooks, would likely impact vessel the Coastal Zone Management Act. or a subarea. Temporal extents of a operations, and would also potentially NMFS does not believe that the new closure could be timed to the spawning impact catch rates and thus potentially regulations would duplicate, overlap, or season for BFT in the GOM, April to reduce vessel revenues. conflict with any relevant regulations, mid-June, or for shorter or longer time Alternative 2 would result in Federal or otherwise. frames (i.e., year round). Areal extents moderate positive social and economic Under section 604(a)(5), agencies are of a closure could be restricted to benefits if this measure is able to reduce required to describe any alternatives to portions of the GOM where particularly the bycatch of BFT in the GOM the rule which accomplish the stated high concentrations of spawning BFT sufficiently to allow the PLL fishery to objectives and which minimize any have been observed while minimizing continue operating in the GOM. significant economic impacts. Economic inclusion of areas with high directed However, there would likely be some impacts are discussed below and in the YFT fishing operations. Adaptive increased economic costs associated Environmental Assessment for the management programs might also be with switching to the weak hook. action. Additionally, the Regulatory considered with the temporal/spatial This alternative would result in some Flexibility Act (5 U.S.C. 603(c)(1)–(4)) extent of the time/area changes based on minor increases in equipment costs lists four general categories of real-time information on distribution associated with acquiring the new weak significant alternatives that would assist and abundance of target and non-target hooks. Direct cost of purchasing weak an agency in the development of species as well as the socio-economic hooks is anticipated to increase significant alternatives. These categories needs of the fishery. In addition to these expenses by $.02 per hook. An informal of alternatives are: (1) Establishment of three alternatives, NMFS also telephone survey of hook suppliers differing compliance or reporting considered other options such as provides a price of approximately $0.34 requirements or timetables that take into prohibition on all retention of BFT in per hook for 16/0 commercial grade account the resources available to small the GOM (i.e., no incidental retention of circle hooks and approximately $0.36 entities; (2) clarification, consolidation, BFT allowed) and adjustment of target per hook for 16/0 circle hooks or simplification of compliance and catch retention limits (i.e., modify constructed of 3.65 mm diameter round reporting requirements under the rule current limits of one BFT per 2,000 lbs wire stock. Assuming that an average of for such small entities; (3) use of of target catch, two BFT per 6,000 lbs 1,600 hooks per vessel are needed performance rather than design and three BFT per 30,000 lbs). As these initially to equip vessels with enough standards; and, (4) exemptions from alternatives either do not reduce required hooks for one trip, the coverage of the rule for small entities. mortality of BFT but rather convert compliance cost, on a per vessel basis, In order to meet the objectives of this discards to landings (or vice versa), or would be approximately $576. rule, consistent with legal obligations, may have substantial negative social Hook replacement rates are NMFS cannot exempt small entities or and economic impacts and cannot be anticipated to increase with use of the change the reporting requirements only implemented in short time frames, these weak hook. Researchers during the for small entities. Thus, there are no alternatives were determined to not GOM PLL BFT mitigation research alternatives discussed that fall under the meet the objectives of the action and estimated that requiring the weak hook first and fourth categories described were not considered further. would result in an increase in the rate above. In addition, none of the Alternative 1, the status quo, no of hook replacement by 4.41 hooks per alternatives considered would result in action alternative would not result in 1,000 hooks over the current

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replacement rate due to straightening observed in the research experiment expected to shift effort to fishing areas and deformation of the hooks. The into potential fishery revenue impacts outside the GOM and there could be researchers anticipated that this rate that may result from requiring the use changes in the distribution of the fleet was an underestimate; however, they of weak hooks in the GOM. The with some fishermen possibly exiting estimated the cost of additional hook calculations are detailed in the EA for the fishery. Predicting fishermen’s replacement with the weak hook to be this final rule which is available on behavior is difficult, especially as some less than $3.00 per 1,000 hooks set. The request. Based on the research results, factors that may determine whether to standard 16/0 circle hooks currently in the estimated per trip reduction in stay in the fishery, relocate, or leave the use will continue to be used in the U.S. revenues that would potentially result fishery are beyond NMFS’ control (fuel Atlantic and inventories of unused from requiring the use of weak hooks in prices, infrastructure, hurricanes, etc.). standard 16/0 hooks could be sold to the GOM is approximately $2,265. While some fishermen will continue to vessels fishing in the Atlantic outside of Based on HMS logbook reports from fish in the remaining open areas of the the GOM. 2006 to 2009, the average number of Atlantic, Caribbean, and GOM, others Alternative 2 would also potentially PLL trips taken per vessel per year in may be forced to leave the fishery impact vessel catch rates, and thus the GOM is 9.7. Multiplying 9.7 trips entirely, such as selling their permits potentially reduce vessel revenues. per vessel by the estimated $2,265 per and going out of business, as a result of Based on the GOM PLL BFT mitigation trip reduction in catch revenues (when research results, catch rates for several including reductions for BFT, YFT, the closure. Changes in fishing patterns commercially important species were wahoo, and swordfish) results in an may result in fishermen having to travel found to be lower using the new weak estimated reduction of $21,974 in greater distances to reach more hooks versus the standard 16/0 circle commercial fishing revenues per vessel favorable grounds, which would likely hooks. The researchers found a per year in the GOM resulting from result in increased fuel, bait, ice, and statistically significant (at the 5 percent switching to weak hooks. Alternatively, crew costs. While there may be a level) reduction in the total catch of BFT if the analysis only considers the potential increase in travel, this is and wahoo when weak hooks were used statistically significant reductions in unlikely to raise significant safety compared to conventional circle hooks. catch at the 5 percent level (only concerns because the fleet is highly The total catch of BFT was reduced 56.5 including reductions for BFT and mobile. The potential shift in fishing percent when weak hooks were used in wahoo which equals $139 less per trip), grounds, should it occur, could result in the experiment. This reduction includes as used in the research study, the fishermen selecting new ports for both discards and BFT retained for sale. estimated reduction in annual catch offloading. This would likely have Based on observer reports of the number revenues per vessel in the GOM for negative social and economic of BFT discarded versus retained in the Alternative 2 would be $1,351 (9.7 trips consequences for traditional ports of GOM, the researchers estimate that the × $139). This lower estimate may also offloading, including processors, experimental results indicate that the represent the potential improvements in dealers, and supply houses, and positive use of weak hooks would result in catch rates that may occur over time as social and economic consequences for approximately a 14 percent reduction in fishermen adapt to the new weak hook any new selected ports of offloading. BFT retained for sale given the BFT technology. NMFS’ analysis of weak NMFS conducted a detailed, incidental retention limits. The total hook research data after the publication comprehensive socio-economic analysis catch of wahoo using the weak hook of the proposed rule found a seasonal for the time/area alternatives considered was reduced by 26.6 percent. difference in the catch of YFT. Because in the 2006 Consolidated HMS FMP and The research also observed reduction the experiment focused on collecting found that the economic impacts of each in the number of YFT and swordfish data during the BFT spawning season, of the closures considered may be retained for sale. While these results the majority of data was collected substantial, ranging in losses of up to were not statistically significant at the during March-June. If more data had several million dollars annually, 5 percent level, the reductions in YFT been collected after the BFT spawning depending upon the closure and and swordfish retained did have p- period, it is likely that the YFT displacement of a significant number of values ≤ 0.15. Weak hooks in the reduction rate would have been less fishing vessels. Since the data analysis experiment resulted in a 7 percent than what was observed, thus the conducted in the 2006 Consolidated reduction in YFT retained for sale and potential economic impact due to HMS FMP, several events have affected 41.2 percent reduction in swordfish decreases in YFT catch may be less than the GOM including Hurricane Katrina, retained for sale. No other commercially described above. NMFS does not foresee Hurricane Rita, and the DWH/BP oil targeted species observed during the that the national net benefits and costs research exhibited catch rate differences would change significantly in the long spill among other events. While social between weak hooks and conventional term as a result of implementation of the and economic impacts have likely circle hooks with p-values of ≤ 0.15. final action. In response to comment, occurred due to these events, NMFS Therefore, given that YFT is often the NMFS also considered a modified believes the closure analysis in 2006 target catch for PLL trip in the GOM and version of alternative 2 that would still reflects the substantial social and the heterogeneous nature of fishing apply the weak hook requirement economic impacts that would be likely vessel operations, this analysis seasonally. However, NMFS did not to occur under the time/area closures conservatively includes the observed prefer this approach because BFT are analyzed. Additionally, Alternative 3 reductions in YFT and swordfish. In also present in the GOM outside of the does not meet all of the objectives of addition, NMFS also ran the analysis spawning season in lower numbers and this final rule because it does not with just BFT and wahoo which seasonal application of the weak hook rapidly enhance BFT stock rebuilding exhibited statistically significant requirement would increase the by increasing BFT spawning potential differences in catch at the 5 percent difficulty of enforcing the weak hook and subsequent recruitment into the level to help illustrate the range of requirement. fishery (i.e., rapidly implement the possible outcomes. Under Alternative 3, which considers action to increase the survival of Using vessel logbook catch data, additional time/area closures in the spawning BFT by spring 2011 in the NMFS translated the reductions in catch GOM, some fishermen could be GOM).

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Small Entity Compliance Guide ■ 2. In § 635.2, the definition of ‘‘round diameter (See: wire stock’’ is added in alphabetical § 635.21(c)(5)(iii)(C)(2)(i)). Section 212 of the Small Business order to read as follows: * * * * * Regulatory Enforcement Fairness Act of [FR Doc. 2011–8052 Filed 4–1–11; 8:45 am] 1996 states that, for each rule or group § 635.2 Definitions. BILLING CODE 3510–22–P of related rules for which an agency is * * * * * required to prepare a FRFA, the agency Round wire stock means round metal shall publish one or more guides to wire, typically used in the DEPARTMENT OF COMMERCE assist small entities in complying with manufacturing of fishing hooks, that has the rule, and shall designate such not been forged, or otherwise modified National Oceanic and Atmospheric publications as ‘‘small entity compliance or treated in any way to increase the Administration guides.’’ The agency shall explain the original factory tensile strength set by actions a small entity is required to take the hook manufacturer. 50 CFR Part 648 to comply with a rule or group of rules. * * * * * Copies of the compliance guide for this ■ 3. In § 635.21, paragraph [Docket No. 0910051338–0151–02] final rule is available (see ADDRESSES). (c)(5)(iii)(C)(2)(i) is revised to read as RIN 0648–XA304 Weak Hook Voucher Program follows: Fisheries of the Northeastern United The National Fish and Wildlife § 635.21 Gear operation and deployment restrictions. States; Northeast Multispecies Foundation (an independent 501(c)(3) Fishery; Trip Limit Adjustments for the * * * * * non-profit that preserves and restores Common Pool Fishery our nation’s native wildlife species and (c) * * * habitats) is conducting a Weak Hook (5) * * * AGENCY: National Marine Fisheries (iii) * * * Service (NMFS), National Oceanic and Voucher Program through which (C) * * * Atlantic Tuna Longline permit holders (2) *** Atmospheric Administration (NOAA), who use PLL gear in the GOM may (i) For purposes of paragraphs Commerce. obtain an initial supply of weak hooks. (c)(5)(iii)(C)(1) and (c)(5)(iii)(C)(2) of this ACTION: Temporary rule; inseason The National Fish and Wildlife section, the outer diameter of an 18/0 adjustment of landing limits. Foundation will mail vouchers to circle hook at its widest point must be SUMMARY: Atlantic Tuna Longline permit holders no smaller than 2.16 inches (55 mm), NMFS increases the that used PLL gear in the GOM in 2009– and the outer diameter of a 16/0 circle possession limit for George’s Bank (GB) 2010. Atlantic Tuna Longline permit hook at its widest point must be no cod, Cape Cod (CC)/Gulf of Maine holders that have not received the smaller than 1.74 inches (44.3 mm), (GOM) yellowtail flounder, and National Fish and Wildlife Foundation when measured with the eye of the hook Southern New England (SNE)/Mid- voucher in the mail by April 12, 2011, on the vertical axis (y-axis) and Atlantic (MA) yellowtail flounder, and and are planning to fish with PLL gear perpendicular to the horizontal axis (x- reduces the trip limit GOM cod and in the GOM this year, may request a axis). The distance between the hook GOM winter flounder for Northeast (NE) voucher by contacting Mary Beth point and the shank (i.e., the gap) on an multispecies common pool vessels for Charles with the National Fish and 18/0 circle hook must be no larger than the 2010 fishing year (FY), through Wildlife Foundation at 202–595–2445 or 1.13 inches (28.8 mm), and the gap on April 30, 2011. This action is authorized [email protected]. Weak hook a 16/0 circle hook must be no larger under the authority of the Magnuson- vouchers are for hooks that will be used than 1.01 inches (25.8 mm). The Stevens Fishery Conservation and in the Gulf of Mexico and the National allowable offset is measured from the Management Act, and by the regulations Fish and Wildlife Foundation will barbed end of the hook, and is relative implementing Amendment 16 and consider requests for vouchers on a to the parallel plane of the eyed-end, or Framework Adjustment 44 to the NE case-by-case basis. shank, of the hook when laid on its side. Multispecies Fishery Management Plan (FMP). The action is intended to List of Subjects in 50 CFR Part 635 The only allowable offset circle hooks are those that are offset by the hook facilitate the harvest of GB cod, CC/ Fisheries, Fishing, Fishing vessels, manufacturer. In the Gulf of Mexico, as GOM yellowtail flounder, and SNE/MA Foreign relations, Imports, Penalties, described at § 600.105(c), circle hooks yellowtail to allow the total catch of Reporting and recordkeeping also must be constructed of corrodible these stocks to approach the pertinent requirements, Treaties. round wire stock that is no larger than common pool sub-annual catch limits 3.65 mm in diameter. (sub-ACLs). This action is also intended Dated: March 31, 2011. to reduce catch rates of GOM cod and Eric C. Schwaab, * * * * * GOM winter flounder by NE common Assistant Administrator for Fisheries, ■ 4. In § 635.71, add paragraph (a)(54) to pool vessels and minimize additional National Marine Fisheries Service. read as follows: overharvest of these stocks relative to For the reasons set out in the § 635.71 Prohibitions. the pertinent common pool sub-ACLs. preamble, 50 CFR part 635 is amended * * * * * DATES: The trip limit increases for GB as follows: (a) * * * cod and SNE/MA and CC/GOM (54) Possess, use, or deploy, in the yellowtail flounder are effective March PART 635—ATLANTIC HIGHLY Gulf of Mexico, any circle hook, other 31, 2011, through April 30, 2011. The MIGRATORY SPECIES than as described at § 635.21(c). Vessels trip limits reductions for GOM cod and in the Gulf of Mexico, with pelagic gear GOM winter flounder are effective April ■ 1. The authority citation for part 635 onboard, are prohibited from 5, 2011, through April 30, 2011. continues to read as follows: possessing, using, or deploying circle FOR FURTHER INFORMATION CONTACT: Authority: 16 U.S.C. 971 et seq.; 16 U.S.C. hooks that are constructed of round wire Sarah Heil, Fishery Policy Analyst, 1801 et seq. stock which is larger than 3.65 mm in (978) 281–9257, fax (978) 281–9135.

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SUPPLEMENTARY INFORMATION: action (75 FR 44924, July 30, 2010) determined that additional measures are Regulations governing the NE reduced the trip limit for GOM cod to needed to slow catch rates of GOM cod multispecies fishery are found at 50 CFR 200 lb (90.7 kg) per DAS up to 1,000 lb and GOM winter flounder by common 648 subpart F. The regulations at (453.6 kg) per trip and imposed a gear pool vessels. Therefore, the trip limit for § 648.86(o) authorize the NE Regional restriction in the U.S./Canada GB cod is increased to 3,000 lb (1,360.8 Administrator (RA) to adjust the Management Area to reduce catch of GB kg) per DAS up to 30,000 lb (13,607.8 possession limits for common pool yellowtail flounder. A September 2, kg) per trip, and the trip limit for CC/ vessels in order to optimize the harvest 2010, inseason action (75 FR 53872) GOM yellowtail flounder and SNE/MA of NE regulated multispecies by imposed 2:1 differential DAS counting yellowtail flounder is increased to 750 preventing the overharvest or in the Inshore GOM, Offshore GOM, lb (340.2 kg) per DAS up to 3,000 lb underharvest of the pertinent common Inshore GB, and Offshore GB (1,360.8 kg) per trip for common pool pool sub-ACLs. For FY 2010, the Differential DAS Areas to reduce effort common pool sub-ACLs for GB cod, on GOM cod, white hake, and witch vessels, effective March 31, 2011 GOM cod, CC/GOM yellowtail flounder, flounder. A fourth action (75 FR 59154, through April 30, 2011. In addition, the SNE/MA yellowtail flounder, and GOM September 27, 2010) further reduced the trip limit for GOM cod is reduced to 100 winter flounder are: 128 mt (282,192 lb); GOM cod trip limit to 100 lb (45.4 kg) lb (45.4 kg) per trip, and the trip limit 240 mt (529,109 lb); 50 mt (110,231 lb); per DAS. No inseason adjustments have for GOM winter flounder is reduced to 75 mt (165,347 lb), and 25 mt (55,116 been made to the possession limits for 100 lb (45.4 kg) per trip for common lb), respectively. The current possession GB cod, CC/GOM yellowtail flounder, or pool vessels, effective April 5, 2011, limit for GB cod is 2,000 lb (907.2 kg) SNE/MA yellowtail flounder for FY through April 30, 2011. This action does per day-at-sea (DAS) up to 20,000 lb 2010. not change the current cod trip limit for (9,071.8 kg) per trip, and the current As of March 24, 2011, the best vessels with a Handgear A (50 lb (22.7 possession limit for CC/GOM yellowtail available catch information, including kg) per trip), Handgear B (25 lb (11.3 kg) flounder and SNE/MA yellowtail Vessel Monitoring System (VMS) per trip), or Small Vessel Category (75 flounder is 250 lb (113.4 kg) per DAS up reports and dealer reports, indicated lb (34.0 kg) per trip of cod within the to 1,500 lb (680.4 kg) per trip. The that approximately 44 percent of the GB limit of 300 lb (136.1 kg) of cod, current possession limits for GOM cod cod, 67 percent of the CC/GOM haddock, and yellowtail flounder and GOM winter flounder are: 100 lb yellowtail flounder, 24 percent of the combined) permit. This action does (45.4 kg) per DAS up to 1,000 lb (453.6 SNE/MA yellowtail flounder, 102 change the GOM winter flounder trip percent of the GOM cod, and 100 kg) per trip and 250 lb (113.4 kg) per limit for vessels with a Handgear A, trip, respectively. percent of the GOM winter flounder The initial limit for GOM cod set by common pool sub-ACLs has been Handgear B, or Small Vessel Category Amendment 16 was 800 lb (362.9 kg) harvested. Based on this information, permit to 100 lb (45.4 kg) per trip). The per DAS up to 4,000 lb (1,814.5 kg) per the RA determined that additional trip limit adjustments implemented trip. An inseason action published in measures are needed to facilitate the through this action are detailed in the the Federal Register on May 27, 2010 harvest of GB cod, CC/GOM yellowtail table below. Catch will continue to be (75 FR 29678), reduced the common flounder, and SNE/MA yellowtail monitored through dealer-reported pool trip limits for five stocks: GOM flounder to help allow the total catch of landings, VMS catch reports, and other haddock, GB haddock, GOM winter these stocks by common pool vessels to available information, and if necessary, flounder, GB winter flounder, and GB approach the pertinent common pool additional adjustments to common pool yellowtail flounder. A subsequent sub-ACLs. Conversely, the RA management measures may be made.

Stock Old possession/trip limit New possession/trip limit

CC/GOM yellowtail flounder 250 lb (113.4 kg) per DAS up to 1,500 lb (680.4 kg) per 750 lb (340.2 kg) per DAS up to 3,000 lb (1,360.8 kg) trip. per trip. SNE yellowtail flounder ...... 250 lb (113.4 kg) per DAS up to 1,500 lb (680.4 kg) per 750 lb (340.2 kg) per DAS up to 3,000 lb (1,360.8 kg) trip. per trip. GB cod ...... 2,000 lb (907.2 kg) per DAS up to 20,000 lb (9,071.8 3,000 lb (1,360.8 kg) per DAS up to 30,000 lb kg) per trip. (13,607.8 kg) per trip. GOM cod ...... 100 lb (45.4 kg) per DAS up to 1,000 lb (453.6 kg) per 100 lb (45.4 kg) per trip. trip. GOM winter flounder ...... 250 lb (113.4 kg) per trip ...... 100 lb (45.4 kg) per trip.

Classification § 648.86(o) grant the RA authority to which this action is based have only This action is authorized by 50 CFR adjust the NE multispecies possession recently become available. The time part 648 and is exempt from review limits for common pool vessels in order necessary to provide for prior notice and under Executive Order 12866. to prevent the overharvest or comment, and delayed effectiveness for The Assistant Administrator for underharvest of the pertinent common this action, would prevent NMFS from Fisheries, NOAA finds good cause pool sub-ACLs. This action increases implementing the necessary possession pursuant to 5 U.S.C. 553(b)(3)(B) and the possession limit for GB cod, CC/ limit adjustments in a timely manner. A (d)(3) to waive prior notice and the GOM yellowtail flounder, and SNE/MA resulting delay in the liberalization of opportunity for public comment, as well yellowtail flounder to facilitate the possession limits would unnecessarily as delayed effectiveness, for this harvest of these stocks, as well as restrain catch rates for GB cod, CC/GOM inseason adjustment because notice, reduces the trip limits for GOM cod and yellowtail flounder, and SNE/MA comment, and a delayed effectiveness GOM winter flounder to minimize yellowtail flounder, thereby preventing would be impracticable and contrary to overharvest of the common pool sub- the total catch of these stocks to the public interest. The regulations at ACLs for these stocks. Catch data upon approach the pertinent common pool

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sub-ACLs. In addition, a resulting delay catcher vessels using trawl gear in the After the effective date of this closure in the curtailment of the catch rates of BSAI. the maximum retainable amounts at GOM cod and GOM winter flounder DATES: Effective 1200 hrs, Alaska local § 679.20(e) and (f) apply at any time could increase the amount of time (A.l.t.), April 4, 2011, through 1200 during a trip. overharvest of GOM cod, or cause the hrs, A.l.t., June 10, 2011. Classification GOM winter flounder sub-ACL to be FOR FURTHER INFORMATION CONTACT: Josh exceeded, thereby undermining the Keaton, 907–586–7228. This action responds to the best conservation objectives of the FMP. SUPPLEMENTARY INFORMATION: NMFS available information recently obtained Authority: 16 U.S.C. 1801 et seq. manages the groundfish fishery in the from the fishery. The Assistant Dated: March 31, 2011. BSAI exclusive economic zone Administrator for Fisheries, NOAA, (AA), finds good cause to waive the Margo Schulze-Haugen, according to the Fishery Management Plan for Groundfish of the Bering Sea requirement to provide prior notice and Acting Director, Office of Sustainable and Aleutian Islands Management Area opportunity for public comment Fisheries, National Marine Fisheries Service. (FMP) prepared by the North Pacific pursuant to the authority set forth at [FR Doc. 2011–8056 Filed 3–31–11; 4:15 pm] Fishery Management Council under 5 U.S.C. 553(b)(B) as such requirement BILLING CODE 3510–22–P authority of the Magnuson-Stevens is impracticable and contrary to the Fishery Conservation and Management public interest. This requirement is Act. Regulations governing fishing by impracticable and contrary to the public DEPARTMENT OF COMMERCE U.S. vessels in accordance with the FMP interest as it would prevent NMFS from National Oceanic and Atmospheric appear at subpart H of 50 CFR part 600 responding to the most recent fisheries Administration and 50 CFR part 679. data in a timely fashion and would The B season allowance of the 2011 delay the closure of Pacific cod by 50 CFR Part 679 Pacific cod TAC allocated to catcher catcher vessels using trawl gear in the vessels using trawl gear in the BSAI is BSAI. NMFS was unable to publish a [Docket No. 101126521–0640–02] 4,949 metric tons (mt) as established by notice providing time for public RIN 0648–XA347 the final 2011 and 2012 harvest comment because the most recent, specifications for groundfish in the relevant data only became available as Fisheries of the Exclusive Economic BSAI (76 FR 11139, March 1, 2011). of March 30, 2011. In accordance with § 679.20(d)(1)(i), Zone Off Alaska; Pacific Cod by The AA also finds good cause to Catcher Vessels Using Trawl Gear in the Administrator, Alaska Region, NMFS, has determined that the B season waive the 30-day delay in the effective the Bering Sea and Aleutian Islands date of this action under 5 U.S.C. Management Area allowance of the 2011 Pacific cod TAC allocated to catcher vessels using trawl 553(d)(3). This finding is based upon AGENCY: National Marine Fisheries gear in the BSAI will soon be reached. the reasons provided above for waiver of Service (NMFS), National Oceanic and Therefore, the Regional Administrator is prior notice and opportunity for public Atmospheric Administration (NOAA), establishing a directed fishing comment. Commerce. allowance of 4,449 mt, and is setting This action is required by § 679.20 ACTION: Temporary rule; closure. aside the remaining 500 mt as bycatch and is exempt from review under to support other anticipated groundfish Executive Order 12866. SUMMARY: NMFS is prohibiting directed fisheries. In accordance with Authority: 16 U.S.C. 1801 et seq. fishing for Pacific cod by catcher vessels § 679.20(d)(1)(iii), the Regional using trawl gear in the Bering Sea and Administrator finds that this directed Dated: March 31, 2011. Aleutian Islands management area fishing allowance has been reached. Margo Schulze-Haugen, (BSAI). This action is necessary to Consequently, NMFS is prohibiting Acting Director, Office of Sustainable prevent exceeding the B season directed fishing for Pacific cod by Fisheries, National Marine Fisheries Service. allowance of the 2011 Pacific cod catcher vessels using trawl gear in the [FR Doc. 2011–8058 Filed 3–31–11; 4:15 pm] allowable catch (TAC) specified for BSAI. BILLING CODE 3510–22–P

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Proposed Rules Federal Register Vol. 76, No. 65

Tuesday, April 5, 2011

This section of the FEDERAL REGISTER and center auxiliary tank override and FOR FURTHER INFORMATION CONTACT: contains notices to the public of the proposed jettison pumps. An ignition source in Elias Natsiopoulos, Aerospace Engineer, issuance of rules and regulations. The the fuel tank could result in a fire or an Systems and Equipment Branch, ANM– purpose of these notices is to give interested explosion and consequent loss of the 130S, FAA, Seattle Aircraft Certification persons an opportunity to participate in the airplane. Since these actions impose an Office, 1601 Lind Avenue, SW., Renton, rule making prior to the adoption of the final rules. additional burden over that proposed in Washington 98057–3356; telephone the NPRM, we are reopening the (425) 917–6478; fax (425) 917–6590; comment period to allow the public the e-mail [email protected]. DEPARTMENT OF TRANSPORTATION chance to comment on these proposed SUPPLEMENTARY INFORMATION: changes. Comments Invited Federal Aviation Administration DATES: We must receive comments on this supplemental NPRM by May 2, We invite you to send any written 14 CFR Part 39 2011. relevant data, views, or arguments about this proposed AD. Send your comments [Docket No. FAA–2009–1221; Directorate ADDRESSES: You may send comments by to an address listed under the Identifier 2008–NM–097–AD] any of the following methods: • ADDRESSES section. Include ‘‘Docket No. RIN 2120–AA64 Federal eRulemaking Portal: Go to FAA–2009–1221; Directorate Identifier http://www.regulations.gov. Follow the 2008–NM–097–AD’’ at the beginning of Airworthiness Directives; The Boeing instructions for submitting comments. • your comments. We specifically invite Company Model 767 Airplanes Fax: 202–493–2251. comments on the overall regulatory, • Mail: U.S. Department of economic, environmental, and energy AGENCY: Federal Aviation Transportation, Docket Operations, aspects of this proposed AD. We will Administration (FAA), DOT. M–30, West Building Ground Floor, consider all comments received by the ACTION: Room W12–140, 1200 New Jersey Supplemental notice of closing date and may amend this proposed rulemaking (NPRM); Avenue, SE., Washington, DC 20590. proposed AD because of those • Hand Delivery: U.S. Department of reopening of comment period. comments. Transportation, Docket Operations, We will post all comments we SUMMARY: We are revising an earlier M–30, West Building Ground Floor, proposed airworthiness directive (AD) receive, without change, to http:// Room W12–140, 1200 New Jersey www.regulations.gov, including any for the products listed above. That Avenue, SE., Washington, DC 20590, NPRM proposed to require installing personal information you provide. We between 9 a.m. and 5 p.m., Monday will also post a report summarizing each new panel assemblies in the main through Friday, except Federal holidays. equipment center or on the forward substantive verbal contact we receive For service information Boeing about this proposed AD. cargo compartment sidewall and Commercial Airplanes, Attention: Data removing certain relays from some & Services Management, P.O. Box 3707, Discussion panels in the main equipment center. MC 2H–65, Seattle, Washington 98124– We issued an NPRM to amend 14 CFR That NPRM also proposed to require 2207; telephone 206–544–5000, part 39 to include an airworthiness revising the maintenance program to extension 1; fax 206–766–5680; e-mail directive (AD) that would apply to The incorporate Airworthiness Limitations [email protected]; Internet Boeing Company Model 767–200, –300, (AWLs) No. 28–AWL–27 and No. 28– https://www.myboeingfleet.com. You –300F, and –400ER series airplanes. AWL–28. That NPRM was prompted by may review copies of the referenced That NPRM published in the Federal fuel system reviews conducted by the service information at the FAA, Register on December 29, 2009 (74 FR manufacturer. For certain airplanes, this Transport Airplane Directorate, 1601 68743). That NPRM proposed to require action revises that NPRM by proposing Lind Avenue, SW., Renton, Washington. installing new panel assemblies in the to require prior or concurrent For information on the availability of main equipment center or on the installation of a second fuel crossfeed this material at the FAA, call 425–227– forward cargo compartment sidewall valve. This action also revises that 1221. and removing certain relays from some NPRM by proposing an alternative Examining the AD Docket panels in the main equipment center. location for the installation of the new That NPRM also proposed to require panel assemblies for airplanes that have You may examine the AD docket on revising the maintenance program to the optional water system drain the Internet at http:// incorporate Airworthiness Limitations plumbing and changing the www.regulations.gov; or in person at the (AWLs) No. 28–AWL–27 and No. 28– interconnecting wiring between the Docket Management Facility between AWL–28. P141 panel and the P36 and P37 panels. 9 a.m. and 5 p.m., Monday through For airplanes with a deactivated center Friday, except Federal holidays. The AD Actions Since Original NPRM Was fuel tank, this action revises that NPRM docket contains this proposed AD, the Issued by proposing an alternative functional regulatory evaluation, any comments Since we issued the original NPRM, test for the left and right override/ received, and other information. The the manufacturer has notified us that jettison pumps. We are proposing this street address for the Docket Office certain airplanes affected by the original supplemental NPRM to prevent possible (phone: 800–647–5527) is in the NPRM have the optional water system sources of ignition in a fuel tank caused ADDRESSES section. Comments will be drain plumbing. This optional system by electrical fault or uncommanded dry available in the AD docket shortly after was not addressed in Boeing Alert operation of the main tank boost pumps receipt. Service Bulletin 767–28A0085, dated

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January 10, 2008; or Boeing Service certain other paragraphs have been 2, dated August 19, 2010, Boeing Alert Bulletin 767–28A0085, Revision 1, rearranged. As a result, the Service Bulletin 767–28A0084, dated dated June 25, 2009; which we referred corresponding paragraph identifiers May 3, 2006, is not listed in Paragraph to as appropriate sources of service have changed from the original NPRM 1.B. of Boeing Service Bulletin 767– information for accomplishing the in this supplemental NPRM, as listed in 28A0085, Revision 2, dated August 19, proposed actions. Several operators the table titled ‘‘Revised Paragraph 2010. We have coordinated this attempted to accomplish the actions and Identifiers.’’ In the disposition of difference with Boeing. encountered equipment installation comments we will refer to the relevant Requests To Refer to R1 of AD 2008–11– interference. Specifically, the paragraph of the original NPRM or the 01 installation of the new P141 panel at the supplemental NPRM, depending on location specified in either revision of context. JAL, Continental Airlines (CAL), the service bulletin interferes with the United Airlines (UAL), and UPS pointed optional water system drain plumbing. REVISED PARAGRAPH IDENTIFIERS out that although paragraph (i) of the We have revised the supplemental original NPRM proposed the option of NPRM to refer to Boeing Service Paragraph in the Corresponding or new incorporating paragraph (g)(2) of AD paragraph in the supple- 2008–11–01, amendment 39–15523 (73 Bulletin 767–28A0085, Revision 2, original NPRM mental NPRM dated August 19, 2010. FR 29414, May 21, 2008), that AD has Boeing Service Bulletin 767– none ...... paragraph (d)—new ATA since been revised to AD 2008–11–01 28A0085, Revision 2, dated August 19, code. R1, amendment 39–16145 (74 FR 68515, 2010, specifies the following changes: paragraph (d) .... paragraph (e). December 28, 2009). • For airplanes equipped with the paragraph (e) .... paragraph (f). We agree with the requests to refer to optional water system drain plumbing: paragraph (f) ..... paragraph (g). AD 2008–11–01 R1, amendment 39– An alternate location is specified for the none ...... paragraph (h)—exception. 16145. We issued the revision to AD installation of the P141 panel. The paragraph (g) .... paragraph (i). 2008–11–01 to clarify the AD’s intended none ...... paragraph (j)—new concur- effect on spares and on-airplane fuel interconnecting wiring between the rent requirement. P141 panel and the P36 and P37 panels paragraph (h) .... paragraph (k). tank system components, regarding the is also changed due to the relocation of paragraph (i) ..... paragraph (l). use of maintenance manuals and the P141 panel. paragraph (j) ..... paragraph (m). instructions for continued • For airplanes with a deactivated none ...... paragraph (n)—new para- airworthiness. The actions required by center fuel tank (alternately referred to graph for credit for ac- AD 2008–11–01 R1 are consistent with as the center auxiliary fuel tank): An tions accomplished in paragraph (j) of the original NPRM, alternative functional test is added for accordance with pre- which states that ‘‘after accomplishing the left and right override/jettison vious service informa- the actions specified in paragraph (i) of tion. pumps. paragraph (k) .... paragraph (o). this AD, no alternative inspections or • For airplanes having line positions inspection intervals may be used.’’ We 1 through 430: Installation of a second Comments have changed paragraph (l) of this fuel crossfeed valve is added as a prior supplemental NPRM to refer to AD or concurrent action. This installation is We gave the public the opportunity to 2008–11–01, amendment 39–15523, and specified to be done in accordance with comment on the original NPRM. The AD 2008–11–01 R1, amendment 39– Boeing Service Bulletin 767–28–0034, following presents the comments 16145. Revision 3, dated March 14, 1996. received on the NPRM and the FAA’s • Additional error corrections and response to each comment. Requests for Clarification of Date of clarifications, including clarifications of Maintenance Planning Data (MPD) Request To Add Service Information to Document wiring configurations and routing, and Table 1 of the Original NPRM increased work-hours for airplanes with Several commenters requested the optional water system drain Japan Airlines (JAL) requested that we clarification of the intent of the plumbing. revise Table 1 in paragraph (g) of the ‘‘Revision March 2009’’ date of Boeing original NPRM to include the original 767 Maintenance Planning Data (MPD) Explanations of Additional Changes to versions of two service bulletins as Document, Section 9, D622T001–9, the Original NPRM sources of service information. JAL Revision March 2009, referred to in the We have added a new paragraph (d) pointed out that these two service original NPRM. to this supplemental NPRM to provide bulletins are referred to in AD 2009–16– • JAL stated that the revision should the Air Transport Association (ATA) of 06, amendment 39–15989, which is the be Revision April 2009 or Revision America subject code 28, Fuel. This subject of paragraph (g) of the original August 2009 because it does not appear code is added to make this NPRM. that Revision March 2009 was issued. supplemental NPRM parallel with other We agree with JAL’s request. We have • CAL believed that the date should new AD actions. We have reidentified included a new Table 2 in this be Revision May 2009. subsequent paragraphs accordingly. supplemental NPRM to include Boeing • UAL asked if the intent of the We have included the cost of the Alert Service Bulletin 767–28A0083, proposed rule is to override the prior/concurrent installation of the dated May 3, 2006; and Boeing Alert requirements of AD 2008–11–01 R1 in second crossfeed valve. Service Bulletin 767–28A0084, dated that only Revision May 2009 may be We have also removed Table 1 and May 3, 2006. Both of these service used for compliance. UAL stated that it fully cited the service information that bulletins are acceptable for compliance believed that operators should be was specified in the table. We with the requirements of AD 2009–16– allowed to use either Revision April reidentified the subsequent table. 06. Although Boeing Service Bulletin 2008 or Revision May 2009, and that As noted above, we have added 767–28A0083, dated May 3, 2006, is paragraph (h) of the original NPRM certain paragraphs to the supplemental identified in Paragraph 1.B., should be revised accordingly. NPRM and, since we issued the original ‘‘Concurrent Requirements,’’ of Boeing • UPS pointed out that as an optional NPRM, the format has been revised, and Service Bulletin 767–28A0085, Revision action in AD 2008–11–01 R1, AWLs No.

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28–AWL–27 and No. 28–AWL–28 may Request To Remove Paragraph (g) of the Request To Remove Paragraphs (h), (i), be incorporated into the maintenance Original NPRM and (j) of the Original NPRM program as identified in Revision April All Nippon Airways (ANA) requested 2008 or Revision May 2009 of the MPD. Boeing requested that we consider removing paragraph (g) from the original that we remove the proposed UPS was unclear as to whether the requirements of paragraphs (h), (i), and NPRM. Paragraph (g) of the original original NPRM would supersede the (j) of the original NPRM, which specify NPRM is the concurrent installation of previous option by requiring that only incorporating AWLs No. 28–AWL–27 an automatic shutoff system for the Revision March 2009 be used. UPS and No. 28–AWL–28 into the further stated that AD 2008–11–01 R1 auxiliary fuel tank pump. Boeing maintenance program. ANA stated that notes that the changes in Revision May explained that the safety conditions and these AWLs have already been 2009 are for clarification only and that fixes associated with references to introduced in the airline maintenance either Revision April 2008 or Revision Boeing Service Bulletin 767–28A0083, program as required by AD 2008–11–01 May 2009 are acceptable for use. Revision 2, dated February 12, 2009; or R1. Boeing Service Bulletin 767–28A0084, We agree that the date of the MPD We disagree with the request to Revision 1, dated April 26, 2007; are remove paragraphs (k), (l), and (m) of document needs to be clarified. AWLs already mandated by AD 2009–16–06, the supplemental NPRM (paragraphs No. 28–AWL–27 and No. 28–AWL–28 and by the instructions in paragraph (f) (h), (i), and (j) of the original NPRM). were added to Boeing 767 Maintenance of the original NPRM with Incorporating AWLs No. 28–AWL–27 Planning Data (MPD) Document, Section implementation of Boeing Service and No. 28–AWL–28 into the 9, D622T001–9, in Revision October Bulletin 767–28A0085, Revision 2, maintenance program in accordance 2007. None of the revisions of this MPD dated August 19, 2010. Boeing stated with AD 2008–11–01 R1 is an option, document since that time have changed that future changes to paragraph (g) of not a requirement. Operators may or the text of AWLs No. 28–AWL–27 and the original NPRM would require may not decide to exercise this option. No. 28–AWL–28. Therefore, either of alternative methods of compliance The actions proposed in paragraph (k) of the revisions mentioned in AD 2008– (AMOCs) and create added paperwork this supplemental NPRM remain 11–01 R1, Revision April 2008 or for Boeing, the airlines, and the FAA. applicable. However, paragraph (l) of Revision May 2009, may be used to this supplemental NPRM gives credit to update the maintenance program to We disagree with the request to operators of the affected airplanes that incorporate AWLs No. 28–AWL–27 and remove paragraph (g) of the original chose the optional action; doing the No. 28–AWL–28. We have revised NPRM. Accomplishing the actions optional action terminates the actions paragraph (k) of this supplemental proposed in the original NPRM for the proposed in paragraph (k) of this NPRM to specify that Revision April center fuel tank pump system depend supplemental NPRM. We have not 2008, Revision March 2009, or Revision on the configuration of the center fuel changed this supplemental NPRM in May 2009, may be used. tank pump system of the affected this regard. airplanes as modified by the Request To Extend Compliance Time accomplishment of the actions specified Request To Define Unsafe Condition and Corrective Actions Clearly in the service information identified in CAL had no technical objection to the paragraph (g) of the original NPRM. TDG Aerospace (TDG) requested that original NPRM, but pointed out that Therefore, airplanes in the effectivity of we revise the text of the original NPRM although the compliance time for the service bulletins identified in Table to reflect the construction of a typical accomplishing the actions proposed in 1 of this supplemental NPRM must have NPRM. TDG stated that in that the original NPRM is 60 months, the the actions done prior to or concurrently construction, the FAA typically concurrent requirements from AD 2009– with the actions proposed in paragraph discusses the unsafe condition, 16–06, which is specified as terminating (g) of this supplemental NPRM. If we describes the desired corrective action, action for paragraph (g) of the original remove paragraph (i) of this and then refers to the manufacturer’s NPRM, have a compliance time of 36 service information for approved supplemental NPRM, there is no months. CAL stated that doing the instructions for doing the corrective assurance that the center fuel tank actions in AD 2009–16–06 requires action. TDG pointed out that the intent pump system for the affected airplanes extensive airplane modifications and of the original NPRM is effectively would be in the correct configuration material allocations that can only be masked by focusing on the ‘‘Installation during the accomplishment of the accomplished during a heavy check or of Panel Assemblies and Removal of actions proposed in paragraph (g) of this special maintenance hold. Therefore, Relays.’’ TDG said this suggests that the supplemental NPRM. CAL requested that we consider a minor FAA intends to mandate ‘‘Installation of extension to the compliance time in AD Should the service information Panel Assemblies and Removal of 2009–16–06. specified in paragraph (i) of this Relays’’ as a desired corrective action for supplemental NPRM change in a way the unsafe condition identified in We disagree with approving an that affects the ground fault interrupt paragraph (d) of the original NPRM. extension to the compliance time for AD (GFI) relays and uncommanded-on TDG argued that the corrective action is 2009–16–06 through this supplemental protective feature, under the provisions the installation of an uncommanded-on NPRM. However, we will consider of paragraph (o) of this supplemental protection system and installation of requests for an adjustment to the NPRM, we will consider requests for GFI relays. TDG stated that installing compliance time under the provisions of approval of an AMOC if sufficient data new panels and removing relays is paragraph (o) of AD 2009–16–06 if data are submitted to substantiate that the simply one method of achieving the are submitted to substantiate that such design change would provide an corrective action. TDG further stated an adjustment would provide an that the language of the rule is acceptable level of safety. We have not acceptable level of safety. We have not important with respect to the changed this supplemental NPRM in changed the supplemental NPRM in this application for AMOCs and said it regard. this regard. would be more straightforward for

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AMOC applicants to show an equivalent Request for Clarification of Prior or this service bulletin includes level of safety to installing Concurrent Actions for Airplanes With instructions for testing of an airplane uncommanded-on protection and GFI Deactivated Center Fuel Tank with a deactivated center fuel tank relays as opposed to showing an TDG pointed out that paragraph (j) of (reference Step 3.B.29.e. of the equivalent level of safety to installation AD 2009–16–06 provides for optional Accomplishment Instructions of this of panel assemblies and removal of terminating action for paragraphs (f), service bulletin). If a deactivated center relays. (h), and (i) of that AD via deactivation fuel tank is later reactivated, the requirements in paragraph (i) of AD We partially agree with TDG’s request of the center fuel tank. TDG expressed 2009–16–06 must be done. We have not for clarification. We disagree that the concern that operators that deactivate the center tank will not be able to do the changed the supplemental NPRM in this order of the supplemental NPRM should regard. be revised. The unsafe condition and modifications proposed in the original NPRM without prior or concurrent the intent of the proposed rule are FAA’s Determination installation of the automatic shutoff described in the Summary and system in accordance with the actions We are proposing this supplemental Discussion sections and paragraph (d) of in proposed paragraph (g) of the original NPRM because we evaluated all the the original NPRM. The heading NPRM. TDG stated that requiring relevant information and determined ‘‘Installation of Panel Assemblies and operators to install an automatic shutoff the unsafe condition described Removal of Relays’’ is a descriptive title system on an airplane with a previously is likely to exist or develop only and not the enforceable language of deactivated center tank effectively in other products of the same type paragraph (f) of the original NPRM. eliminates the center tank deactivation design. Certain changes described above However, we agree that some as an optional terminating action for AD expand the scope of the original NPRM. clarification of the P140 and P141 2009–16–06. As a result, we have determined that it assemblies is necessary. These panel We infer from TDG’s comments that it is necessary to reopen the comment assemblies are preassembled modules sees a conflict between the original period to provide additional that contain the GFI relays and the NPRM and AD 2009–16–06, amendment opportunity for the public to comment center fuel tank override/jettison pumps 39–15989, that would invalidate certain on this supplemental NPRM. provisions of that AD. We disagree. We un-commanded ON protective features. Proposed Requirements of the note that paragraph (g) of the original We have included in the Summary and Supplemental NPRM Discussion sections of the supplemental NPRM proposed to require changes to This supplemental NPRM would NPRM the words ‘‘* * * main all affected airplanes, whether the airplanes have an active center fuel tank require accomplishing the actions equipment center or on the forward (with changes made per paragraphs (f), specified in the service information cargo compartment sidewall and (h), and (i) of AD 2009–16–06), or a described previously. removing certain relays from some deactivated center fuel tank (as allowed Costs of Compliance panels in the main equipment center.’’ by paragraph (j) of AD 2009–16–06). We have also revised the wording in Changes made per Boeing Service We estimate that this proposed AD paragraph (g) of this supplemental Bulletin 767–28A0085, Revision 2, will affect 416 airplanes of U.S. registry. NPRM to reflect a similar wording. dated August 19, 2010, can be made on We estimate the following costs to airplanes in either configuration, and comply with this proposed AD:

ESTIMATED COSTS

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

Installation of GFI equipment and Between 216 and 279 work-hours Between $52,285 and Between $70,645 and Up to $31,964,608. wiring. × $85 per hour = between $53,123. $76,838. $18,360 and $23,715. Installation of second crossfeed Between 274 and 302 work-hours Between $30,838 and Between $54,128 and Between $22,517,248 valve (prior/concurrent action). × $85 per hour = between $66,903. $92,573. and $38,510,368. $23,290 and $25,670. Installing automatic shutoff sys- Between 3 and 29 work-hours × Between $421 and Between $676 and Between $281,216 tem (prior/concurrent action; re- $85 per hour = between $255 $9,374. $11,835. and $4,925,024. quired by AD 2009–16–06). and $2,465. Revising the maintenance pro- 1 ...... None ...... $85 ...... $35,360. gram.

According to the manufacturer, some rules on aviation safety. Subtitle I, promoting safe flight of civil aircraft in of the costs of this proposed AD may be section 106, describes the authority of air commerce by prescribing regulations covered under warranty, thereby the FAA Administrator. ‘‘Subtitle VII: for practices, methods, and procedures reducing the cost impact on affected Aviation Programs’’ describes in more the Administrator finds necessary for individuals. We do not control warranty detail the scope of the Agency’s safety in air commerce. This regulation coverage for affected individuals. As a authority. is within the scope of that authority result, we have included all costs in our because it addresses an unsafe condition cost estimate. We are issuing this rulemaking under the authority described in Subtitle VII, that is likely to exist or develop on Authority for This Rulemaking part A, subpart III, section 44701: products identified in this rulemaking Title 49 of the United States Code ‘‘General requirements.’’ Under that action. specifies the FAA’s authority to issue section, Congress charges the FAA with

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Regulatory Findings Note 1: This AD requires revisions to Prior or concurrently with accomplishing the certain operator maintenance documents to action required by paragraph (g) of this AD, We determined that this proposed AD include new inspections. Compliance with install an automatic shutoff system for the would not have federalism implications these inspections is required by 14 CFR auxiliary fuel tank pump, in accordance with under Executive Order 13132. This 91.403(c). For airplanes that have been the Accomplishment Instructions of Boeing proposed AD would not have a previously modified, altered, or repaired in Service Bulletin 767–28A0083, Revision 2, substantial direct effect on the States, on the areas addressed by these inspections, the dated February 12, 2009; or Boeing Service the relationship between the national operator may not be able to accomplish the Bulletin 767–28A0084, Revision 1, dated Government and the States, or on the inspections described in the revisions. In this April 26, 2007; as applicable. Accomplishing situation, to comply with 14 CFR 91.403(c), the requirements of AD 2009–16–06, distribution of power and the operator must request approval for an responsibilities among the various amendment 39–15989, terminates the alternative method of compliance (AMOC) requirements of this paragraph. levels of government. according to paragraph (o) of this AD. The (j) For airplanes having line positions 1 For the reasons discussed above, I request should include a description of through 430: Prior or concurrently with certify this proposed regulation: changes to the required inspections that will accomplishing the action required by (1) Is not a ‘‘significant regulatory ensure the continued operational safety of paragraph (g) of this AD, install a second fuel action’’ under Executive Order 12866, the airplane. crossfeed valve, in accordance with the (2) Is not a ‘‘significant rule’’ under the Subject Accomplishment Instructions of Boeing DOT Regulatory Policies and Procedures Service Bulletin 767–28–0034, Revision 3, (d) Joint Aircraft System Component dated March 14, 1996. (44 FR 11034, February 26, 1979), (JASC)/Air Transport Association (ATA) of (3) Will not affect intrastate aviation America Code 28, Fuel. Maintenance Program Revision in Alaska, and Unsafe Condition (k) Concurrently with accomplishing the (4) Will not have a significant actions required by paragraph (g) of this AD, economic impact, positive or negative, (e) This AD results from fuel system or within 30 days after the effective date of on a substantial number of small entities reviews conducted by the manufacturer. We this AD, whichever occurs later: Revise the under the criteria of the Regulatory are issuing this AD to prevent possible maintenance program by incorporating sources of ignition in a fuel tank caused by Airworthiness Limitations (AWLs) No. 28– Flexibility Act. electrical fault or uncommanded dry AWL–27 and No. 28–AWL–28 of Section 9 operation of the main tank boost pumps and List of Subjects in 14 CFR Part 39 (‘‘AIRWORTHINESS LIMITATIONS (AWLs) center auxiliary tank override and jettison AND CERTIFICATION MAINTENANCE Air transportation, Aircraft, Aviation pumps. An ignition source in the fuel tank REQUIREMENTS (CMRs)’’) of the Boeing 767 safety, Incorporation by reference, could result in a fire or an explosion, and Safety. consequent loss of the airplane. Maintenance Planning Data (MPD) Document, D622T001–9, Revision April The Proposed Amendment Compliance 2008; Revision March 2009; or Revision May 2009. The initial compliance time for the Accordingly, under the authority (f) Comply with this AD within the compliance times specified, unless already actions specified in AWLs No. 28–AWL–27 delegated to me by the Administrator, done. and No. 28–AWL–28 is within 1 year after the FAA proposes to amend 14 CFR part accomplishing the installation required by 39 as follows: Installation of Panel Assemblies and paragraph (g) of this AD, or within 1 year Removal of Relays after the effective date of this AD, whichever PART 39—AIRWORTHINESS (g) Within 60 months after the effective occurs later. DIRECTIVES date of this AD, install ground fault interrupt Terminating Action for AWLs Revision relays (P140 and P141 panel assemblies) and 1. The authority citation for part 39 all applicable parts and components in the (l) Incorporating AWLs No. 28–AWL–27 continues to read as follows: main equipment center or in the forward and No. 28–AWL–28 into the maintenance program in accordance with paragraph (g)(2) Authority: 49 U.S.C. 106(g), 40113, 44701. cargo compartment sidewall, as applicable, and remove the fuel boost pump control of AD 2008–11–01, amendment 39–15523, or § 39.13 [Amended] relays from the P33, P36, and P37 panels, in paragraph (g)(2) of 2008–11–01 R1, amendment 39–16145, terminates the action 2. The FAA amends § 39.13 by adding accordance with the Accomplishment Instructions of Boeing Service Bulletin 767– required by paragraph (k) of this AD. the following new airworthiness 28A0085, Revision 2, dated August 19, 2010, No Alternative Inspections or Inspection directive (AD): except as required by paragraph (h) of this Intervals The Boeing Company: Docket No. FAA– AD. (m) After accomplishing the actions 2009–1221; Directorate Identifier 2008– Exception to Service Bulletin NM–097–AD. specified in paragraph (k) of this AD, no (h) Although paragraph 3.B.29.e. of the alterative inspections or inspection intervals Comments Due Date Accomplishment Instructions of Boeing may be used unless the inspections or (a) We must receive comments by May 2, Service Bulletin 767–28A0085, Revision 2, intervals are approved as an alternative 2011. dated August 19, 2010, specifies an method of compliance (AMOC) in alternative functional test of the left and right accordance with the procedures specified in Affected ADs center override pumps as an option, this AD paragraph (o) of this AD. (b) None. requires that test for airplanes on which the Credit for Actions Accomplished in center tank is deactivated. Applicability Accordance With Previous Service (c) This AD applies to The Boeing Prior/Concurrent Installations Information Company Model 767–200, –300, –300F, and (i) For airplanes identified in paragraph (n) Actions done before the effective date –400ER series airplanes, certificated in any 1.A.1. of Boeing Service Bulletin 767– of this AD in accordance with the service category; as identified in Boeing Service 28A0083, Revision 2, dated February 12, information identified in Table 1 of this AD Bulletin 767–28A0085, Revision 2, dated 2009; or Boeing Service Bulletin 767– are acceptable for compliance with the August 19, 2010. 28A0084, Revision 1, dated April 26, 2007: corresponding requirements of this AD.

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TABLE 1—CREDIT SERVICE INFORMATION

Boeing Service Bulletin Revision Date

Boeing Alert Service Bulletin 767–28A0085 ...... Original ...... January 10, 2008. Boeing Service Bulletin 767–28A0085 ...... 1 ...... June 25, 2009. Boeing Alert Service Bulletin 767–28A0083 ...... Original ...... May 3, 2006. Boeing Service Bulletin 767–28A0083 ...... 1 ...... April 26, 2007. Boeing Alert Service Bulletin 767–28A0084 ...... Original ...... May 3, 2006. Boeing Service Bulletin 767–28–0034 ...... 2 ...... May 4, 1995.

Alternative Methods of Compliance DEPARTMENT OF HOMELAND FOR FURTHER INFORMATION CONTACT: If (AMOCs) SECURITY you have questions on this proposed (o)(1) The Manager, Seattle Aircraft rule, call or e-mail BOSN3 Joseph M. Certification Office (ACO), FAA, has the Coast Guard Edge, Coast Guard Sector North authority to approve AMOCs for this AD, if Carolina, Coast Guard; telephone 252– requested using the procedures found in 14 33 CFR Part 165 247–4525, e-mail CFR 39.19. In accordance with 14 CFR 39.19, [Docket No. USCG–2011–0184] [email protected]. If you have send your request to your principal inspector questions on viewing or submitting or local Flight Standards District Office, as RIN 1625–AA00 material to the docket, call Renee V. appropriate. If sending information directly Wright, Program Manager, Docket to the manager of the ACO, send it to the Safety Zone, Newport River; Morehead Operations, telephone 202–366–9826. attention of the person identified in the City, NC SUPPLEMENTARY INFORMATION: Related Information section of this AD. AGENCY: Coast Guard, DHS. Information may be e-mailed to: 9-ANM- Public Participation and Request for [email protected]. ACTION: Notice of proposed rulemaking. Comments (2) Before using any approved AMOC, SUMMARY: The Coast Guard proposes the We encourage you to participate in notify your appropriate principal inspector, establishment a safety zone on the this rulemaking by submitting or lacking a principal inspector, the manager waters of the Newport River under the comments and related materials. All of the local flight standards district office/ main span US 70/Morehead City— comments received will be posted certificate holding district office. Newport River high rise bridge in without change to http:// Related Information Carteret County, NC. This safety zone is www.regulations.gov and will include necessary to provide for safety of life on any personal information you have (p) For more information about this AD, provided. contact Elias Natsiopoulos, Aerospace navigable waters during the Engineer, Systems and Equipment Branch, establishment of staging for bridge Submitting Comments maintenance. This rule will enhance the ANM–130S, FAA, Seattle Aircraft If you submit a comment, please safety of the contractors performing Certification Office, 1601 Lind Avenue, SW., include the docket number for this maintenance as well as the safety Renton, Washington 98057–3356; telephone rulemaking (USCG–2011–0184), vessels that plan to transit this area. (425) 917–6478; fax (425) 917–6590; e-mail indicate the specific section of this [email protected]. DATES: Comments and related material document to which each comment (q) For service information identified in must be received by the Coast Guard on applies, and provide a reason for each this AD, contact Boeing Commercial or before May 5, 2011. suggestion or recommendation. You Airplanes, Attention: Data & Services ADDRESSES: You may submit comments may submit your comments and Management, P.O. Box 3707, MC 2H–65, identified by docket number USCG– material online (via http:// Seattle, Washington 98124–2207; telephone 2011–0184 using any one of the www.regulations.gov) or by fax, mail, or 206–544–5000, extension 1; fax 206–766– following methods: hand delivery, but please use only one 5680; e-mail [email protected]; (1) Federal eRulemaking Portal: of these means. If you submit a Internet https://www.myboeingfleet.com. You http://www.regulations.gov. comment online via http:// may review copies of the referenced service (2) Fax: 202–493–2251. www.regulations.gov, it will be information at the FAA, Transport Airplane (3) Mail: Docket Management Facility Directorate, 1601 Lind Avenue, SW., Renton, considered received by the Coast Guard (M–30), U.S. Department of Washington. For information on the when you successfully transmit the Transportation, West Building Ground availability of this material at the FAA, call comment. If you fax, hand deliver, or Floor, Room W12–140, 1200 New Jersey 425–227–1221. mail your comment, it will be Avenue, SE., Washington, DC 20590– considered as having been received by Issued in Renton, Washington, on March 0001. the Coast Guard when it is received at 24, 2011. (4) Hand Delivery: Same as mail the Docket Management Facility. We Ali Bahrami, address above, between 9 a.m. and recommend that you include your name Manager, Transport Airplane Directorate, 5 p.m., Monday through Friday, except and a mailing address, an e-mail Aircraft Certification Service. Federal holidays. The telephone number address, or a telephone number in the [FR Doc. 2011–8066 Filed 4–4–11; 8:45 am] is 202–366–9329. body of your document so that we can BILLING CODE 4910–13–P To avoid duplication, please use only contact you if we have questions one of these four methods. See the regarding your submission. ‘‘Public Participation and Request for To submit your comment online, go to Comments’’ portion of the http://www.regulations.gov, click on the SUPPLEMENTARY INFORMATION section ‘‘submit a comment’’ box, which will below for instructions on submitting then become highlighted in blue. In the comments. ‘‘Document Type’’ drop down menu

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select ‘‘Proposed Rule’’ and insert 70 Fixed bridge crossing Newport River contacted on marine band radio VHF– ‘‘USCG–2011–0184’’ in the ‘‘Keyword’’ at Morehead City, North Carolina. The FM channel 16 (156.8 MHz). box. Click ‘‘Search’’ then click on the contract provides for cleaning, painting, Small Entities balloon shape in the ‘‘Actions’’ column. and steel repair to begin on June 1, 2011 If you submit your comments by mail or and will be completed by July 31, 2011. Under the Regulatory Flexibility Act hand delivery, submit them in an The contractor requires the main (5 U.S.C. 601–612), we have considered unbound format, no larger than 81⁄2 by channel in the vicinity of the bridge to whether this proposed rule would have 11 inches, suitable for copying and remain closed during mobilization on a significant economic impact on a electronic filing. If you submit June 30, 2011 from 10 a.m. to 4 p.m. The substantial number of small entities. comments by mail and would like to Coast Guard will temporarily restrict The term ‘‘small entities’’ comprises know that they reached the Facility, access to this section of Newport River small businesses, not-for-profit please enclose a stamped, self-addressed during the mobilization of the bridge organizations that are independently postcard or envelope. We will consider maintenance equipment. owned and operated and are not dominant in their fields, and all comments and material received Discussion of Proposed Rule during the comment period and may governmental jurisdictions with change the rule based on your The temporary safety zone will populations of less than 50,000. comments. encompass the waters of the Newport The Coast Guard certifies under 5 River directly under, latitude 34°43′15″ U.S.C. 605(b) that this proposed rule Viewing Comments and Documents North, longitude 076°41′39″ West, and would not have a significant economic To view comments, as well as 100 yards on either side of the US impact on a substantial number of small documents mentioned in this preamble Highway 70 Fixed bridge. All vessels entities. as being available in the docket, go to are prohibited from transiting this This rule will affect the following http://www.regulations.gov, click on the section of the waterway while the safety entities, some of which may be small ‘‘read comments’’ box, which will then zone is in effect. Entry into the safety entities: the owners or operators of become highlighted in blue. In the zone will not be permitted except as recreational and fishing vessels ‘‘Keyword’’ box insert ‘‘USCG–2011– specifically authorized by the Captain of intending to transit the specified portion 0184’’ and click ‘‘Search.’’ Click the the Port or a designated representative. of Newport River from 10 a.m. to 4 p.m. ‘‘Open Docket Folder’’ in the ‘‘Actions’’ To seek permission to transit the area, on June 30, 2011. column. You may also visit the Docket mariners may contact Sector North This safety zone will not have a Management Facility in Room W12–140 Carolina at (252) 247–4570. This zone significant economic impact on a on the ground floor of the Department will be enforced from 10 a.m. to 4 p.m. substantial number of small entities for of Transportation West Building, 1200 on June 30, 2011. the following reasons. This rule will only be in effect for six hours from 10 New Jersey Avenue, SE., Washington, Regulatory Analyses DC 20590, between 9 a.m. and 5 p.m., a.m. to 4 p.m. Although the safety zone Monday through Friday, except Federal We developed this proposed rule after will apply to the section of the Newport holidays. We have an agreement with considering numerous statutes and River in the vicinity of the bridge, vessel the Department of Transportation to use executive orders related to rulemaking. traffic may use alternate waterways to the Docket Management Facility. Below we summarize our analyses transit safely around the safety zone. based on 13 of these statutes or Before the effective period, the Coast Privacy Act executive orders. Guard will issue maritime advisories widely available to the users of the Anyone can search the electronic Executive Order 12866 and Executive waterway. form of comments received into any of Order 13563 our dockets by the name of the If you think that your business, individual submitting the comment (or This proposed rule is not a significant organization, or governmental signing the comment, if submitted on regulatory action under section 3(f) of jurisdiction qualifies as a small entity behalf of an association, business, labor Executive Order 12866, Regulatory and that this rule would have a union, etc.). You may review a Privacy Planning and Review, as supplemented significant economic impact on it, Act notice regarding our public dockets by Executive Order 13563, and does not please submit a comment (see in the January 17, 2008, issue of the require an assessment of potential costs ADDRESSES) explaining why you think it Federal Register (73 FR 3316). and benefits under section 6(a)(3) of that qualifies and how and to what degree Order. The Office of Management and this rule would economically affect it. Public Meeting Budget has not reviewed it under that Assistance for Small Entities We do not now plan to hold a public Order. meeting. But you may submit a request Although this regulation will restrict Under section 213(a) of the Small for one using one of the four methods access to the area, the effect of this rule Business Regulatory Enforcement specified under ADDRESSES. Please will not be significant because: (i) The Fairness Act of 1996 (Pub. L. 104–121), explain why you believe a public safety zone will be in effect for a limited we want to assist small entities in meeting would be beneficial. If we time, from 10 a.m. to 4 p.m., on June 30, understanding this proposed rule so that determine that one would aid this 2011, (ii) the Coast Guard will give they can better evaluate its effects on rulemaking, we will hold one at a time advance notification via maritime them and participate in the rulemaking. and place announced by a later notice advisories so mariners can adjust their If the rule would affect your small in the Federal Register. plans accordingly, and (iii) although the business, organization, or governmental safety zone will apply to the section of jurisdiction and you have questions Basis and Purpose the Newport River in the immediate concerning its provisions or options for The State of North Carolina vicinity of the US Highway 70 Fixed compliance, please contact CWO3 Department of Transportation awarded a bridge, vessel traffic may use alternate Joseph Edge, Waterways Management contract to Astron General Contracting waterways to transit safely around the Division Chief, Sector North Carolina, at Company of Jacksonville, NC to perform safety zone. All Coast Guard vessels (252) 247–4525. The Coast Guard will bridge maintenance on the US Highway enforcing this regulated area can be not retaliate against small entities that

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question or complain about this Order 13175, Consultation and available in the docket where indicated proposed rule or any policy or action of Coordination with Indian Tribal under ADDRESSES. This proposed rule is the Coast Guard. Governments, because it would not have categorically excluded, under figure a substantial direct effect on one or 2–1, paragraph (34)(g), of this Collection of Information more Indian tribes, on the relationship instruction. This proposed rule involves This proposed rule would call for no between the Federal Government and the establishment of a temporary safety new collection of information under the Indian tribes, or on the distribution of zone to protect the public from bridge Paperwork Reduction Act of 1995 (44 power and responsibilities between the maintenance operations. We seek any U.S.C. 3501–3520). Federal Government and Indian tribes. comments or information that may lead Federalism Energy Effects to the discovery of a significant environmental impact from this A rule has implications for federalism We have analyzed this proposed rule proposed rule. under Executive Order 13132, under Executive Order 13211, Actions Federalism, if it has a substantial direct Concerning Regulations That List of Subjects in 33 CFR Part 165 effect on State or local governments and Significantly Affect Energy Supply, Harbors, Marine safety, Navigation would either preempt State law or Distribution, or Use. We have (water), Reporting and recordkeeping impose a substantial direct cost of determined that it is not a ‘‘significant requirements, Security measures, compliance on them. We have analyzed energy action’’ under that order because Waterways. this proposed rule under that Order and it is not a ‘‘significant regulatory action’’ For the reasons discussed in the have determined that it does not have under Executive Order 12866 and is not preamble, the Coast Guard proposes to implications for federalism. likely to have a significant adverse effect amend 33 CFR part 165 as follows: on the supply, distribution, or use of Unfunded Mandates Reform Act energy. The Administrator of the Office PART 165—REGULATED NAVIGATION The Unfunded Mandates Reform Act of Information and Regulatory Affairs AREAS AND LIMITED ACCESS AREAS of 1995 (2 U.S.C. 1531–1538) requires has not designated it as a significant Federal agencies to assess the effects of energy action. Therefore, it does not 1. The authority citation for part 165 their discretionary regulatory actions. In require a Statement of Energy Effects continues to read as follows: particular, the Act addresses actions under Executive Order 13211. Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. that may result in the expenditure by a Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Technical Standards State, local, or tribal government, in the 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. aggregate, or by the private sector of The National Technology Transfer 107–295, 116 Stat. 2064; Department of $100,000,000 (adjusted for inflation) or and Advancement Act (NTTAA) (15 Homeland Security Delegation No. 0170.1. more in any one year. Though this U.S.C. 272 note) directs agencies to use 2. Add temporary § 165.T05–0184 to proposed rule would not result in such voluntary consensus standards in their read as follows: an expenditure, we do discuss the regulatory activities unless the agency effects of this rule elsewhere in this provides Congress, through the Office of § 165.T05–0184 Safety Zone: Newport River, Morehead City, North Carolina. preamble. Management and Budget, with an explanation of why using these (a) Definitions. For the purposes of Taking of Private Property standards would be inconsistent with this section, Captain of the Port means This proposed rule would not cause a applicable law or otherwise impractical. the Commander, Sector North Carolina. taking of private property or otherwise Voluntary consensus standards are Representative means any Coast Guard have taking implications under technical standards (e.g., specifications commissioned, warrant, or petty officer Executive Order 12630, Governmental of materials, performance, design, or who has been authorized to act on the Actions and Interference with operation; test methods; sampling behalf of the Captain of the Port. Constitutionally Protected Property procedures; and related management (b) Location. The following area is a Rights. systems practices) that are developed or safety zone: This zone includes the adopted by voluntary consensus waters of Newport River directly under, Civil Justice Reform standards bodies. latitude 34°43′15″ North, longitude This proposed rule meets applicable This proposed rule does not use 076°41′39″ West, and 100 yards on standards in sections 3(a) and 3(b)(2) of technical standards. Therefore, we did either side of the U.S. Highway 70 Fixed Executive Order 12988, Civil Justice not consider the use of voluntary bridge at Morehead City, North Reform, to minimize litigation, consensus standards. Carolina. eliminate ambiguity, and reduce (c) Regulations. (1) The general Environment burden. regulations contained in § 165.23 of this We have analyzed this proposed rule part apply to the area described in Protection of Children under Department of Homeland paragraph (b) of this section. We have analyzed this proposed rule Security Management Directive 023–01 (2) Persons or vessels requiring entry under Executive Order 13045, and Commandant Instruction into or passage through any portion of Protection of Children from M16475.lD, which guide the Coast the safety zone must first request Environmental Health Risks and Safety Guard in complying with the National authorization from the Captain of the Risks. This rule is not an economically Environmental Policy Act of 1969 Port, or a designated representative, significant rule and would not create an (NEPA) (42 U.S.C. 4321–4370f), and unless the Captain of the Port environmental risk to health or risk to have made a preliminary determination previously announced via Marine Safety safety that might disproportionately that this action is one of a category of Radio Broadcast on VHF Marine Band affect children. actions that do not individually or Radio channel 22 (157.1 MHz) that this cumulatively have a significant effect on regulation will not be enforced in that Indian Tribal Governments the human environment. A preliminary portion of the safety zone. The Captain This proposed rule does not have environmental analysis checklist of the Port can be contacted at telephone tribal implications under Executive supporting this determination is number (252) 247–4570 or by radio on

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VHF Marine Band Radio, channels 13 To avoid duplication, please use only If you submit your comments by mail or and 16. one of these four methods. See the hand delivery, submit them in an (d) Enforcement. The U.S. Coast ‘‘Public Participation and Request for unbound format, no larger than 81⁄2 by Guard may be assisted in the patrol and Comments’’ portion of the 11 inches, suitable for copying and enforcement of the zone by Federal, SUPPLEMENTARY INFORMATION section electronic filing. If you submit State, and local agencies. below for instructions on submitting comments by mail and would like to (e) Enforcement period. This section comments. know that they reached the Facility, will be enforced from 10 a.m. to 4 p.m. FOR FURTHER INFORMATION CONTACT: If please enclose a stamped, self-addressed on June 30, 2011 unless cancelled you have questions on this proposed postcard or envelope. We will consider earlier by the Captain of the Port. rule, call or e-mail BOSN3 Joseph M. all comments and material received Dated: March 23, 2011. Edge, Prevention Department, Coast during the comment period and may A. Popiel, Guard Sector North Carolina; telephone change the rule based on your comments. Captain, U.S. Coast Guard, Captain of the 252–247–4525, e-mail Port North Carolina. [email protected]. If you have Viewing Comments and Documents [FR Doc. 2011–8005 Filed 4–4–11; 8:45 am] questions on viewing or submitting To view comments, as well as BILLING CODE 9110–04–P material to the docket, call Renee V. documents mentioned in this preamble Wright, Program Manager, Docket as being available in the docket, go to Operations, telephone 202–366–9826. http://www.regulations.gov, click on the DEPARTMENT OF HOMELAND SUPPLEMENTARY INFORMATION: ‘‘read comments’’ box, which will then SECURITY Public Participation and Request for become highlighted in blue. In the Coast Guard Comments ‘‘Keyword’’ box insert ‘‘USCG–2011– 0168’’ and click ‘‘Search.’’ Click the We encourage you to participate in 33 CFR Part 165 ‘‘Open Docket Folder’’ in the ‘‘Actions’’ this rulemaking by submitting column. You may also visit the Docket comments and related materials. All [Docket No. USCG–2011–0168] Management Facility in Room W12–140 comments received will be posted on the ground floor of the Department RIN 1625–AA00 without change to http:// of Transportation West Building, 1200 www.regulations.gov and will include Safety Zone; Big Rock Blue Marlin Air New Jersey Avenue, SE., Washington, any personal information you have DC 20590, between 9 a.m. and 5 p.m., Show; Bogue Sound, Morehead City, provided. NC Monday through Friday, except Federal Submitting Comments holidays. We have an agreement with AGENCY: Coast Guard, DHS. If you submit a comment, please the Department of Transportation to use ACTION: Notice of proposed rulemaking. include the docket number for this the Docket Management Facility. rulemaking (USCG–2011–0168), Privacy Act SUMMARY: The Coast Guard proposes to indicate the specific section of this Anyone can search the electronic establish a temporary Safety Zone for document to which each comment ‘‘ ’’ form of comments received into any of the Big Rock Blue Marlin Air Show , an applies, and provide a reason for each aerial demonstration to be held over the our dockets by the name of the suggestion or recommendation. You individual submitting the comment (or waters of Bogue Sound, adjacent to may submit your comments and Morehead City, North Carolina. This signing the comment, if submitted on material online (via http:// behalf of an association, business, labor Safety Zone is necessary to provide for www.regulations.gov) or by fax, mail, or the safety of life on navigable waters union, etc.). You may review a Privacy hand delivery, but please use only one Act notice regarding our public dockets during the event. This action is of these means. If you submit a intended to restrict vessel traffic on the in the January 17, 2008, issue of the comment online via http:// Federal Register (73 FR 3316). Intracoastal Waterway from 7 p.m. until www.regulations.gov, it will be 8 p.m. considered received by the Coast Guard Public Meeting DATES: Comments and related material when you successfully transmit the We do not now plan to hold a public must be received by the Coast Guard on comment. If you fax, hand deliver, or meeting. But you may submit a request or before May 5, 2011. mail your comment, it will be for one using one of the four methods ADDRESSES: You may submit comments considered as having been received by specified under ADDRESSES. Please identified by docket number USCG– the Coast Guard when it is received at explain why you believe a public 2011–0168 using any one of the the Docket Management Facility. We meeting would be beneficial. If we following methods: recommend that you include your name determine that one would aid this (1) Federal eRulemaking Portal: and a mailing address, an e-mail rulemaking, we will hold one at a time http://www.regulations.gov. address, or a telephone number in the and place announced by a later notice (2) Fax: 202–493–2251. body of your document so that we can in the Federal Register. (3) Mail: Docket Management Facility contact you if we have questions (M–30), U.S. Department of regarding your submission. Basis and Purpose Transportation, West Building Ground To submit your comment online, go to On June 11, 2011 from 7 p.m. to Floor, Room W12–140, 1200 New Jersey http://www.regulations.gov, click on the 8 p.m., the Big Rock Blue Marlin Avenue, SE., Washington, DC 20590– ‘‘submit a comment’’ box, which will Tournament will sponsor the ‘‘Big Rock 0001. then become highlighted in blue. In the Blue Marlin Air Show’’ consisting of an (4) Hand delivery: Same as mail ‘‘Document Type’’ drop down menu aerial demonstration to take place address above, between 9 a.m. and select ‘‘Proposed Rule’’ and insert directly above the waters of Bogue 5 p.m., Monday through Friday, except ‘‘USCG–2011–0168’’ in the ‘‘Keyword’’ Sounds including the waters of the Federal holidays. The telephone number box. Click ‘‘Search’’ then click on the Intracoastal Waterway adjacent to is 202–366–9329. balloon shape in the ‘‘Actions’’ column. Morehead City, North Carolina. To

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provide for the safety of the spectators The Coast Guard certifies under 5 Unfunded Mandates Reform Act and other transiting vessels, the Coast U.S.C. 605(b) that this proposed rule The Unfunded Mandates Reform Act Guard will temporarily restrict vessel would not have a significant economic of 1995 (2 U.S.C. 1531–1538) requires traffic in the event area during this impact on a substantial number of small Federal agencies to assess the effects of event. entities. This proposed rule would affect their discretionary regulatory actions. In the following entities, some of which Discussion of Proposed Rule particular, the Act addresses actions might be small entities: The owners of that may result in the expenditure by a The Coast Guard is proposing to operators of vessels intending to transit State, local, or tribal government, in the establish a temporary safety zone that this section of the Bogue Sound from aggregate, or by the private sector of will restrict vessel movement for one 7 p.m. to 8 p.m. on June 11, 2011. This $100,000,000 (adjusted for inflation) or hour prior to the event on the specified safety zone would not have significant more in any one year. Though this waters of Bogue Sound, Morehead City, economic impact on a substantial proposed rule would not result in such NC. During the enforcement period, number of small entities for the an expenditure, we do discuss the while the Aerial Event is taking place, following reasons. This safety zone effects of this rule elsewhere in this no vessel will be allowed to transit the would be activated, and this subject to preamble. waterway unless the vessel is given enforcement, for only 1 hour in the permission from the Patrol Commander evening. Vessel traffic will be able to Taking of Private Property to transit. This safety zone will be transit the area immediately prior to and This proposed rule would not cause a enforced from 7 p.m. to 8 p.m. on June immediately following the enforcement taking of private property or otherwise 11, 2011. period. Before the activation of the zone, have taking implications under Regulatory Analyses we would issue maritime advisories Executive Order 12630, Governmental widely to users of the waterway. Actions and Interference with We developed this proposed rule after If you think that your business, Constitutionally Protected Property considering numerous statutes and organization, or governmental Rights. executive orders related to rulemaking. jurisdiction qualifies as a small entity Below we summarize our analyses and that this rule would have a Civil Justice Reform based on 13 of these statutes or significant economic impact on it, This proposed rule meets applicable executive orders. please submit a comment (see standards in sections 3(a) and 3(b)(2) of Executive Order 12866 and Executive ADDRESSES) explaining why you think it Executive Order 12988, Civil Justice Order 13563 qualifies and how and to what degree Reform, to minimize litigation, this rule would economically affect it. eliminate ambiguity, and reduce This proposed rule is not a significant burden. regulatory action under section 3(f) of Assistance for Small Entities Executive Order 12866, Regulatory Under section 213(a) of the Small Protection of Children Planning and Review, as supplemented Business Regulatory Enforcement We have analyzed this proposed rule by Executive Order 13563, and does not Fairness Act of 1996 (Pub. L. 104–121), under Executive Order 13045, require an assessment of potential costs we want to assist small entities in Protection of Children from and benefits under section 6(a)(3) of that understanding this proposed rule so that Environmental Health Risks and Safety Order. The Office of Management and they can better evaluate its effects on Risks. This rule is not an economically Budget has not reviewed it under that them and participate in the rulemaking. significant rule and would not create an Order. Although this regulation If the rule would affect your small environmental risk to health or risk to prevents traffic from transiting waters of business, organization, or governmental safety that might disproportionately Bogue Sound during the event, the jurisdiction and you have questions affect children. effect of this regulation will not be concerning its provisions or options for Indian Tribal Governments significant due to the limited duration compliance, please contact BOSN3 that the regulated area will be in effect. Joseph Edge, Prevention Department, This proposed rule does not have Extensive advance notification will be Sector North Carolina, 252–247–4525. tribal implications under Executive made to the maritime community via The Coast Guard will not retaliate Order 13175, Consultation and marine information broadcast and local against small entities that question or Coordination with Indian Tribal area newspapers so mariners can adjust complain about this proposed rule or Governments, because it would not have their plans accordingly. Vessel traffic any policy or action of the Coast Guard. a substantial direct effect on one or will be able to transit the regulated area more Indian tribes, on the relationship before and after the event, when the Collection of Information between the Federal Government and Coast Guard Patrol Commander deems it This proposed rule would call for no Indian tribes, or on the distribution of is safe to do so. new collection of information under the power and responsibilities between the Paperwork Reduction Act of 1995 (44 Federal Government and Indian tribes. Small Entities U.S.C. 3501–3520). Under the Regulatory Flexibility Act Energy Effects (5 U.S.C. 601–612), we have considered Federalism We have analyzed this proposed rule whether this proposed rule would have A rule has implications for federalism under Executive Order 13211, Actions a significant economic impact on a under Executive Order 13132, Concerning Regulations That substantial number of small entities. Federalism, if it has a substantial direct Significantly Affect Energy Supply, The term ‘‘small entities’’ comprises effect on State or local governments and Distribution, or Use. We have small businesses, not-for-profit would either preempt State law or determined that it is not a ‘‘significant organizations that are independently impose a substantial direct cost of energy action’’ under that order because owned and operated and are not compliance on them. We have analyzed it is not a ‘‘significant regulatory action’’ dominant in their fields, and this proposed rule under that Order and under Executive Order 12866 and is not governmental jurisdictions with have determined that it does not have likely to have a significant adverse effect populations of less than 50,000. implications for federalism. on the supply, distribution, or use of

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energy. The Administrator of the Office PART 165—REGULATED NAVIGATION (d) Enforcement Period. This section of Information and Regulatory Affairs AREAS AND LIMITED ACCESS AREAS will be enforced from 7 p.m. until 8 has not designated it as a significant p.m. on June 11, 2011. 1. The authority citation for part 165 energy action. Therefore, it does not Dated: March 23, 2011. require a Statement of Energy Effects continues to read as follows: Anthony Popiel, under Executive Order 13211. Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Captain, U.S. Coast Guard, Captain of the Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Technical Standards Port North Carolina. 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. The National Technology Transfer 107–295, 116 Stat. 2064; Department of [FR Doc. 2011–7994 Filed 4–4–11; 8:45 am] and Advancement Act (NTTAA) (15 Homeland Security Delegation No. 0170.1. BILLING CODE 9110–04–P U.S.C. 272 note) directs agencies to use 2. Add a temporary § 165–T05–0168 voluntary consensus standards in their to read as follows: regulatory activities unless the agency DEPARTMENT OF HOMELAND provides Congress, through the Office of 165.T05–0168 Safety Zone: Big Rock Blue SECURITY Management and Budget, with an Marlin Air Show, Bogue Sound, Morehead Coast Guard explanation of why using these City, NC. standards would be inconsistent with (a) Regulated Area. The following area 33 CFR Part 165 applicable law or otherwise impractical. is a safety zone: Specified waters of the Voluntary consensus standards are Captain of the Port Sector North [Docket No. USCG–2010–0803] technical standards (e.g., specifications Carolina, as defined in 33 CFR 3.25–20, RIN 1625–AA87 of materials, performance, design, or in the navigable waters of Bogue Sound operation; test methods; sampling within an area bound by a line drawn Security Zones; Sector Southeastern procedures; and related management from the following points: Latitude New England Captain of the Port Zone systems practices) that are developed or 34°43′09.9″ N, longitude 076°45′54.9″ adopted by voluntary consensus W; thence east to latitude 34°43′09.75″ AGENCY: Coast Guard, DHS. standards bodies. N, longitude 076°44′34.16″ W; thence ACTION: Notice of proposed rulemaking. This proposed rule does not use south to latitude 34°42′52.64″ N, technical standards. Therefore, we did longitude 076°44′32.55″ W; thence west SUMMARY: The Coast Guard proposes a not consider the use of voluntary to latitude 34°42′50.7″ N, longitude permanent regulation that would create consensus standards. 076°45′48.5″ W; thence to the point of security zones around cruise ships in Environment origin, located approximately 400 yards the Southeastern New England Captain south of the shoreline of Morehead City. of the Port (COTP) Zone. These security We have analyzed this proposed rule (b) Definition: For the purposes of this zones are nearly identical to security under Department of Homeland zones currently put in place by a Security Management Directive 023–01 section, Captain of the Port means the Commander, Sector North Carolina. temporary final rule. The proposed rule and Commandant Instruction would create a 100-yard radius security M16475.lD, which guide the Coast Representative means any U.S. Coast Guard commissioned, warrant, or petty zone encompassing all navigable waters Guard in complying with the National around any cruise ship anchored or Environmental Policy Act of 1969 officer who has been authorized by the Captain of the Port, Sector North moored and 200-yard radius security (NEPA) (42 U.S.C. 4321–4370f), and zone encompassing all navigable waters have made a preliminary determination Carolina to act on his behalf. (c) Regulations: (1) In accordance with around any cruise ship underway that is that this action is one of a category of being escorted by Coast Guard or law actions that do not individually or the general regulations in 165.23 of this part, entry into this zone is prohibited enforcement agencies assisting the Coast cumulatively have a significant effect on Guard. These zones are needed to the human environment. A preliminary unless authorized by the Captain of the Port, Sector North Carolina or his protect cruise ships and the public from environmental analysis checklist destruction, loss, or injury from supporting this determination is designated representatives. (2) The operator of any vessel in the sabotage, subversive acts, or other available in the docket where indicated malicious acts of a similar nature. under ADDRESSES. This proposed rule is immediate vicinity of this safety zone shall: (i) Stop the vessel immediately Persons or vessels may not enter these categorically excluded, under figure 2– security zones without permission of 1, paragraph (34)(g), of this instruction. upon being directed to do so by any commissioned, warrant or petty officer the COTP or a COTP designated The special local regulation is necessary representative. to provide for the safety of the general on shore or on board a vessel that is public and event participants from displaying a U.S. Coast Guard Ensign. DATES: Comments and related material potential hazards associated with (ii) Proceed as directed by any must be received by the Coast Guard on vessels present on or transiting upon commissioned, warrant or petty officer or before May 5, 2011. Requests for this waterway. We seek any comments on shore or on board a vessel that is public meetings must be received by the or information that may lead to the displaying a U.S. Coast Guard Ensign. Coast Guard on or before April 12, 2011. discovery of a significant environmental (3) The Captain of the Port, Sector ADDRESSES: You may submit comments impact from this proposed rule. North Carolina can be reached through identified by docket number USCG– the Sector Duty Officer at Sector North 2010–0803 using any one of the List of Subjects in 33 CFR Part 165 Carolina in Atlantic Beach, North following methods: Harbors, Marine safety, Navigation Carolina at telephone number (252) (1) Federal eRulemaking Portal: (water), Reporting and recordkeeping 247–4570. http://www.regulations.gov. requirements, Security measures, (4) The Coast Guard Representatives (2) Fax: 202–493–2251. Waterways. enforcing the safety zone can be (3) Mail: Docket Management Facility For the reasons discussed in the contacted on VHF–FM marine band (M–30), U.S. Department of preamble, the Coast Guard proposes to radio channel 13 (165.65 MHz) and Transportation, West Building Ground amend 33 CFR part 165 as follows: channel 16 (156.8 MHz). Floor, Room W12–140, 1200 New Jersey

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Avenue, SE., Washington, DC 20590– then become highlighted in blue. In the CFR 1.05–1, 6.04–1, 6.04–6, 160.5; 0001. ‘‘Document Type’’ drop down menu Department of Homeland Security (4) Hand delivery: Same as mail select ‘‘Proposed Rule’’ and insert Delegation No. 0170.1, which address above, between 9 a.m. and 5 ‘‘USCG–2010–0803’’ in the ‘‘Keyword’’ collectively authorizes the Coast Guard p.m., Monday through Friday, except box. Click ‘‘Search’’ then click on the to define Security Zones. The Coast Federal holidays. The telephone number balloon shape in the ‘‘Actions’’ column. Guard’s maritime security mission is 202–366–9329. If you submit your comments by mail or includes the requirement to protect To avoid duplication, please use only hand delivery, submit them in an cruise ships from destruction, loss, or one of these methods. See the ‘‘Public unbound format, no larger than 81⁄2 by injury from sabotage, subversive acts, or Participation and Request for 11 inches, suitable for copying and other malicious acts of a similar nature. Comments’’ portion of the electronic filing. If you submit Protecting these vessels from potential SUPPLEMENTARY INFORMATION section comments by mail and would like to threats or harm while transiting, or below. know that they reached the Facility, while moored, at any berth, or at anchor in the waters of Southeastern New FOR FURTHER INFORMATION CONTACT: If please enclose a stamped, self-addressed England COTP Zone is necessary to you have questions on this proposed postcard or envelope. We will consider safeguard cruise ships and the general rule, call Mr. Edward G. LeBlanc, Chief, all comments and material received public. The Coast Guard proposes a Waterways Management Division, Coast during the comment period and may permanent regulation that would create Guard Sector Southeastern New change the rule based on your security zones for specified navigable England, at 401–435–2351, or comments. waters around certain cruise ships in [email protected]. If you Viewing Comments and Documents the Southeastern New England Captain have questions on viewing or submitting To view comments, as well as of the Port Zone. On September 22, material to the docket, call Renee V. documents mentioned in this preamble 2010, the COTP issued a temporary final Wright, Program Manager, Docket as being available in the docket, go to rule that created nearly identical Operations, telephone 202–366–9826. http://www.regulations.gov, click on the security zones in 33 CFR 165.T01–0864. SUPPLEMENTARY INFORMATION: ‘‘read comments’’ box, which will then See Security Zone: Passenger Vessels, Public Participation and Request for become highlighted in blue. In the Southeastern New England Captain of Comments ‘‘Keyword’’ box insert ‘‘USCG–2010– the Port Zone, 75 FR 63714, October 18, 0803’’ and click ‘‘Search.’’ Click the 2010. In a rule published March 31, We encourage you to participate in ‘‘Open Docket Folder’’ in the ‘‘Actions’’ 2011 (FR Doc. 2011–7640), temporary this rulemaking by submitting column. You may also visit the Docket § 165.T01–0864 was extended in effect comments and related materials. All Management Facility in Room W12–140 through October 1, 2011. comments received will be posted, on the ground floor of the Department Discussion of Proposed Rule without change, to http:// of Transportation West Building, 1200 www.regulations.gov and will include New Jersey Avenue, SE., Washington, The Coast Guard proposes to establish any personal information you have DC 20590, between 9 a.m. and 5 p.m., 100-yard radius security zones provided. Monday through Friday, except Federal encompassing all navigable waters Submitting Comments holidays. We have an agreement with around cruise ships that are moored, at any berth or at anchor within the If you submit a comment, please the Department of Transportation to use the Docket Management Facility. Southeastern New England COTP Zone. include the docket number for this This notice of proposed rulemaking also rulemaking (USCG–2010–0803), Privacy Act proposes to establish 200-yard radius indicate the specific section of this Anyone can search the electronic moving security zones encompassing all document to which each comment form of comments received into any of navigable waters around escorted cruise applies, and provide a reason for each our dockets by the name of the ships while underway in the navigable suggestion or recommendation. You individual submitting the comment (or waters within the Southeastern New may submit your comments and signing the comment, if submitted on England COTP zone. We propose to material online (via http:// behalf of an association, business, labor define a ‘‘cruise ship’’ as a passenger www.regulations.gov), or by fax, mail or union, etc.). You may review a Privacy vessel (as defined in 46 U.S.C. 2101(22)) hand delivery, but please use only one Act notice regarding our public dockets that is authorized to carry more than of these means. If you submit a in the January 17, 2008 issue of the 400 passengers for hire and is 200 feet comment online via http:// Federal Register (73 FR 3316). or more in length. This definition of www.regulations.gov, it will be ‘‘cruise ship’’ will include ferries (as considered received by the Coast Guard Public Meeting defined in 46 CFR 2.10–25) that are when you successfully transmit the We do not now plan to hold a public authorized to carry more than 400 comment. If you fax, hand deliver, or meeting. But you may submit a request passengers for hire and are 200 feet or mail your comment, it will be for one using one of the four methods more in length. This proposed zone considered as having been received by specified under ADDRESSES. Please would be activated and subject to the Coast Guard when it is received at explain why you believe a public enforcement at all times a cruise ship is the Docket Management Facility. We meeting would be beneficial. If we underway, anchored or moored within recommend that you include your name determine that one would aid this the navigable waters of the United and a mailing address, an e-mail rulemaking, we will hold one at a time States in the Southeastern New England address, or a phone number in the body and place announced by a later notice COTP Zone. of your document so that we can contact in the Federal Register. you if we have questions regarding your Regulatory Analyses submission. Basis and Purpose We developed this proposed rule after To submit your comment online, go to The legal basis for this rule is 33 considering numerous statutes and http://www.regulations.gov, click on the U.S.C. 1226, 1231; 46 U.S.C. Chapter executive orders related to rulemaking. ‘‘submit a comment’’ box, which will 701, 3306, 3703; 50 U.S.C. 191, 195; 33 Below we summarize our analyses

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based on 13 of these statutes or from the Coast Guard COTP, Taking of Private Property executive orders. Southeastern New England. This proposed rule would not cause a Regulatory Planning and Review If you think that your business, taking of private property or otherwise organization, or governmental have taking implications under This proposed rule would not be a jurisdiction qualifies as a small entity Executive Order 12630, Governmental significant regulatory action under and that this rule would have a Actions and Interference with section 3(f) of Executive Order 12866, Constitutionally Protected Property Regulatory Planning and Review, and significant economic impact on it, Rights. would not require an assessment of please submit a comment (see potential costs and benefits under ADDRESSES) explaining why you think it Civil Justice Reform section 6(a)(3) of that Order. The Office qualifies and how and to what degree this rule would economically affect it. This proposed rule meets applicable of Management and Budget has not standards in sections 3(a) and 3(b)(2) of reviewed it under that Order. These Assistance for Small Entities Executive Order 12988, Civil Justice proposed security zones would be Reform, to minimize litigation, Under section 213(a) of the Small activated and enforced only when a eliminate ambiguity, and reduce Business Regulatory Enforcement cruise ship is transiting, anchored, or burden. moored within the Southeastern New Fairness Act of 1996 (Pub. L. 104–121), England COTP zone. Persons and/or we want to assist small entities in Protection of Children vessels may enter a security zone if they understanding this proposed rule so that We have analyzed this proposed rule obtain permission from the Coast Guard they can better evaluate its effects on under Executive Order 13045, COTP, Southeastern New England. them and participate in the rulemaking. Protection of Children from If the rule would affect your small Small Entities Environmental Health Risks and Safety business, organization, or governmental Risks. This proposed rule is not an Under the Regulatory Flexibility Act jurisdiction and you have questions economically significant rule and would (5 U.S.C. 601–612), we have considered concerning its provisions or options for not create an environmental risk to whether this proposed rule would have compliance, please contact Mr. Edward health or risk to safety that might a significant economic impact on a G. LeBlanc, Chief, Waterways disproportionately affect children. substantial number of small entities. Management Division, Coast Guard The term ‘‘small entities’’ comprises Sector Southeastern New England, at Indian Tribal Governments small businesses, not-for-profit 401–435–2351, or This proposed rule does not have organizations that are independently [email protected]. The Coast tribal implications under Executive owned and operated and are not Guard will not retaliate against small Order 13175, Consultation and dominant in their fields, and entities that question or complain about Coordination with Indian Tribal governmental jurisdictions with this proposed rule or any policy or Governments, because it would not have populations of less than 50,000. action of the Coast Guard. a substantial direct effect on one or The Coast Guard certifies under 5 Collection of Information more Indian tribes, on the relationship U.S.C. 605(b) that this proposed rule between the Federal Government and would not have a significant economic This proposed rule would call for no Indian tribes, or on the distribution of impact on a substantial number of small new collection of information under the power and responsibilities between the entities. These proposed security zones Paperwork Reduction Act of 1995 (44 Federal Government and Indian tribes. would be enforced only when a vessel U.S.C. 3501–3520). is transiting within the Southeastern Energy Effects New England COTP zone (a routine Federalism We have analyzed this proposed rule transit is usually two hours or less), and under Executive Order 13211, Actions only when enforced by Coast Guard law A rule has implications for federalism Concerning Regulations That enforcement personnel. Persons and/or under Executive Order 13132, Significantly Affect Energy Supply, vessels with may enter a security zone Federalism, if it has a substantial direct Distribution, or Use. We have if they obtain permission from the Coast effect on State or local governments and determined that it is not a ‘‘significant Guard COTP, Southeastern New would either preempt State law or energy action’’ under that order because England. impose a substantial direct cost of it is not a ‘‘significant regulatory action’’ This proposed rule may affect the compliance on them. We have analyzed under Executive Order 12866 and is not following entities, some of which might this proposed rule under that Order and likely to have a significant adverse effect be small entities: The owners or have determined that it does not have on the supply, distribution, or use of operators of vessels intending to operate implications for federalism. energy. The Administrator of the Office or transit within the security zones Unfunded Mandates Reform Act of Information and Regulatory Affairs when a cruise ship is transiting, has not designated it as a significant anchored or moored. The Unfunded Mandates Reform Act energy action. Therefore, it does not These proposed security zones would of 1995 (2 U.S.C. 1531–1538) requires require a Statement of Energy Effects not have a significant economic impact Federal agencies to assess the effects of under Executive Order 13211. on a substantial number of small entities their discretionary regulatory actions. In for the following reasons. These particular, the Act addresses actions Technical Standards proposed security zones are temporary, that may result in the expenditure by a The National Technology Transfer and would be enforced only either when State, local, or tribal government, in the and Advancement Act (NTTAA) (15 a vessel is transiting within the aggregate, or by the private sector of U.S.C. 272 note) directs agencies to use Southeastern New England COTP zone $100,000,000 (adjusted for inflation) or voluntary consensus standards in their (a routine transit is usually two hours or more in any one year. Though this regulatory activities unless the agency less) or anchored or moored in the Zone. proposed rule would not result in such provides Congress, through the Office of Persons and/or vessels may enter a expenditure, we do discuss the effects of Management and Budget, with an security zone if they obtain permission this rule elsewhere in this preamble. explanation of why using these

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standards would be inconsistent with within the Southeastern New England (3) No person may swim upon or applicable law or otherwise impractical. Captain of the Port (COTP) Zone, below the surface of the water within Voluntary consensus standards are extending from the surface to the sea the boundaries of these security zones technical standards (e.g., specifications floor: unless previously authorized by the of materials, performance, design, or (1) Within a 200-yard radius of any COTP or his designated representative. operation; test methods; sampling cruise ship that is underway and is (4) Upon being hailed by a U.S. Coast procedures; and related management under escort of U.S. Coast Guard law Guard vessel or the designated systems practices) that are developed or enforcement personnel or designated representative, by siren, radio, flashing adopted by voluntary consensus representative, or light or other means, the operator of the standards bodies. (2) Within a 100-yard radius of any vessel shall proceed as directed. This proposed rule does not use cruise ship that is anchored, at any (5) Vessel operators desiring to enter technical standards. Therefore, we did berth or moored. or operate within the security zone shall not consider the use of voluntary (b) Definitions. For the purposes of contact the COTP or the designated consensus standards. this section— representative via VHF channel 16 or Environment ‘‘Cruise ship’’ means a passenger 508–457–3211 (Sector Southeastern vessel as defined in 46 U.S.C. 2101(22), New England command center) to We have analyzed this proposed rule that is authorized to carry more than obtain permission to do so. in accordance with Department of 400 passengers and is 200 or more feet Homeland Security Management Dated: March 23, 2011. in length. A cruise ship under this Directive 023–01 and Commandant V.B. Gifford, Jr., section will also include ferries as Instruction M16475.lD, which guide the Captain, U.S. Coast Guard, Captain of the defined in 46 CFR 2.10–25 that are Coast Guard in complying with the Port Southeastern New England. authorized to carry more than 400 National Environmental Policy Act of [FR Doc. 2011–8003 Filed 4–4–11; 8:45 am] passengers and are 200 feet or more in 1969 (NEPA) (42 U.S.C. 4321–4370f) BILLING CODE 9110–04–P and have made a preliminary length. determination that this action is one of ‘‘Designated representative’’ means any Coast Guard commissioned, a category of actions which the Coast DEPARTMENT OF HEALTH AND warrant, or petty officer who has been Guard concluded do not normally have HUMAN SERVICES individual or cumulative significant designated by the COTP to act on the effects on the human environment. COTP’s behalf. The designated Administration for Children and Since the proposed action involves representative may be on a Coast Guard Families establishment of security zones, the vessel, or onboard federal, state, or a applicable categorical exclusion is local agency vessel that is authorized to 45 CFR Parts 1355, 1356 and 1357 found in Figure 2–1, paragraph 34(g) of act in support of the Coast Guard. the Commandant Instruction. An ‘‘Southeastern New England COTP Federal Monitoring of Child and Family environmental analysis checklist Zone’’ is as defined in 33 CFR 3.05–20. Service Programs; Request for Public supporting this preliminary (c) Enforcement. The security zones Comment and Consultation Meetings determination is available in the docket described in this section will be AGENCY: Department of Health and where indicated under ADDRESSES. We activated and enforced upon entry of Human Services (HHS), Administration seek any comments or information that any cruise ship into the navigable for Children and Families (ACF), may lead to the discovery of a waters of the United States (see 33 CFR Administration on Children, Youth and significant environmental impact from 2.36(a) to include the 12 NM territorial Families (ACYF), Children’s Bureau this proposed rule. sea) in the Southeastern New England COTP zone. This zone will remain (CB) List of Subjects in 33 CFR Part 165 activated at all times while a cruise ship ACTION: Request for public comment and Harbors, Marine safety, Navigation is within the navigable waters of the consultation meetings. (water), Reporting and recordkeeping United States in the Sector Southeastern requirements, Security measures, New England COTP Zone. In addition, SUMMARY: The Children’s Bureau is Waterways. the Coast Guard may broadcast the area interested in improving the process by which we review title IV–B and IV–E For the reasons discussed in the designated as a security zone for the plan requirements. CB currently reviews preamble, the Coast Guard proposes to duration of the enforcement period via a State’s compliance through Child and amend 33 CFR part 165 as follows: Broadcast Notice to Mariners. (d) Regulations. (1) In accordance Family Service Reviews (CFSRs). PART 165—REGULATED NAVIGATION with the general regulations in 33 CFR Following two rounds of CFSRs in every AREAS AND LIMITED ACCESS AREAS part 165, subpart D, no person or vessel State and the passage of several may enter or move within the security amendments to Federal child welfare 1. The authority citation for part 165 laws since the CFSRs began, we believe continues to read as follows: zones created by this section unless granted permission to do so by the it is time to reassess how CB reviews Authority: 33 U.S.C. 1231; 46 U.S.C. COTP Southeastern New England or the title IV–B and IV–E programs through Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; designated representative. the CFSR and identify enhancements 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; (2) All persons and vessels granted and system improvements we could Pub. L. 107–295, 116 Stat. 2064; Department make. of Homeland Security Delegation No. 0170.1. permission to enter a security zone must comply with the instructions of the DATES: Written comments must be 2. Add § 165.123 to read as follows: COTP or the designated representative. submitted to the office listed in the § 165.123 Cruise Ships, Sector Emergency response vessels are ADDRESSES section below on or before Southeastern New England Captain of the authorized to move within the zone, but May 20, 2011. Please see Port (COTP) Zone. must abide by the restrictions imposed SUPPLEMENTARY INFORMATION for (a) Location. The following areas are by the COTP or the designated additional details on consultation security zones: All navigable waters representative. meetings.

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ADDRESSES: Interested persons may what is actually happening to children regulations are in effect otherwise, submit written comments by any of the and families as they are engaged in Indian Tribes operating title IV–E following methods: child welfare services; and (3) assist programs of their own are not subject to • Federal eRulemaking Portal: http:// States to enhance their capacity to help CFSRs. However, Indian Tribes have www.regulations.gov. Follow the children and families achieve positive participated in CFSRs in the past and instructions for submitting comments. outcomes. CB conducts the reviews in Indian children are part of the CFSRs. • E-mail: [email protected]. partnership with State child welfare Therefore, we are interested at this time Please include ‘‘Comments on CFSR agency staff and other stakeholders in gaining their insight into how the Federal Register Notice’’ in the subject involved in the provision of child process could be improved. line of the message. welfare services. We have structured the • Mail or Courier Delivery: Jan reviews to help States identify strengths Questions Rothstein, Division of Policy, Children’s as well as areas needing improvement Please identify the question to which Bureau, Administration on Children, within their agencies and programs. you are responding. If you have Youth and Families, Administration for Each CFSR is a two-stage process additional comments, please identify Children and Families, 1250 Maryland consisting of a Statewide Assessment them by citing to the appropriate section Avenue, SW., 8th Floor, Washington, and an onsite review of child and family of the regulations or review process, if DC 20024 service outcomes and program systems. appropriate: Instructions: If you choose to use an For the Statewide Assessment, CB 1. How could ACF best promote and express, overnight, or other special prepares and transmits data profiles that measure continuous quality delivery method, ensure that delivery contain aggregate data on the State’s improvement in child welfare outcomes may be made at the address listed under foster care and in-home service and the effective functioning of systems the ADDRESSES section. We urge populations. The data profiles allow that promote positive outcomes for interested parties to submit comments each State to compare certain safety and children and families? electronically to ensure that they are permanency data indicators with 2. To what extent should data or received in a timely manner. All national standards determined by CB. measures from national child welfare comments received will be posted The on-site review includes case record databases (e.g., the Adoption and Foster without change to http:// reviews, interviews with children and Care Analysis and Reporting System, www.regulations.gov. This will include families engaged in services and the National Child Abuse and Neglect any personal information provided. interviews with other stakeholders. Data System) be used in a Federal Comments provided during a meeting, States determined not to have achieved monitoring process and what measures or in writing, in response to this Federal substantial conformity in all the areas are important for State/Tribal/local Register notice will receive equal assessed are required to develop and accountability? consideration by ACF. implement Program Improvement Plans 3. What role should the child welfare (PIPs) within two years addressing the FOR FURTHER INFORMATION CONTACT: Jan case management information system or areas of nonconformity. CB supports the Rothstein, Children’s Bureau, 1250 systems that States/Tribes/local States with technical assistance and Maryland Ave., SW., 8th Floor, agencies use for case management or monitors implementation of their plans. Washington, DC 20024, (202) 401–5073. quality assurance purposes play in a States that are unable to complete their Federal monitoring process? SUPPLEMENTARY INFORMATION: PIPs successfully have some of their 4. What roles should State/Tribal/ Child and Family Service Review Federal child welfare funds withheld local child welfare agencies play in Background: Section 1123A of the until they are found to be in substantial Social Security Act (the Act) requires conformity or have successfully establishing targets for improvement the Secretary of the Department of completed a PIP as prescribed in the and monitoring performance towards Health and Human Services to issue Federal regulations. those targets? What role should other regulations for the review of programs We believe that the CFSR has been a stakeholders, such as courts, clients and under titles IV–B and IV–E to determine factor contributing to increased State other child-serving agencies play? whether such programs are in and local attention to child welfare 5. In what ways should targets and substantial conformity with title IV–B practice improvement and a renewed performance goals be informed by and and IV–E plan requirements, focus on child and family outcomes and integrated with other Federal child implementing regulations and relevant the systems supporting positive welfare oversight efforts? title IV–B and IV–E plans. ACF issued outcomes. Stakeholders have also noted 6. What specific strategies, supports, regulations implementing such reviews, that there are areas where the CFSRs incentives, or penalties are needed to known as the CFSRs, in the Federal could contribute to even more positive ensure continued quality improvement Register on January 25, 2000 (65 FR changes. To that end, we are interested and achievement of positive outcomes 4020). The review process, as regulated, in learning from stakeholders in for children and families that are in grew out of extensive consultation with response to the questions below how substantial conformity with Federal interested groups, individuals and they would envision a Federal review child welfare laws? experts in the field of child welfare and process that meets the statutory 7. In light of the ability of Tribes to related areas. The consultation affirmed requirements in section 1123A of the directly operate title IV–E programs that the broad goals of child welfare Act and holds child welfare agencies through recent changes in the statute, in systems are to: Assure safety for all accountable for achieving positive what ways, if any, should a Federal children; to assure permanent, nurturing outcomes for children and families and review process focus on services homes for all children; and to enhance continuously improving the quality of delivered to Indian children? the well-being of children and their their systems for doing so. 8. Are there examples of other review families. The reviews reinforce those In addition to the foregoing, we would protocols, either in child welfare or goals. like to clarify that, although several of related fields, in which Tribal/State/ The existing CFSRs enable CB to: (1) the questions below address Tribal local governments participate that might Ensure conformity with Federal child involvement in Federal reviews of title inform CB’s approach to reviewing child welfare requirements; (2) determine IV–B and IV–E plan requirements, until welfare systems?

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We welcome any other comments you and/or their representatives. The dates eRulemaking Portal: http:// have about Federal review of child of these sessions are listed below: www.regulations.gov. welfare programs, including the current August 2–3 in Oklahoma City, • Paper Filers: Parties who choose to CFSR process. Oklahoma; file by paper must file an original and Additional Consultation August 16–17 in Seattle, Washington; four copies of each filing. If more than Opportunities: In addition to this September 13–14 in Minneapolis, one docket or rulemaking number opportunity to comment, CB plans to Minnesota. appears in the caption of this hold four in-person consultations in A portion of the agenda for these proceeding, filers must submit two ACF Regions III, VI, VIII and IX and two roundtables will be set aside to discuss additional copies for each additional meetings in our offices in Washington, Federal monitoring of child and family docket or rulemaking number. Filings DC. services programs under titles IV–B and can be sent by hand or messenger CB invites State representatives, IV–E. The Children’s Bureau will send delivery, by commercial overnight Tribal leaders and/or their information directly to Tribal leaders courier, or by first-class or overnight representatives, judges, families and regarding attendance at these U.S. Postal Service mail. All filings youth served by the child welfare roundtables. must be addressed to the system and other interested Commission’s Secretary, Office of the stakeholders to attend these in-person Dated: March 31, 2011. Secretary, Federal Communications meetings or call in via the conference Bryan Samuels, Commission. call number to provide their input on Commissioner, Administration on Children, • All hand-delivered or messenger- the questions raised above. Registration Youth and Families. delivered paper filings for the for the meetings and calls must be [FR Doc. 2011–8044 Filed 4–4–11; 8:45 am] Commission’s Secretary must be completed in advance per the details BILLING CODE 4184–25–P delivered to FCC Headquarters at below. You may also provide written 445 12th St., SW., Room TW–A325, comments as noted in the ADDRESSES Washington, DC 20554. The filing section, regardless of participation in an FEDERAL COMMUNICATIONS hours are 8 a.m. to 7 p.m. All hand in-person session or conference call. COMMISSION deliveries must be held together Finally, please note that Federal with rubber bands or fasteners. Any representatives attending the 47 CFR Parts 1, 17, 22, 24, 25, 27, 80, envelopes must be disposed of consultation sessions will not be able to 87, and 90 before entering the building. • respond directly during the session to [WT Docket Nos. 08–61 and 03–187; DA Commercial overnight mail (other the concerns or questions raised by 11–558] than U.S. Postal Service Express participants. The consultation sessions Mail and Priority Mail) must be sent and contact information are listed Wireless Telecommunications Bureau to 9300 East Hampton Drive, below: Invites Comment on Draft Capitol Heights, MD 20743. CB meeting/conference call–1: April 26, Environmental Notice Requirements • U.S. Postal Service first-class, 2011, 12–2 EDT. and Interim Procedures Affecting the Express, and Priority mail must be CB meeting/conference call–2: May 3, Antenna Structure Registration addressed to 445 12th Street, SW., 2011, 1–3 EDT. Program Washington, DC 20554. Register for the meeting/call of your People with Disabilities: To request choice by sending an e-mail to: AGENCY: Federal Communications Commission. materials in accessible formats for [email protected] to register. people with disabilities (braille, large ACTION: Proposed rule. Region III—April 20, 2011, 10:00–12:00 print, electronic files, audio format), EDT SUMMARY: In this document, the Bureau send an e-mail to [email protected] or call 150 S. Independence Mall West, Suite invites comment, pursuant to the rules the Consumer & Governmental Affairs 864, Philadelphia, PA 19106–3499, of the Council on Environmental Bureau at 202–418–0530 (voice), 202– Please send an e-mail to: Quality (CEQ), on draft rules and 418–0432 (tty). [email protected] to register. interim procedures designed to ensure Parties should send a copy of each that the environmental effects of filing to the Spectrum and Competition Region VI—April 18, 2011, 10:00–12:00 proposed communications towers, Policy Division, Wireless CDT including their effects on migratory Telecommunications Bureau, Federal 1301 Young Street, Room 1119, Dallas, birds, are fully considered prior to Communications Commission, 445 12th TX 75202, Please send an e-mail to: construction. Street, SW., Washington, DC 20554, or [email protected] to register. by e-mail to [email protected]. DATES: Submit comments on or before Parties shall also serve one copy with Region VIII—April 27, 2011, 10:00– May 5, 2011. the Commission’s copy contractor, Best 12:00 MDT ADDRESSES: All filings should refer to Copy and Printing, Inc. (BCPI), Portals 999 18th Street, South Terrace, Suite WT Docket Nos. 08–61 and 03–187. II, 445 12th Street, SW., Room CY–B402, 499, Denver, CO 80202, Please send Comments may be filed using: (1) The Washington, DC 20554, (202) 488–5300, an e-mail to: [email protected] Commission’s Electronic Comment or via e-mail to [email protected]. to register. Filing System (ECFS), (2) the Federal Filings and comments will be Government’s eRulemaking Portal, or (3) available for public inspection and Region IX—April 20, 2011, 10:30–12:30 by filing paper copies. See Electronic copying during regular business hours PDT Filing of Documents in Rulemaking at the FCC Reference Information 90 7th Street, 9th Floor, San Francisco, Proceedings, 63 FR 24121 (1998). Center, Portals II, 445 12th Street, SW., CA 94103, Please send an e-mail to: • Electronic Filers: Comments may be Room CY–A257, Washington, DC 20554. [email protected] to register. filed electronically using the Internet They may also be purchased from the The Children’s Bureau is also hosting by accessing the ECFS: http:// Commission’s duplicating contractor, Tribal Roundtables for Tribal leaders fjallfoss.fcc.gov/ecfs2/or the Federal Best Copy and Printing, Inc., Portals II,

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445 12th Street, SW., Room CY–B402, The draft procedures also include 47 CFR Part 17 Washington, DC 20554, telephone: (202) provisions consistent with a Aviation safety, Communications 488–5300, fax: (202) 488–5563, or via e- Memorandum of Understanding among equipment, and Reporting and mail http://www.bcpiweb.com. representatives of communications recordkeeping requirements. Availability of Documents: Comments providers, tower companies, and and ex parte submissions will be conservation groups. 47 CFR Part 22 available for public inspection during Under the draft rules and procedures Communications common carriers, regular business hours in the FCC attached to this document: Communications equipment, Radio, Reference Center, Federal • Prior to the filing of an ASR Reporting and recordkeeping Communications Commission, 445 12th application for a new antenna structure, requirements, and Rural areas. Street, SW., CY–A257, Washington, DC members of the public would be given 20554. These documents will also be an opportunity to comment on the 47 CRF Part 24 available via ECFS. Documents will be environmental effects of the proposed Administrative practice and available electronically in ASCII, construction. The applicant would procedure, Communications common Microsoft Word, and/or Adobe Acrobat. provide notice of the proposal to the carriers, Communications equipment, FOR FURTHER INFORMATION CONTACT: local community, and the Commission Radio, Reporting and recordkeeping Mania K. Baghdadi, Spectrum and would post information about the requirements, and Telecommunications. Competition Policy Division, Wireless proposal on its Web site. Commission 47 CFR Part 25 Telecommunications Bureau, at (202) staff would consider any comments 418–2133 or by e-mail: received from the public to determine Communications common carriers, [email protected]. whether an EA is required for the tower. Communications equipment, Radio, SUPPLEMENTARY INFORMATION: This is a • EAs for those registered towers that Reporting and recordkeeping summary of the Commission’s Public require EAs would be filed and requirements, Satellites, Securities, and Notice in WT Docket Nos. 08–61 and considered by the Commission prior to Telecommunications. 03–187; DA 11–558, released on March the filing of an ASR application. Those 47 CFR Part 27 25, 2011. In this document, the Bureau EAs are currently filed at the same time invites comment, pursuant to the rules as either the ASR application or a Communications common carriers of the Council on Environmental service-specific license or permit and Radio. Quality (CEQ), on draft rules and application. 47 CFR Part 80 interim procedures designed to ensure • On an interim basis pending Communications equipment, Great that the environmental effects of completion of the ongoing Lakes, Marine safety, Radio, Reporting proposed communications towers, programmatic environmental analysis of and recordkeeping requirements, including their effects on migratory the ASR program, an EA would be Telegraph, Telephone, and Vessels. birds, are fully considered prior to required to be filed for each proposed construction. These draft rules and registered tower more than 450 feet in 47 CFR Part 87 procedures are intended to further the height to address its potential impact on Commission’s implementation of the Air transportation, Communications migratory birds. Staff would review the equipment, Defense communications, National Environmental Policy Act EA to determine whether the tower (NEPA) while preserving the ability of Radio, and Reporting and recordkeeping would have a significant environmental requirements. communications providers rapidly to impact. offer innovative and valuable services to Ex Parte Presentations. This 47 CFR Part 90 the public. proceeding shall be treated as a ‘‘permit- Administrative practice and Under CEQ’s rules, before adopting but-disclose’’ proceeding in accordance procedures implementing NEPA an procedure, Common carriers, with the Commission’s ex parte rules. Communications equipment, Radio, and agency must publish its draft Persons making oral ex parte procedures in the Federal Register for Reporting and recordkeeping presentations are reminded that requirements. comment, and CEQ must determine that memoranda summarizing the Federal Communications Commission the procedures conform with NEPA and presentations must contain summaries CEQ’s regulations. The Bureau issues of the substance of the presentations Ruth Milkman, this document in order to seek public and not merely a listing of the subjects Chief. Wireless Telecommunications Bureau. comment in compliance with those discussed. More than a one or two Proposed Rules requirements. sentence description of the views and The draft rules and procedures arguments presented is generally For the reasons discussed in the respond to the decision of the Court of required. Other requirements pertaining preamble, the Federal Communications Appeals for the District of Columbia to oral and written presentations are set Commission proposes to amend 47 CFR Circuit in American Bird Conservancy v. forth in § 1.1206(b) of the Commission’s parts 1, 17, 22, 24, 25, 27, 80, 87, and FCC. In American Bird Conservancy, the rules. 90 as follows: court held that the Commission’s current antenna structure registration List of Subjects PART 1—PRACTICE AND (ASR) procedures impermissibly fail to PROCEDURE 47 CFR Part 1 offer members of the public a 1. The authority citation for part 1 meaningful opportunity to request an Administrative practice and continues to read as follows: Environmental Assessment (EA) for procedure, Communications common proposed towers that the Commission carriers, Environmental impact Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. considers categorically excluded from statements, Federal buildings and 151, 154(i), 154(j), 155, 157, 225, 303(r), and review under NEPA. The notification facilities, Radio, Reporting and 309. process included within the draft rules recordkeeping requirements, Satellites, 2. Section 1.61 is amended by revising would address that holding of the court. and Telecommunications. paragraph (a)(2) to read as follows:

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§ 1.61 Procedures for handling Commission must be completed prior to § 1.1307 Actions that may have a applications requiring special aeronautical construction. significant environmental effect, for which study. Environmental Assessments (EAs) must be (2) For applications that propose any prepared. (a) * * * facilities that are not subject to the (2) In accordance with § 1.1307 and * * * * * process set forth in § 17.4(c) of this (d) * * * § 17.4(c) of this chapter, the Bureau will chapter, the applicant is required to address any environmental concerns indicate at the time its application is Note to paragraph (d). Pending a final prior to processing the registration. determination as to what, if any, permanent filed whether or not a Commission grant * * * * * measures should be adopted specifically for of the application for those facilities the protection of migratory birds, the Bureau 3. Section 1.923 is amended by may have a significant environmental shall require an Environmental Assessment revising paragraphs (d) and (e) to read effect as defined by § 1.1307. If the for an otherwise categorically excluded as follows: applicant answers affirmatively, an action involving a new or existing antenna structure, for which an antenna structure § 1.923 Content of applications. Environmental Assessment, required by § 1.1311, must be filed with the registration application (FCC Form 854) is * * * * * required under part 17 of this chapter, if the application and environmental review (d) Antenna Structure Registration. proposed antenna structure will be more than by the Commission must be completed Owners of certain antenna structures 450 feet in height above ground level (AGL) must notify the Federal Aviation prior to construction. and involves either: (1) Construction of a new Administration and register with the * * * * * antenna structure; (2) modification or replacement of an existing antenna structure Commission as required by part 17 of 4. Section 1.929 is amended by involving a substantial increase in size as this chapter. Applications proposing the revising paragraph (a)(4) to read as defined in Section I(C)(1)–(3) of Appendix B use of one or more new or existing follows: to Part 1 of this chapter; or (3) addition of antenna structures must contain the lighting or adoption of a less preferred FAA FCC Antenna Structure Registration § 1.929 Classification of filings as major or Lighting Style as defined in § 17.4(c)(1)(C) of Number(s) of each structure for which minor. this chapter. The Bureau shall consider registration is required. To facilitate * * * * * whether to require an EA for other antenna structures subject to § 17.4(c) of this chapter frequency coordination or for other (a) * * * purposes, the Bureau shall accept for in accordance with § 17.4(c)(8) of this chapter. An Environmental Assessment filing an application that does not (4) Application or amendment requesting authorization for a facility required pursuant to this note will be subject contain the FCC Antenna Structure to the same procedures that apply to any Registration Number so long as; that may have a significant Environmental Assessment required for a (1) The antenna structure owner has environmental effect as defined in proposed tower or modification of an existing filed an antenna structure registration § 1.1307, unless the facility has been tower for which an antenna structure application (FCC Form 854); determined not to have a significant registration application (FCC Form 854) is (2) The antenna structure owner has environmental effect through the required, as set forth in § 17.4(c) of this provided local notice and the process set forth in § 17.4(c) of this chapter. Commission has posted notification of chapter. the proposed construction on its Web * * * * * PART 17—CONSTRUCTION, site pursuant to § 17.4(c)(3) and (4) of MARKING, AND LIGHTING OF 5. Section 1.934 is amended by ANTENNA STRUCTURES this chapter; and adding paragraph (g) to read as follows: (3) The antenna structure owner has 7. The authority citation for part 17 obtained a Determination of No Hazard § 1.934 Defective applications and continues to read as follows: to Aircraft Navigation from the Federal dismissal. Aviation Administration. In such Authority: Secs. 4, 303, 48 Stat. 1066, * * * * * 1082, as amended; 47 U.S.C. 154, 303, instances, the applicant shall provide (g) Dismissal for failure to pursue Interpret or apply secs. 301, 309, 48 Stat. the FCC Form 854 File Number on its environmental review. The Commission 1081, 1085, as amended; 47 U.S.C. 301, 309. application. Once the antenna structure owner has obtained the Antenna may dismiss license applications (FCC 8. Section 17.4 is amended by revising Structure Registration Number, the Form 601) associated with proposed paragraph (c) to read as follows: antenna structure(s) subject to § 17.4(c) applicant shall amend its application to § 17.4 Antenna structure registration. provide the Antenna Structure of this chapter, if pending more than 60 days and awaiting submission of an * * * * * Registration Number, and the (c) Each prospective applicant must Commission shall not grant the Environmental Assessment or other environmental information from the complete the environmental notification application before the Antenna process described in this paragraph, Structure Registration Number has been applicant, unless the applicant has provided an affirmative statement except as specified in paragraph (c)(1) of provided. If registration is not required, this section. the applicant must provide information reflecting active pursuit during the previous 60 days of environmental (1) Exceptions from the environmental in its application sufficient for the notification process. Completion of the Commission to verify this fact. review for the proposed antenna structure(s). To avoid potential environmental notification process is (e) Environmental Concerns. not required when FCC Form 854 is dismissal of its license application, the (1) Environmental processing shall be submitted solely for the following license applicant must provide updates completed pursuant to the process set purposes: forth in § 17.4(c) of this chapter for any every 60 days unless or until the (i) For notification only, such as to facilities that use one or more new or applicant has submitted the material report a change in ownership or contact existing antenna structures for which a requested by the Bureau. information, or the dismantlement of an new or amended registration is required 6. Section 1.1307 is amended by antenna structure; by part 17 of this chapter. adding a note to paragraph (d) to read (ii) For a reduction in height of an Environmental review by the as follows: antenna structure or an increase in

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height that does not constitute a ownership and contact information, (2) Content. An Environmental substantial increase in size as defined in geographic location, and height, as well Request must state why the interested Section I(C)(1)–(3) of Appendix B to part as the type of structure and anticipated person or entity believes that the 1 of this chapter, provided that there is lighting. The Wireless proposed antenna structure or physical no construction or excavation more than Telecommunications Bureau may utilize modification of an existing antenna 30 feet beyond the existing antenna a partially completed FCC Form 854 to structure may have a significant impact structure property; collect this information. on the quality of the human (iii) For removal of lighting from an (3) Local notice. The prospective environment for which an antenna structure or adoption of a more applicant must provide local notice of Environmental Assessment must be preferred FAA Lighting Style. For this the proposed new antenna structure or considered by the Commission as purpose FAA Lighting Styles are ranked modification of an existing antenna required by § 1.1307 of this chapter, or as follows (with the most preferred structure through publication in a why an Environmental Assessment lighting style listed first and the least newspaper of general circulation or submitted by the prospective ASR preferred listed last): FAA Style B (L– other appropriate means, such as applicant does not adequately evaluate 856), FAA Style D (L–865), FAA Style through the public notification the potentially significant E (L–864/L–865/L–810), FAA Style C provisions of the relevant local zoning environmental effects of the proposal. (L–856/L–865), FAA Style F (L–856 process. The local notice shall contain The Request must be submitted as a Day/L–864 Night and L–810) and FAA all of the descriptive information as to written petition filed either Style A (L–864/L–810). A complete geographic location, configuration, electronically or by hard copy setting description of each FAA Style and the height and anticipated lighting forth in detail the reasons supporting manner in which it is to be deployed specifications reflected in the Requester’s contentions. can be found at FAA, U.S. Dept. of submission required pursuant to (6) Amendments. The prospective Transportation, Advisory Circular: paragraph (c)(2) of this section. It must applicant must file an amendment to Obstruction Marking and Lighting, AC also provide information as to the report any substantial change in the 70/7460–1K (Feb. 1, 2007); procedure for interested persons to file information provided to the (iv) For replacement of an existing Requests for environmental processing Commission. An amendment will not antenna structure at the same pursuant to §§ 1.1307(c) and 1.1313(b) require further local or national notice geographic location that does not of this chapter, including any assigned if the only reported change is a require an Environmental Assessment file number. reduction in the height of the proposed (EA) under § 1.1307(a) through (d) of new or modified antenna structure; if (4) National notice. On or after the this chapter, provided the new structure proposed lighting is removed or local notice date provided by the will not use lights if the previous changed to a more preferred FAA prospective applicant, the Commission structure was unlighted, the new Lighting Style as set forth in paragraph shall post notification of the proposed structure will not use a less preferred (c)(1)(iii) of this section; or if the construction on its Web site. This FAA Lighting Style, there will be no amendment reports only administrative posting shall include the information substantial increase in size as defined in changes that are not subject to the contained in the initial filing with the Section I(C)(1)–(3) of Appendix B to part requirements specified in this Commission or a link to such 1 of this chapter, and there will be no paragraph. All other changes to the construction or excavation more than 30 information. The posting shall remain physical structure, lighting, or feet beyond the existing antenna on the Commission’s Web site for a geographic location data for a proposed structure property; period of 30 days. registered antenna structure require (v) For any other change that does not (5) Requests for environmental additional local and national notice and alter the physical structure, lighting, or processing. Any Request filed by an a new period for filing Requests geographic location of an existing interested person pursuant to pursuant to paragraphs (c)(3), (c)(4), and structure; or §§ 1.1307(c) and 1.1313(b) of this (c)(5) of this section. (vi) For construction, modification, or chapter must be received by the (7) Environmental Assessments. If an replacement of an antenna structure on Commission no later than 30 days after Environmental Assessment (EA) is Federal land where another Federal the proposed antenna structure goes on required under § 1.1307 of this chapter, agency has assumed responsibility for notice pursuant to paragraph (c)(4) of the antenna structure registration evaluating the potentially significant this section. The Wireless applicant shall attach the EA to its environmental effect of the proposed Telecommunications Bureau shall environmental submission, regardless of antenna structure on the quality of the establish by public notice the process any requirement that the EA also be human environment and for invoking for filing Requests for environmental attached to an associated service- any required environmental impact processing and responsive pleadings specific license or construction permit statement process, or for any other consistent with the following application. The EA may be provided structure where another Federal agency provisions. either with the initial environmental has assumed such responsibilities (1) Service and pleading cycle. The submission or as an amendment. If the pursuant to a written agreement with interested person or entity shall serve a EA is submitted as an amendment, the the Commission. See § 1.1311(e) of this copy of its Request on the prospective Commission shall post notification on chapter. ASR applicant pursuant to § 1.47 of this its Web site for another 30 days (2) Commencement of the chapter. Oppositions may be filed no pursuant to paragraph (c)(4) of this environmental notification process. The later than 10 days after the time for section and accept additional Requests prospective applicant shall commence filing Requests has expired. Replies to pursuant to paragraph (c)(5) of this the environmental notification process oppositions may be filed no later than section. However, additional local by filing information about the proposed 5 days after the time for filing notice pursuant to paragraph (c)(3) of antenna structure with the Commission. oppositions has expired. Oppositions this section shall not be required unless This information shall include, at a shall be served upon the Requester, and information has changed pursuant to minimum, all of the information replies shall be served upon the paragraph (c)(6) of this section. The required on FCC Form 854 regarding prospective applicant. applicant shall serve a copy of the EA

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upon any party that has previously filed PART 24—PERSONAL notification process specified in a Request pursuant to paragraph (c)(5) of COMMUNICATION SERVICES § 17.4(c) of this chapter. this section. * * * * * 11. The authority citation for part 24 (8) Disposition. The processing 15. Section 25.115 is amended by continues to read as follows: Bureau shall resolve all environmental revising paragraph (c)(2)(vi)(A)(4) to issues before the tower owner, or the Authority: 47 U.S.C. 154, 301, 302, 303, read as follows: first tenant licensee acting on behalf of 309 and 332. the owner, may complete the antenna § 25.115 Applications for earth station 12. Section 24.2 is amended by authorizations. structure registration application. In a revising paragraphs (b) and (f) to read as case where no EA is submitted, the follows: * * * * * Bureau shall notify the applicant (c) * * * whether an EA is required under § 24.2 Other applicable rule parts. (2) * * * § 1.1307(c) or (d) of this chapter. In a * * * * * (vi) * * * case where an EA is submitted, the (b) Part 1. This part includes rules of (A) * * * (4) The applicant has determined that Bureau shall either grant a Finding of practice and procedure for license the facility(ies) will not significantly No Significant Impact (FONSI) or notify applications, adjudicatory proceedings, affect the environment as defined in the applicant that the proposal may procedures for reconsideration and § 1.1307 of this chapter after complying have a significant environmental impact review of the Commission’s actions; with any applicable environmental and further environmental processing is provisions concerning violation notices notification procedures specified in required pursuant to § 1.1308 of this and forfeiture proceedings; and the § 17.4(c) of this chapter. chapter. Upon filing the completed environmental requirements that, antenna structure registration together with the procedures specified * * * * * application, the applicant shall certify in § 17.4(c) of this chapter, if applicable, PART 27—MISCELLANEOUS that the construction will not have a must be complied with prior to the WIRELESS COMMUNICATION significant environmental impact, initiation of construction. Subpart F SERVICES unless an Environmental Impact includes the rules for the Wireless Statement is prepared pursuant to Telecommunications Services and the 16. The authority citation for part 27 § 1.1314 of this chapter. procedures for filing electronically via continues to read as follows: (9) Transition rule. An antenna the ULS. Authority: 47 U.S.C. 154, 301, 302, 303, structure registration application that is * * * * * 307, 309, 332, 336 and 337 unless otherwise pending with the Commission as of (f) Part 17. This part contains noted. [EFFECTIVE DATE OF FINAL RULE] requirements for the construction, 17. Section 27.3 is amended by shall not be required to complete the marking and lighting of antenna towers, revising paragraphs (b) and (f) to read as environmental notification process set and the environmental notification follows: forth in this paragraph. However, if such process that must be completed before an application is amended in a manner filing certain antenna structure § 27.3 Other applicable rule parts. that would require additional notice registration applications. * * * * * pursuant to paragraph (c)(6) of this * * * * * (b) Part 1. This part includes rules of section, then such notice shall be practice and procedure for license required. PART 25—SATELLITE applications, adjudicatory proceedings, * * * * * COMMUNICATIONS procedures for reconsideration and review of the Commission’s actions; PART 22—PUBLIC MOBILE SERVICES 13. The authority citation for part 25 provisions concerning violation notices continues to read as follows: 9. The authority citation for part 22 and forfeiture proceedings; competitive continues to read as follows: Authority: 47 U.S.C. 701–744. Interprets or bidding procedures; and the applies Sections 4, 301, 302, 303, 307, 309, environmental requirements that, Authority: 47 U.S.C. 154, 222, 303, 309 and and 332 of the Communications Act, as together with the procedures specified 332. amended, 47 U.S.C. Sections 154, 301, 302, in § 17.4(c) of this chapter, if applicable, 10. Section 22.143 is amended by 303, 307, 309, and 332, unless otherwise must be complied with prior to the revising paragraph (d)(4) to read as noted. initiation of construction. Subpart F follows: 14. Section 25.113 is amended by includes the rules for the Wireless revising paragraph (a) to read as follows: Telecommunications Services and the § 22.143 Construction prior to grant of procedures for filing electronically via application. § 25.113 Station licenses and launch the ULS. * * * * * authority (d) * * * (a) Construction permits are not * * * * * (f) Part 17. This part contains (4) For any construction or alteration required for satellite earth stations. requirements for the construction, that would exceed the requirements of Construction of such stations may marking and lighting of antenna towers, § 17.7 of this chapter, the licensee has commence prior to grant of a license at and the environmental notification notified the appropriate Regional Office the applicant’s own risk. Applicants process that must be completed before of the Federal Aviation Administration must comply with the provisions of 47 filing certain antenna structure (FAA Form 7460–1), secured a valid CFR 1.1312 relating to environmental registration applications. FAA determination of ‘‘no hazard,’’ and processing prior to commencing received antenna height clearance and construction. Applicants filing * * * * * obstruction marking and lighting applications that propose the use of one specifications (FCC Form 854R) from PART 80—STATIONS IN THE or more new or existing antenna MARITIME SERVICES the FCC for the proposed construction structures requiring registration under or alteration. part 17 of this chapter must also comply 18. The authority citation for part 80 * * * * * with any applicable environmental continues to read as follows:

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Authority: Secs. 4, 303, 307(e), 309, and notification process that must be DEPARTMENT OF THE INTERIOR 332, 48 Stat. 1066, 1082, as amended; 47 completed before filing certain antenna U.S.C. 154, 303, 307(e), 309, and 332, unless structure registration applications. Fish and Wildlife Service otherwise noted. Interpret or apply 48 Stat. * * * * * 1064–1068, 1081–1105, as amended; 47 50 CFR Part 17 U.S.C. 151–155, 301–609; 3 UST 3450, 3 UST 4726, 12 UST 2377. PART 90—PRIVATE LAND MOBILE [Docket No. FWS–R6–ES–2011–0016; MO 19. Section 80.3 is amended by RADIO SERVICES 92210–0–0008–B2] revising paragraphs (b) and (e) to read 22. The authority citation for part 90 Endangered and Threatened Wildlife as follows: continues to read as follows: and Plants; 12-Month Finding on a Petition To List the Bearmouth § 80.3 Other applicable rule parts of this Authority: Sections 4(i), 11, 303(g), 303(r), chapter. Mountainsnail, Byrne Resort and 332(c)(7) of the Communications Act of * * * * * Mountainsnail, and Meltwater Lednian 1934, as amended, 47 U.S.C. 154(i), 161, Stonefly as Endangered or Threatened (b) Part 1. This part includes rules of 303(g), 303(r), 332(c)(7). practice and procedure for license AGENCY: Fish and Wildlife Service, applications, adjudicatory proceedings, 23. Section 90.5 is amended by Interior. procedures for reconsideration and revising paragraphs (b) and (f) to read as ACTION: Notice of 12-month petition review of the Commission’s actions; follows: finding. provisions concerning violation notices and forfeiture proceedings; and the § 90.5 Other applicable rule parts. SUMMARY: We, the U.S. Fish and environmental processing requirements * * * * * Wildlife Service (Service), announce a that, together with the procedures (b) Part 1 includes rules of practice 12-month finding on a petition to list specified in § 17.4(c) of this chapter, if and procedure for the filing of the Bearmouth mountainsnail applicable, must be complied with prior applications for stations to operate in (Oreohelix species 3), Byrne Resort to the initiation of construction. Subpart the Wireless Telecommunications mountainsnail (Oreohelix species 31), Q of part 1 contains rules governing Services, adjudicatory proceedings and meltwater lednian stonefly (Lednia competitive bidding procedures for including hearing proceedings, and rule tumana) as endangered or threatened, resolving mutually exclusive making proceedings; procedures for and to designate critical habitat under applications for certain initial licenses. reconsideration and review of the the Endangered Species Act of 1973, as * * * * * Commission’s actions; provisions amended (Act). After review of all (e) Part 17. This part contains concerning violation notices and available scientific and commercial requirements for the construction, forfeiture proceedings; and the information, we find that listing the marking and lighting of antenna towers, environmental processing requirements Bearmouth mountainsnail and the and the environmental notification that, together with the procedures Byrne Resort mountainsnail is not process that must be completed before specified in § 17.4(c) of this chapter, if warranted because neither constitutes a valid taxon; therefore, they are not filing certain antenna structure applicable, must be complied with prior considered to be listable entities under registration applications. to initiating construction. the Act. We find that listing of the * * * * * * * * * * meltwater lednian stonefly is warranted. PART 87—AVIATION SERVICES (f) Part 17 contains requirements for However, currently listing of the construction, marking and lighting of meltwater lednian stonefly is precluded 20. The authority citation for part 87 antenna towers, and the environmental by higher priority actions to amend the continues to read as follows: notification process that must be Lists of Endangered and Threatened Authority: 47 U.S.C. 154, 303, and 307(e), completed before filing certain antenna Wildlife and Plants. Upon publication unless otherwise noted. structure registration applications. of this 12-month petition finding, we 21. Section 87.3 is amended by * * * * * will add the meltwater lednian stonefly to our candidate species list. We will revising paragraphs (b) and (e) to read 24. Section 90.129 is amended by as follows: develop a proposed rule to list the revising paragraph (g) to read as follows: meltwater lednian stonefly as our § 87.3 Other applicable rule parts. § 90.129 Supplemental information to be priorities allow. We will make any * * * * * routinely submitted with applications. determination on critical habitat during development of the proposed listing (b) Part 1 contains rules of practice * * * * * and procedure for license applications, rule. During any interim period, we will adjudicatory proceedings, rule making (g) The environmental assessment address the status of the candidate taxon proceedings, procedures for required by §§ 1.1307 and 1.1311 of this through our annual Candidate Notice of reconsideration and review of the chapter, if applicable. If an application Review (CNOR). Commission’s actions; provisions filed under this part proposes the use of DATES: The finding announced in this concerning violation notices and one or more new or existing antenna document was made on April 5, 2011. forfeiture proceedings; and the structures that require registration under ADDRESSES: This finding is available on environmental processing requirements part 17 of this chapter, any required the Internet at http:// that, together with the procedures environmental assessment should be www.regulations.gov at Docket Number specified in § 17.4(c) of this chapter, if submitted pursuant to the process set FWS–R6–ES–2011–0016. Supporting applicable, must be complied with prior forth in § 17.4(c) of this chapter rather documentation we used in preparing to the initiation of construction. than with the application filed under this finding is available for public * * * * * this part. inspection, by appointment, during (e) Part 17 contains requirements for * * * * * normal business hours at the U.S. Fish construction, marking and lighting of [FR Doc. 2011–7785 Filed 4–4–11; 8:45 am] and Wildlife Service, Montana Field antenna towers, and the environmental BILLING CODE 6712–01–P Office, 585 Shepard Way, Helena, MT

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59601. Please submit any new preliminary review, we found no Byrne Resort mountainsnail, and information, materials, comments, or compelling evidence to support an meltwater lednian stonefly as questions concerning this finding to the emergency listing for any of the species endangered or threatened. above street address. covered by the petition, and that we Species Information for Bearmouth planned work on the petition in Fiscal FOR FURTHER INFORMATION CONTACT: Mountainsnail and Byrne Resort Year (FY) 2008. Mark Wilson, Field Supervisor, Mountainsnail Montana Field Office (see ADDRESSES); On March 19, 2008, WildEarth by telephone at 406–449–5225; or by Guardians filed a complaint (1:08–CV– Species Descriptions 472–CKK) indicating that the Service facsimile at 406–449–5339. Persons who Bearmouth mountainsnail and Byrne failed to comply with its statutory duty use a telecommunications device for the Resort mountainsnail are ascribed to the to make 90-day findings on their two deaf (TDD) may call the Federal genus Oreohelix, commonly called the multiple species petitions in two of the Information Relay Service (FIRS) at ‘‘mountainsnail.’’ This genus of land 800–877–8339. Service’s administrative regions—one for the mountain-prairie region, and one snails is endemic to western North SUPPLEMENTARY INFORMATION: for the Southwest region (WildEarth America and is found in mountainous environments in the western United Background Guardians v. Kempthorne 2008, case 1:08–CV–472–CKK). We subsequently States from the eastern Sierra Nevadas Section 4(b)(3)(B) of the Act (16 published two initial 90-day findings on in the west to the Black Hills in the east, U.S.C. 1531 et seq.) requires that, for January 6, 2009 (74 FR 419), and and from southern Canada down to any petition containing substantial February 5, 2009 (74 FR 6122), northern Mexico (Pilsbry 1916, pp. 341– scientific or commercial information identifying species for which we were 342; Pilsbry 1939, pp. 415–416; Weaver indicating that listing the species may then making negative 90-day findings, 2006, p. 9). be warranted, we make a finding within and species for which we were still Biology and Life History 12 months of the date of receipt of the working on a determination. The Most mountainsnail species are petition. In this finding, we determine Bearmouth mountainsnail, Byrne Resort that the petitioned action is: (a) Not mountainsnail, and meltwater lednian relatively large land snails (adult body warranted, (b) warranted, or (c) stonefly were not addressed in either size greater than 5 centimeters (cm) (2 warranted, but immediate proposal of a 90-day finding published in 2009, as we inches (in.)) that typically prefer regulation implementing the petitioned were still conducting our analyses of forested environments, calcium-rich action is precluded by other pending these mountainsnails and the stonefly. areas, and generally high available water proposals to determine whether species On March 13, 2009, the Service and content during generally dry conditions are endangered or threatened, and WildEarth Guardians filed a stipulated in spring and summer months (Weaver expeditious progress is being made to settlement in the U.S. District Court, 2006, p. 9). They survive colder add or remove qualified species from District of Columbia, agreeing that the conditions at higher elevations by the Federal Lists of Endangered and Service would submit to the Federal burrowing underground and aestivating Threatened Wildlife and Plants. Section Register a finding as to whether (Weaver 2006, p. 9). Individuals often 4(b)(3)(C) of the Act requires that we WildEarth Guardians’ petition presented also burrow during hot summer months, treat a petition for which the requested substantial information indicating that appearing on the surface to feed during action is found to be warranted but the petitioned action may be warranted or after rains (Frest and Johannes 1995, precluded as though resubmitted on the for 38 mountain-prairie region species p. 22; Weaver 2006, p. 9). One date of such finding, that is, requiring a by August 9, 2009 (WildEarth Guardians adaptation by Oreohelix to arid and subsequent finding to be made within v. Salazar 2009, case 1:08–CV–472– semi-arid environments is the practice 12 months. We must publish these 12- CKK). of hatching eggs internally instead of the month findings in the Federal Register. On August 18, 2009, we published a typical pattern of laying them in favorable locations, as desiccation of Previous Federal Actions 90-day finding for 38 mountain-prairie region species (74 FR 41649). In that eggs and juveniles is a common cause of Federal action for the Bearmouth finding, we found that the petition land snail death, especially in arid areas mountainsnail, Byrne Resort presented substantial information to (Frest and Johannes 1995, p. 18). mountainsnail, and meltwater lednian indicate that listing of Bearmouth Hatching the eggs internally can reduce stonefly began on July 30, 2007, after we mountainsnail and Byrne Resort the probability of desiccation, and received a petition dated July 24, 2007, mountainsnail may be warranted due to adults seem to be able to delay release from Forest Guardians (now WildEarth the present or threatened destruction, of juveniles if conditions warrant (Frest Guardians) requesting that the Service: modification, or curtailment of their and Johannes 1995, p. 18). (1) Consider all full species in our habitat or range resulting from road Western land snails are typically mountain-prairie region ranked as G1 or construction and associated activities. herbivores, but some may consume G1G2 by the organization NatureServe, We also found that listing of the animal matter (Frest and Johannes 1995, except those that are currently listed, meltwater lednian stonefly may be p. 24). Land snails contribute proposed for listing, or candidates for warranted based on threats from climate substantially to nutrient recycling, often listing; and (2) list each species as either change, and specifically the melting of breaking down plant detritus and endangered or threatened (Forest glaciers associated with the species’ animal waste (Frest and Johannes 1995, Guardians 2007, pp. 1–37). The petition habitat. The finding also requested pp. 24–25). They are preyed upon incorporated all analyses, references, further information pertaining to all extensively by small mammals (e.g., and documentation provided by three ‘‘species’’ (74 FR 41649). However, shrews and voles), reptiles, amphibians, NatureServe in its online database at the 90-day finding did not formally birds, and insects (Frest and Johannes http://www.natureserve.org/. We consider the taxonomic status of the 1995, p. 25). acknowledged the receipt of the petition petitioned entities. The life history of western land snails in a letter to the Forest Guardians, dated This notice constitutes the 12-month is strongly controlled by climate. Some August 24, 2007 (Slack 2007, p. 1). In finding on the July 24, 2007, petition to species of Oreohelix are among the most that letter we stated, based on list the Bearmouth mountainsnail, long-lived land snails, reaching sexual

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maturity at about 2 to 3 years and living Fork River valley in the area between the old Byrne Resort area.’’ As with the as long as 8 to 10 years (Frest and Clinton and Garrison, Granite and Bearmouth mountainsnail, Frest and Johannes 1995, p. 25). Mountainsnails Powell counties, Montana,’’ and they Johannes did not provide any accurate have low adult vagility (ability to move described the present distribution (in spatial information about the actual or disperse) (Chak 2007, p. 23) and 1995) as ‘‘a few very small colonies in location of these colonies. No apparently lack a larval stage with high the Bearmouth area.’’ They did not occurrences of Byrne Resort dispersal ability (Weaver 2006, pp. 8–9). provide any spatial information about mountainsnail were reported in more Consequently, mountainsnails typically the actual location of these colonies. recent surveys of terrestrial mollusks exist in small, circumscribed colonies They further speculated that Bearmouth conducted by the MNHP (Hendricks with dozens to a few thousand mountainsnail may occur in the 2003, entire; Hendricks et al. 2008, individuals (Frest and Johannes 1995, adjacent lands managed by the U.S. entire). More recently, neither the pp. 22–23). Oreohelix snails are known Forest Service (Lolo National Forest) MNHP nor Dr. Weaver (University of La to be hermaphroditic (individuals have and the State of Montana. Little Verne) have been able to locate a colony both male and female genitalia and can information about the Bearmouth of Oreohelix in the area that Frest and assume either role in mating) (Pisbry mountainsnail has become available Johannes (1995, p. 14) reported the 1939, p. 427; Hendricks 2003, pp.17, 25) since the report by Frest and Johannes Byrne Resort mountainsnail (Hendricks and viviparous (give birth to live young) (1995, p. 115). No occurrences of 2010, pers. comm.; Weaver 2010b, pers. (Pilsbry 1916, p. 343; Pilsbry 1939, p. Bearmouth mountainsnail were reported comm.). It is not known whether the 418). in more recent surveys of terrestrial colonies no longer exist, or if the Oreohelix species and subspecies vary mollusks conducted by the Montana original description of Byrne Resort in size, height of shell spire, degree of Natural Heritage Program (MNHP) mountainsnail is incorrect. carination (i.e., presence and size of a (Hendricks 2003, entire; Hendricks et al. Habitat keel or ridge around the outside whorl 2008, entire). of the shell), width of umbilicus (i.e., The only potential recent occurrences Factors determining habitat the ventral opening formed in the center of Bearmouth mountainsnail come from preferences of land snails include cover, of the whorls), and color (Pilsbry 1939, surveys conducted by Dr. Kathleen effective moisture availability, and p. 415). Shell morphology is plastic Weaver, an assistant professor at the geologic history (Frest and Johannes (variable in response to environmental University of La Verne, California, who 1995, p. 20). Most land snail species conditions) in Oreohelix, and in snails recently began conducting research on including those in the genus Oreohelix in general and can be affected by the distribution, ecology, and genetics of are calciphiles, meaning they are elevation, calcium content, humidity, Oreohelix in Montana. Dr. Weaver usually restricted to limestone, and population density (Chak 2007, p. reports collecting land snail specimens dolomite, or other substrates containing 3). Substantial variation in shell from two colonies she believes may be high levels of the element calcium morphology within a particular Bearmouth mountainsnails (Weaver (Pilsbry 1916, p. 342; Frest and Oreohelix colony is common (Pilsbry 2010a, 2010b, pers. comm.). The first Johannes 1995, pp. 20–21). Moist soil 1916, p. 340; 1939, p. 415). Conversely, colony is located in the Bearmouth area, conditions are favored and soil pH may shell characteristics can be similar in and Dr. Weaver believes it is near the be a factor in determining suitable taxa with different evolutionary type locality ‘‘Bearmouth’’ location along habitat (Frest and Johannes 1995, pp. histories but that occupy similar the Clark Fork River described in Frest 20–24). Oreohelix are generally environments (Chak 2007, p. 3). This and Johannes (1995, p. 5; see above). associated with talus (a sloping mass of variation within species and colonies, The second colony is located along Rock loose rock debris at the base of a cliff) combined with parallelism that can Creek, a left-bank tributary to the Clark or rocky outcrops, and the occupied occur between unrelated groups, has Fork River. The two colonies are sites may range from low-elevation long been recognized as a challenge to believed to represent the same species canyons and valley bottoms to high- correctly identifying Oreohelix based on genetic similarity measured elevation slopes well above the treeline specimens and determining their using mitochondrial DNA (mtDNA, (Hendricks 2003, pp. 4–5). distribution (Pilsbry 1916, p. 340). maternally-inherited DNA found in Taxonomy and Evaluation of the cellular organelles called mitochondria) Distribution and Abundance Listable Entities for Bearmouth (Weaver 2010b, pers. comm.). Dr. The distribution and abundance of Mountainsnail and Byrne Resort Weaver refers to the two colonies as Mountainsnail Bearmouth mountainsnail and Byrne ‘‘Bearmouth mountainsnail’’ based on Resort mountainsnail are not well the location of the first colony (Weaver The genus Oreohelix belongs to known. In general, very little is known 2010b, pers. comm.). Both colonies are phylum Mollusca, class Gastropoda, about the distribution and status of very small (no more than 5 to 15 square order Stylommatophora (terrestrial terrestrial mollusks in Montana (e.g., meters or about 17 to 50 square feet), snails and slugs), and family Hendricks 2003, pp. 3–4). The 2007 and may contain from a few dozen to a Oreohelicidae. The genus Oreohelix petition from WildEarth Guardians and few hundred individuals (Weaver consists of 41 recognized species the NatureServe rankings for both 2010b, pers. comm.). (Turgeon et al. 1998, p. 143; Integrated Bearmouth mountainsnail and Byrne No information is available on the Taxonomic Information System (ITIS) Resort mountainsnail (e.g., NatureServe current abundance or distribution of 2010). Overall, the taxonomy of the 2010a, b) rely entirely on information Byrne Resort mountainsnail, or whether genus is not well known (Chak 2007, p. contained in the unpublished report by the ‘‘species’’ even exists. The original 21; Weaver 2006, p. 9), and additional Frest and Johannes (1995, entire) that distribution of the Byrne Resort species have been proposed in the summarized occurrence and mountainsnail was described by Frest primary literature (e.g., Ports 2004, conservation status of mollusks in the and Johannes (1995, p. 140) as ‘‘the entire), in graduate theses (e.g., Weaver Interior Columbia Basin. Clark Fork River valley near Bearmouth, 2006, pp. 49–95), and in grey literature Frest and Johannes (1995, p. 5) stated Granite County, MT,’’ and they reports (e.g., Frest and Johannes 1995, that the original distribution of described the present distribution (in pp. 113–140). The most extreme Bearmouth mountainsnail is the ‘‘Clark 1995) as ‘‘a few very small colonies in example of purported additional

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taxonomic diversity in Oreohelix is Taxonomy of the Bearmouth the scientific community. The type of found in Frest and Johannes (1995, pp. Mountainsnail (Oreohelix sp. 3) additional information that may permit 113–139), who proposed that 31 The only additional information about a formal description may include a more additional species or subspecies were the occurrence and taxonomic status of thorough description of the type found in the Interior Columbia Basin. Bearmouth mountainsnail comes from specimen, an evaluation of various lines The Bearmouth mountainsnail Dr. Weaver (Weaver 2010a, 2010b, pers. of evidence (morphological, ecological, (Oreohelix sp. 3) and the Byrne Resort comm.). As described above, she biogeographical, genetic) relevant to its Mountainsnail (Oreohelix sp. 31) were identified two colonies of Oreohelix in taxonomic status, resolution of any among these 31 proposed species or Montana that she believes represent discrepancies in taxonomic subspecies (Frest and Johannes 1995, Bearmouth mountainsnail, based on the nomenclature, or a combination of these (e.g., Weaver 2006, pp. 49–65), and that pp. 115, 139–140). location of one colony and genetic the taxon be accepted as valid by Taxonomic classification of Oreohelix similarity (of mtDNA) of the two colonies (Weaver 2010b, pers. comm.). widely-recognized sources (e.g., snails has been based traditionally on Dr. Weaver observed that genetic Turgeon et al. 1998, entire; ITIS 2010). shell morphology (e.g., Pilsbry 1916, analyses of individuals from these two Taxonomic Status of Byrne Resort entire; Pilsbry 1939, pp. 413–553). colonies (that she believes to represent Mountainsnail (Oreohelix sp. 31) Nonetheless, shell morphology has long Bearmouth mountainsnail) revealed There have been no additional been considered an unreliable approximately 6 percent DNA sequence characteristic for delineating taxonomic collections of Byrne Resort divergence relative to a sister taxon (O. mountainsnail at the location initially units within Oreohelix because of the carinifera) in the same genus (Weaver substantial phenotypic plasticity that described by Frest and Johannes (1995, 2010a, pers. comm.). This level of p. 140) (Hendricks 2010, pers. comm.; exists for shell traits (Pilsbry 1916, p. divergence is consistent with species- Weaver 2010b, pers. comm.). Specimens 340; Chak 2007, pp. 3, 15; Weaver et al. level differences in terrestrial mollusks collected near where Frest and Johannes 2008, p. 908). Phenotypic plasticity is (e.g., Weaver et al. 2008, pp. 913–914). made their collection of Byrne Resort defined as the ability of an individual Thus, there is some evidence to suggest mountainsnail have been tentatively genotype (genetic composition) to that the individuals she sequenced are identified as a variant of an existing produce multiple phenotypes part of a distinct species or subspecies. species (lyrate mountainsnail, Oreohelix (observable characteristics or traits) in Unfortunately, archived individuals haydeni) based on morphological response to its environment. There is collected from the putative type location characteristics (Hendricks 2010, pers. wide agreement among malacologists of Bearmouth mountainsnail (as comm.). To our knowledge, there has (the branch of invertebrate zoology that described in Frest and Johannes 1995, p. been no follow-up analysis of any deals with the study of Mollusca) 115) are not available (Weaver 2010b, specimens collected by Frest and familiar with Oreohelix that relying pers. comm.). Moreover, Frest and Johannes (1995, pp. 139–140). Thus, we exclusively on shell morphology to Johannes did not provide the precise have virtually no information on this designate taxa is problematic location of any of the ‘‘type localities’’ putative species. (McDonald 2010, pers. comm.; Oliver (i.e., location where the specimens that The taxonomic validity of the Byrne 2010, pers. comm.; Weaver 2010a, pers. define the species were collected) for Resort mountainsnail is highly comm.). More robust taxonomic the undescribed species in their 1995 uncertain given that the only report (Frest and Johannes 1995, pp. designations within genus Oreohelix description was based on shell 113–140). Consequently, there remains generally rely on differences in internal morphology, which, as discussed above, uncertainty as to whether the is widely recognized by the scientific anatomy, such as penis morphology ‘‘Bearmouth mountainsnail’’ proposed community as a poor trait for defining (Pilsbry 1916, entire; Pilsbry 1939, pp. by Frest and Johannes (1995, p. 115) taxonomic groups in Oreohelix (Pilsbry 413–553; Chak 2007, p. 15). More represents the same entity that Dr. 1906, p. 340). Moreover, we are not recently, molecular genetic methods Weaver refers to as ‘‘Bearmouth aware of any corroborating information have been used to reconcile taxonomic mountainsnail.’’ concerning the taxonomic status of this designations originally based on Uncertainty notwithstanding, the entity. The Byrne Resort mountainsnail morphological characteristics (e.g., Chak Bearmouth mountainsnail is not is not listed as a valid taxon in the 2007, pp. 21–42; Weaver et al. 2008, included as a valid taxon in the classic classic works by Pilsbry (1916, entire; entire). works by Pilsbry (1916, entire; 1939, 1939, entire), which are still accepted as The basis of the species designations entire), which are still accepted as the the most authoritative publications on for the Bearmouth mountainsnail most authoritative publications on the the taxonomy of Oreohelix; nor is the (Oreohelix sp. 3) and Byrne Resort taxonomy of Oreohelix; nor is the Byrne Resort mountainsnail listed mountainsnail (Oreohelix sp. 31) is shell Bearmouth mountainsnail listed among among the Oreohelix taxa recognized by morphology (Frest and Johannes 1995, the Oreohelix taxa recognized by more more current sources such as the current sources such as the Integrated Council of Systematic Malacologists pp. 115, 139–140). Unfortunately, Frest Taxonomic Information System (ITIS (e.g., Turgeon et al. 1998, p. 143) or the and Johannes never published any of 2010) or the Council of Systematic Integrated Taxonomic Information their putative (presumed or supposed) Malacologists and the American System (ITIS 2010). In short, the entity species designations for Oreohelix Malacological Union (Turgeon et al. referred to as ‘‘Byrne Resort contained in their 1995 report. In some 1998, p. 143 in this compilation of mountainsnail’’ has not been formally cases, species designations by Frest and mollusk taxonomy by scientific experts). described as a species according to Johannes that relied entirely on shell In summary, the entity referred to as the accepted scientific standards, and this morphology were subsequently found to ‘‘Bearmouth mountainsnail’’ has not entity is not widely recognized as a be in error when additional been formally described as a species species or subspecies by the scientific morphological (Weaver 2006, p. 10) or according to accepted scientific community. The type of additional genetic information (Chak 2007, p. 1) standards, and this entity is not widely information that may permit a formal was collected. recognized as a species or subspecies by description may include a more

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thorough description of the type Species Information for the Meltwater while there is some preliminary specimen, an evaluation of various lines Lednian Stonefly indication that the taxonomy of the of evidence (morphological, ecological, genus Lednia will be revised when the Species Description and Taxonomy biogeographical, genetic) relevant to its new specimens are officially described, taxonomic status, resolution of any The meltwater lednian stonefly the meltwater lednian stonefly remains discrepancies in taxonomic (Lednia tumana) is in the monotypic the only species in the genus Lednia nomenclature, or a combination of these genus Lednia (Baumann 1975, p. 19; that is currently recognized by the (e.g., Weaver 2006, pp. 49–65), and that Stewart and Harper 1996, p. 263; Stark scientific community. Consequently, the taxon be accepted as valid by et al. 2009, entire). The genus Lednia based on the information presented widely-recognized sources (e.g., belongs to the phylum Arthropoda, class above, the Service considers Lednia to Turgeon et al. 1998, entire; ITIS 2010). Insecta, order Plecoptera (stoneflies), be a monotypic genus. Therefore, for the family Nemouridae, and subfamily purpose of this finding, we are Finding for the Bearmouth Nemourinae. The family Nemouridae is evaluating the meltwater lednian Mountainsnail (Oreohelix sp. 3) and the largest in the order Plecoptera stonefly, throughout its known range, as Byrne Resort Mountainsnail (Oreohelix (stoneflies), comprising more than 370 a full species in a monotypic genus. sp. 31) species in 17 genera (Baumann 1975, p. The nymph (aquatic juvenile stage) of We have very little information on the 1). In North America, family the meltwater lednian stonefly is dark distribution and abundance of these two Nemouridae comprises 73 species in 13 red-brown on its dorsal (top) surface land snails. In fact, we could not find genera (Stark et al. 2009, entire). The and pink on the ventral (lower) surface, any information on occurrence or even type specimens for the meltwater with light grey-green legs (Baumann and the existence of the species referred to lednian stonefly were collected in the Stewart 1980, p. 658). Mature nymphs as the ‘‘Byrne Resort mountainsnail’’ by Many Glaciers area of Glacier National can range in size from 4.5 to 6.5 Frest and Johannes (1995, p. 139). We Park (Glacier NP), Montana (Baumann millimeter (mm) (0.18 to 0.26 in.) 1982, pers. comm.). The species was have some information, based on recent (Baumann and Stewart 1980, p. 655). originally described by Ricker in 1952 surveys and genetic analyses, that two Adults also are small, ranging in size (Baumann 1975, p. 18), and is colonies of land snails tentatively from 4 to 6 mm (0.16 to 0.24 in.) recognized as a valid species by the identified by a species expert as (Baumann 1975, p. 19). scientific community (e.g., Baumann ‘‘Bearmouth mountainsnail’’ currently 1975, p. 18; Baumann et al. 1977, pp. 7, Biology and Life History exist in the vicinity of the Clark Fork 34; Newell et al. 2008, p. 181; Stark et Plecoptera (stoneflies) are primarily River valley, Montana (Weaver 2010a, al. 2009, entire). Consequently, we associated with clean, cool, running 2010b, pers. comm.). To our knowledge, conclude that the meltwater lednian waters (Stewart and Harper 1996, p. there has never been a systematic stonefly (Lednia tumana) is a valid 217). The Nemourids are usually the analysis of the validity of taxonomic species and, therefore, a listable entity dominant Plecoptera family in arrangements (i.e., subspecies or under section 3(16) of the Act. mountain-river ecosystems, both in species) that have been proposed for Kondratieff and Lechleitner (2002, pp. terms of total biomass and in numbers Oreohelix by Frest and Johannes (1995, 385, 391) reported that specimens of species present (Baumann 1975, p. 1). pp. 113–140). Moreover, neither the thought to be the meltwater lednian Eggs and larvae of all North American Bearmouth mountainsnail nor the Byrne stonefly were collected in Mount species of stoneflies, including the Resort mountainsnail has been formally Rainier National Park (Mount Rainier meltwater lednian stonefly, are aquatic described as a species, and neither is NP), Washington. They also cited a (Stewart and Harper 1996, p. 217). presently recognized as a species or personal communication with a species Nemourid stonefly larvae are typically subspecies by the scientific community expert (R.W. Baumann, Brigham Young herbivores or detritivores, and their (e.g., Pilsbry 1939, entire; Turgeon et al. University, Provo, UT) that similar feeding mode is generally that of a 1998, p. 143; ITIS 2010). specimens also are known from North shredder or collector-gatherer (Baumann Neither the Bearmouth mountainsnail Cascades National Park (North Cascades 1975, p. 1; Stewart and Harper 1996, pp. nor the Byrne Resort mountainsnail is NP), Washington, and a site in the 218, 262). We have no information on recognized as a species or subspecies, California Sierra Nevada (Kondratieff the longevity of the meltwater lednian and their taxonomic statuses are and Lechleitner 2002, pp. 388–389). stonefly, but in general stoneflies can currently uncertain. Consequently, the However, the specimens discovered in complete their life cycles within a single Service does not at this time consider Mount Rainier NP, North Cascades NP, year (univoltine) or in 2 to 3 years the Bearmouth mountainsnail or the and in the Sierra Nevada Mountains of (semivoltine) (Stewart and Harper 1996, Byrne Resort mountainsnail to be California are now believed to represent pp. 217–218). Adult meltwater lednian listable entities under section 3(16) of additional undescribed taxa stoneflies are thought to emerge and the Act (16 U.S.C. 1532(16)) because (presumably in the genus Lednia) that breed in August and September they do not belong to taxa currently await formal description (Baumann (Baumann and Stewart 1980, p. 658; recognized by the scientific community. 2010, pers. comm.; Kondratieff 2010, Giersch 2010b, pers. comm.; MNHP The Service encourages additional pers. comm.; Kondratieff et al. 2006, p. 2010a). scientific investigations that will resolve 463). If these specimens are described as the significant uncertainties concerning species in the genus Lednia, then the Distribution and Abundance the occurrence and taxonomy of genus Lednia would no longer be The current known distribution of the Oreohelix land snails. Because we have considered a monotypic genus. meltwater lednian stonefly is restricted concluded the Bearmouth However, the taxonomy of these to a handful of locations just to the east mountainsnail and the Byrne Resort additional specimens (from Mount and west of the Continental Divide mountainsnail are not listable entities, Rainier NP, North Cascades NP, and in within Glacier NP (Newell et al. 2008, we will not be further evaluating these the Sierra Nevada Mountains of p. 181; National Park Service (NPS) mountainsnails under section 4(a)(1) of California) has not been evaluated or 2009; see Table 1 below). Within the last the Act, and they will not be discussed accepted by the scientific community 13 years, the meltwater lednian stonefly further in this finding. (e.g., Stark et al. 2009, entire). Thus, has been observed in a total of 11

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streams within Glacier NP, at sites collection sites have been in close Baumann and Stewart 1980, p. 658; NPS ranging from 1,628 to 2,378 meters (m) proximity to glaciers. The species can 2009, entire). elevation (5,341 to 7,801 feet (ft)) (NPS attain moderate to high abundance in 2009; see Table 1 below). Most certain locations (e.g., Logan Creek:

TABLE 1—DOCUMENTED OCCURRENCES OF MELTWATER LEDNIAN STONEFLY (LEDNIA TUMANA) DURING THE LAST 13 YEARS. ALL OCCURRENCES ARE WITHIN GLACIER NP, MONTANA. INFORMATION PROVIDED BY NPS (2009) BASED ON DATA COLLECTED BY F. RICHARD HAUER (FLATHEAD LAKE BIOLOGICAL STATION, DIVISION OF BIOLOGICAL SCIENCES, UNIVERSITY OF MONTANA, POLSON) AND JOE GIERSCH (DRUNELLADESIGNS.COM, WEST GLACIER, MON- TANA)

Stream or drainage Year Elevation

East of the Continental Divide (Glacier County, Montana)

Baring Creek a ...... 1998 2,378 m (7,801 ft). 1999 2,173 m (7,129 ft). 2003 2,273 m (7,457 ft). 2009 2,024 m (6,640 ft). Lunch Creek ab ...... 1999 2,173 m (7,129 ft). 2003 2,273 m (7,457 ft). 2009 2,024 m (6,640 ft). Reynolds Creek ab ...... 1997 2,171 m (7,123 ft). 2,170 m (7,119 ft). 2,140 m (7,021 ft). 2,106 m (6,909 ft). 2,165 m (7,103 ft). 1998 2,169 m (7,116 ft). 2,068 m (6,785 ft). 2,099 m (6,886 ft). 2,165 m (7,103 ft). St. Mary River a ...... 1999 2,054 m (6,739 ft). Swiftcurrent Creek a ...... 2007 1,628 m (5,341 ft). Twin Lakes (St. Mary River) ...... 1998 2,265 m (7,431 ft).

West of the Continental Divide (Flathead County, Montana)

Ahern Creek ...... 1998 2,065 m (6,775 ft). Bear Creek ...... 2001 1,696 m (5,564 ft). Hidden Lake (Hidden Creek) ...... 1998 2,302 m (7,552 ft). Logan Creek ab ...... 1998 2,115 m (6,939 ft). 2,031 m (6,663 ft). Mineral Creek ...... 1997 2,017 m (6,617 ft) Collection Location Details a Stream directly associated with a named glacier within that watershed or an unnamed glacier present on a 7.5′ topographic map. b Multiple collections within a stream are itemized by year and elevation.

Although the species has been and additional surveys are needed in temperatures (up to 15 °C (59 °F)) in observed recently only in Glacier NP, order to develop a more thorough certain situations (Hauer et al. 2007, p. experts speculate that suitable habitat understanding of its distribution and 107) for short periods of time (Giersch for the species may extend north into abundance (e.g., Giersch 2010a, 2010b, 2010c, pers. comm.). Most aquatic Waterton Lakes National Park in Canada pers. comm.). In the interim, we invertebrates in stream environments in and south into the Scapegoat-Great conclude based on the available recent the northern Rocky Mountains exhibit Bear-Bob Marshall wilderness areas of survey information that the meltwater very strong elevation (temperature) Montana, or in similar areas of the lednian stonefly is a narrow endemic gradients in their distribution (e.g., northern Rocky Mountains in alpine present only in Glacier NP. Fagre et al. 1997, p. 763; Lowe and snow-melt streams (e.g., Baumann 1982, Habitat Hauer 1999, pp. 1637, 1640, 1642; pers. comm.; Giersch 2010a, pers. The meltwater lednian stonefly is Hauer et al. 2007, p. 110), and occur at comm.). The species was previously found in snow-melt runoff streams in the highest population density in their reported from the Waterton River high-elevation, alpine areas, most preferred temperature range. We system in Alberta (Donald and typically in locations closely linked to presume the meltwater lednian stonefly Anderson 1977, p. 114). However, glacial runoff (Baumann and Stewart exhibits a similar pattern, in terms of surveys conducted in Waterton Lakes 1980, p. 658; MNHP 2010a) or alpine being more likely to be present and National Park (Canada) during 2007 and springs (Hauer et al. 2007, p. 107; more abundant in the small (first order), 2008 did not detect the species (Langor Giersch 2010c, pers. comm.). The cold, snowmelt-driven, alpine streams, 2010, pers. comm.), although it is species is considered a cold-water and less likely to occur farther unclear if the proper habitat was stenotherm restricted to water less than downstream within a drainage in larger surveyed (Johnston 2010, pers. comm.). (<) 10 degrees Celsius (°C) (< 50 degrees habitats (second order and larger In general, little information exists Fahrenheit (°F)) (MNHP 2010a), but streams) with warmer water about the meltwater lednian stonefly, apparently it can tolerate higher water temperatures. In general, the alpine

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streams inhabited by the meltwater Climate Change et al. 2005, entire; Isaak et al. 2010, lednian stonefly are presumed to have Climate is influenced primarily by entire; Kaushal et al. 2010, entire). For very low nutrient concentrations (low long-term patterns in air temperature ectothermic organisms like aquatic nitrogen and phosphorus), reflecting the and precipitation. The invertebrates, temperature sets basic nutrient content of the glacial or snow- Intergovernmental Panel on Climate constraints on species’ distribution and melt source (Hauer et al. 2007, pp. 107– Change (IPCC) has concluded that physiological performance (Fagre et al. 108). The daytime microhabitat climate warming is unequivocal, and is 1997, p. 763; Lowe and Hauer 1999, pp. preferences of meltwater lednian now evident from observed increases in 1637, 1640, 1642; Hauer et al. 2007, p. stonefly nymphs are the underside of global average air and ocean 110). Stream hydrology not only affects rocks or larger pieces of bark or wood temperatures, widespread melting of the structure of aquatic systems across (Baumann and Stewart 1980, p. 658). snow and ice, and rising global mean space and time, but influences the life sea level (IPCC 2007, pp. 30–31). history and phenology (timing of life- Summary of Information Pertaining to cycle events) of aquatic invertebrates Continued greenhouse gas emissions at the Five Factors for the Meltwater such as stoneflies (Stewart and Harper or above current rates are expected to Lednian Stonefly 1996, pp. 217–218). cause further warming (IPCC 2007, p. Section 4 of the Act (16 U.S.C. 1533) Significant trends in water 30). The years from 1995 through 2006 and its implementing regulations (50 temperature and stream flow have been rank among the 12 warmest years in the CFR 424) set forth procedures for adding observed in the western United States instrumental record of global average species to the Federal Lists of (Stewart et al. 2005, entire; Kaushal et near-surface temperature since 1850 Endangered and Threatened Wildlife al. 2010, entire), and increased air (Independent Scientific Advisory Board and Plants. Under section 4(a)(1) of the temperatures and changes in (ISAB) 2007, p. 7; IPCC 2007, p. 30). Act, a species may be determined to be precipitation are partially responsible. During the last century, mean annual air endangered or threatened based on any During the past 50 to 100 years in the temperature increased by approximately of the following five factors: ° ° western United States, the timing of (A) The present or threatened 0.6 C (1.1 F) (IPCC 2007, p. 30). runoff from snowmelt has shifted to destruction, modification, or Warming appears to have accelerated in occur 1 to 4 weeks earlier (Regonda et curtailment of its habitat or range; recent decades, as the linear warming al. 2005, p. 380; Stewart et al. 2005, pp. trend over the 50 years from 1956 to (B) Overutilization for commercial, ° ° 1136, 1141; Hamlet et al. 2007, p. 1468), recreational, scientific, or educational 2005 (average 0.13 C or 0.24 F per presumably as a result of increased purposes; decade) is nearly twice that for the 100 temperatures (Hamlet et al. 2007, p. (C) Disease or predation; years from 1906 to 2005 (IPCC 2007, p. 1468), increased frequency of melting (D) The inadequacy of existing 30). Climate change scenarios estimate (Mote et al. 2005, p. 45), and decreased regulatory mechanisms; or that the mean air temperature could snowpack (Mote et al. 2005, p. 41). ° ° (E) Other natural or manmade factors increase by over 3 C (5.4 F) by 2100 Trends in decreased water availability affecting its continued existence. (IPCC 2007, pp. 45–46). The IPCC also also are apparent across the Pacific In making this finding, information projects there will likely be regional Northwest. For example, Luce and pertaining to meltwater lednian stonefly increases in the frequency of hot Holden (2009, entire) found a tendency in relation to the five factors provided extremes, heat waves, and heavy toward more extreme droughts at 72 in section 4(a)(1) of the Act is discussed precipitation, as well as greater warming percent of the stream flow gages they below. in high northern latitudes (IPCC 2007, examined across Idaho, Montana, In considering what factors might p. 46). Oregon, and Washington. constitute threats to a species, we must We recognize that there are scientific The western United States appears to look beyond the exposure of the species differences of opinion on many aspects be warming faster than the global to a factor to evaluate whether the of climate change, including the role of average. In the Pacific Northwest, species may respond to the factor in a natural variability in climate. In our regionally averaged temperatures have way that causes actual impacts to the analysis, we rely primarily on synthesis risen 0.8 °C (1.5 °F) over the last century species. If there is exposure to a factor documents (IPCC 2007, entire; ISAB and as much as 2 °C (4 °F) in some and the species responds negatively, the 2007, entire; Karl et al. 2009, entire) that areas. Since 1900, the mean annual air factor may be a threat and we attempt present the consensus view of a large temperature for Glacier NP and the to determine how significant a threat it number of experts on climate change surrounding region has increased 1.33 is. The threat is significant if it drives, from around the world. We find that °C, which is 1.8 times the global mean or contributes to, the risk of extinction these synthesis reports, as well as the increase (U.S. Geological Survey (USGS) of the species such that the species scientific papers used in, or resulting 2010, p. 1). Mean annual air warrants listing as endangered or from, those reports represent the best temperatures are projected to increase threatened as those terms are defined in available scientific information we can by another 1.5 to 5.5 °C (3 to 10 °F) over the Act. use to inform our decision. Where the next 100 years (Karl et al. 2009, p. possible, we use empirical data or 135). Warming also appears to be very Factor A. The Present or Threatened projections specific to Glacier NP and pronounced in alpine regions globally Destruction, Modification, or the surrounding area and focus on (e.g., Hall and Fagre 2003, p. 134 and Curtailment of Its Habitat or Range observed or expected effects on stream references therein). The known distribution of the systems, as this area includes the known For the purposes of this finding, we meltwater lednian stonefly is entirely distribution of the meltwater lednian consider the foreseeable future for within the boundaries of Glacier NP. stonefly. anticipated environmental changes such The ecosystems in most national parks Water temperature and hydrology as reductions in glacial meltwater and are considered to be comparatively (stream flow) influence many of the increases in stream temperatures to be pristine, and the Glacier NP is a basic physical and biological processes approximately 40 years based on two relatively unaltered landscape when in aquatic systems, and both are factors. First, various global climate compared to other areas of western sensitive to environmental changes that models (GCMs) and emissions scenarios North America (Fagre 2005, p. 2). result from climate change (e.g., Stewart give consistent predictions within that

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timeframe (Ray et al. 2010, p. 11). shrank at more than twice that rate (59.7 ephemeral streamflow also is expected Second, the effect of climate change on percent) (USGS 2010). to reduce the extent of habitat suitable glaciers in Glacier NP has been modeled Hall and Fagre (2003, entire) modeled for the meltwater lednian stonefly; within that time range (e.g., Hall and the effects of climate change on glaciers however, the actual response may be Fagre 2003, entire). We used a similar in Glacier NP’s Blackfoot-Jackson basin more complex in this scenario. For foreseeable future time period when using then-current climate assumptions example, adults of the species emerge considering climate change projections (doubling of atmospheric carbon (transition from aquatic larvae to in other 12-month findings for species dioxide by 2030). Current climate terrestrial winged adults) and reproduce in western North America (see change publications consider scenarios in the short time period in August and American pika (Ochotona princeps), 75 with higher anticipated carbon dioxide September when the streams are not FR 6438, February 9, 2010; Arctic concentrations and associated covered with seasonal snowpack. The grayling (Thymallus arcticus), 75 FR temperature changes. However, we are species is thus adapted to reproduce in 54708, September 8, 2010). not aware of any other published a very narrow ecological window. If the While projected patterns of warming studies using more recent climate stream only flows seasonally, the across North America are generally scenarios that speak directly to species may still be able to complete its consistent across different GCMs and anticipated conditions in Glacier NP, so life cycle if the nymph (larval) stage can emissions scenarios (Ray et al. 2010, p. we use Hall and Fagre’s predictions in withstand seasonal stream drying. We 22), there tends to be less agreement our analysis. Under this scenario, they do not know whether the species can among models for whether mean annual predicted that increases in winter complete its entire life cycle within 1 precipitation will increase or decrease, precipitation would not be able to buffer year (univoltine) or across more than 1 but the models seem to indicate an glacial shrinking, and the Blackfoot- year (semivoltine), nor do we have increase in precipitation in winter and Jackson glaciers, which are among the projections for which streams may dry a decrease in summer (Ray et al. 2010, largest in Glacier NP, would disappear seasonally in Glacier NP. Therefore, at pp. 22–23). In the foreseeable future, entirely by 2030 (Hall and Fagre 2003, this time we cannot accurately predict natural variation will likely confound a pp. 137–138). the response of the species in cases Glacial shrinking varies by clear prediction for precipitation based where streams change from perennial to topography (structure and position of on current climate models (Ray et al. ephemeral. However, we do presume land underlying the glaciers), with the 2010, p. 29). Although there is that this change will, at a minimum, result that glaciers shrink at different considerable uncertainty about how reduce the distribution and abundance rates (e.g., Key et al. 2002, p. J370; Hall climate will evolve at any specific of the species. and Fagre 2003, p. 136). Given the Loss of glaciers also may indirectly location, statistically downscaled greater relative rate of shrinkage affect alpine streams by changing the climate projection models (models that observed in smaller glaciers (e.g., USGS riparian vegetation and nutrient cycling predict climate at finer spatial 2010), we presume that if Hall and in stream ecosystems. For example, the resolution than GCMs) for the western Fagre’s projections are correct, then reduced snowpacks that lead to glacier United States also support widespread nearly all glaciers should be gone from recession are predicted to allow high- warming, with warmer temperature Glacier NP by 2030. We base our elevation trees to become established zones shifting to the north and upward analysis as to whether climate change above the current treeline and in in elevation (Ray et al. 2010, pp. 23–24). threatens the meltwater lednian stonefly subalpine meadows, and thus to reduce Based on the information described on this assumption. the diversity of herbaceous plants (Hall above, we believe that environmental The consequences of glacier shrinking and Fagre 2003, pp. 138–139). Changes changes resulting from climate change and glacier loss to aquatic systems in riparian vegetation (such as a shift may affect the meltwater lednian inhabited by the meltwater lednian from deciduous to coniferous stonefly through two primary stonefly in Glacier NP are expected to be vegetation) may affect nutrient cycling mechanisms: (1) Loss of glaciers, and significant (e.g., Fagre 2005, p. 8). in headwater streams and the quality of (2) changes in hydrology and increased Glaciers act as water banks, whose food resources available to herbivorous water temperature. continual melt helps regulate stream aquatic insects (e.g., Hisabae et al. 2010, Glacier Loss water temperatures and maintain pp. 5–7), such as the meltwater lednian streamflows during late summer or stonefly and other aquatic Environmental changes resulting from drought periods (Hauer et al. 2007, p. macroinvertebrates. climate change are assumed to be 107; USGS 2010). Loss of glaciers may directly related to the well-documented lead to direct dewatering of headwater Changes to Streamflow and Water loss of glaciers in Glacier NP (e.g., Hall stream reaches, thus desiccating Temperature and Fagre 2003, entire; Fagre 2005, (drying) habitats currently occupied by Reduced water volume of snowmelt entire). Glacier NP contained lednian stoneflies that are often in close runoff from glaciers (Fagre 2005, p. 7), approximately 150 glaciers larger than proximity to glaciers (e.g., Baumann and combined with earlier runoff (e.g., Fagre 0.1 square kilometer (25 acres) in size Stewart 1980, p. 658). Permanent 2005, p. 1) and increases in when established in 1910, but presently desiccation (i.e., no streamflow) temperatures expected under climate only 25 glaciers larger than 0.1 square resulting from loss of glaciers is change (Karl et al. 2009, p. 135), may kilometers in size (25 acres) remain in expected to result directly in the loss of result in water temperatures above the the park (Fagre 2005, pp. 1–3; USGS suitable habitat for the meltwater physiological limits for survival or 2005, 2010). Between 1966 and 2006, lednian stonefly and the extirpation of optimal growth for the meltwater the 25 largest glaciers (those that are populations that are directly dependent lednian stonefly, which is a cold-water presently believed to be larger than 0.1 on surface runoff from melting glaciers. species (MNHP 2010a). Given the strong square kilometer (25 acres) in area) In some cases, streams might change temperature gradients that influence the shrank by an average of 26.4 percent, from perennial (always flowing) to distribution of aquatic invertebrates whereas smaller glaciers (those that are ephemeral (only flowing seasonally) as (Fagre et al. 1997, p. 763; Lowe and presently believed to be smaller than 0.1 glaciers disappear (Hauer et al. 1997, p. Hauer 1999, pp. 1637, 1640, 1642; square kilometer (25 acres) in area) 909). A transition from perennial to Hauer et al. 2007, p. 110) and our

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assumption that the meltwater lednian changes resulting from climate change Logan, Lunch, and Baring Creeks; see stonefly responds similarly to these will likely result in the extirpation of Table 1 above) are all upstream from the types of gradients, we expect that there populations of the meltwater lednian road. We anticipate that any disturbance will be major changes in invertebrate stonefly because of stream drying and to aquatic habitats from road communities, with species that increased water temperatures, and that construction would occur in the currently occupy more downstream there will be substantial reductions in immediate vicinity of the construction reaches shifting their distributions to the amount of suitable habitat for the and that any impacts (i.e., sediment higher elevations to track changing species relative to its current range. input) would be translated downstream. thermal regimes (e.g., Fagre 2005, p. 7). Effects on populations found in spring Thus, we conclude that road One likely result is the displacement or habitats may lag behind those found in maintenance does not constitute a threat extirpation or both of stenothermic stream habitats directly associated with to the meltwater lednian stonefly or its species that occupy headwater stream melting glaciers or snowfields. habitat now or in the foreseeable future. reaches (such as the meltwater lednian Chemical, hydrologic, and thermal We do not have any information stonefly), due to thermal conditions that conditions of both habitat types are indicating maintenance and become unsuitable, encroaching aquatic ultimately influenced by melting snow improvement of other Glacier NP invertebrate species that may be and ice, but conditions in spring facilities and structures is affecting the superior competitors, or changed habitats are more stable (e.g., Hauer et species. Most documented occurrences thermal conditions that may favor the al. 2007, p. 107; Giersch 2010c, pers. of meltwater lednian stonefly are in encroaching species in competitive comm.) and should change more slowly remote locations upstream from human- interactions between the species (so- because their groundwater sources are built structures; thus we conclude that called condition-specific competition). storing water from melted snow and ice. maintenance and improvement of other Consequently, we infer that changes in Ultimately, spring habitats might also Glacier NP facilities and structures does the timing and volume of streamflow dry as their groundwater sources are not constitute a threat to the meltwater coupled with increased summer water depleted, and not replenished by glacial lednian stonefly or its habitat now or in temperatures will reduce the extent of meltwater. the foreseeable future. The impacts of environmental suitable habitat and result in the Glacier National Park Visitor Impacts extirpation of some meltwater lednian changes resulting from climate change Between 2000 to 2008, Glacier NP stonefly populations. will likely continue within the foreseeable future (40 years). Due to the averaged more than 1.8 million visitors In summary, we expect environmental magnitude and extent of the effects of annually (NPS 2008). Many of the recent changes resulting from climate change the environmental changes resulting collection sites for the meltwater to affect the meltwater lednian stonefly from climate change, we conclude that lednian stonefly (e.g., Logan and through loss of glaciers, which can lead the environmental changes resulting Reynolds Creeks; see Table 1 above) are to the permanent or seasonal drying of from climate change constitute a near visitor centers or adjacent to currently occupied habitats, and significant threat to the meltwater popular hiking trails. Theoretically, through interrelated alterations to lednian stonefly in the foreseeable human activity (wading) in streams by existing hydrologic and thermal future. anglers or hikers could disturb regimes, which will reduce the extent of meltwater lednian stonefly habitat. habitat suitable for this species because Maintenance and Improvement of However, we consider it unlikely that it has very specific thermal Glacier National Park Infrastructure many Glacier NP visitors would actually requirements (i.e., it is a cold-water Glacier NP is managed to protect wade in stream habitats where the obligate). Environmental changes natural and cultural resources, and the species has been collected, because the resulting from climate change are landscape within the park is relatively sites are in small, high-elevation streams ongoing based on the documented pristine. However, the Glacier NP does situated in rugged terrain, and most shrinking of glaciers in Glacier NP, and include a number of human-built would not be suitable for angling. In are expected to continue in the facilities and structures, such as the addition, the sites are typically snow foreseeable future in Glacier NP (e.g., Going-to-the-Sun Road (which bisects covered into late July or August (Giersch Fagre and Hall 2003, entire) and across the Glacier NP) and numerous visitor 2010a, pers. comm.), and the alpine western North America (USGS 2010, centers, trailheads, overlooks, and areas begin to accumulate snowpack in p.1; Karl et al. 2009, p. 135). lodges (e.g., NPS 2003a, pp. S3, 11). the fall, so the sites occupied by the Consequently, we conclude that the Maintenance and improvement of these stonefly are not accessible for more than threat of current and future facilities and structures could a few months. We also note that the environmental changes resulting from conceivably lead to disturbance of the most accessible collection sites in Logan climate change occurs over the entire natural environment. Creek near the Logan Pass Visitor Center range of the species. This threat has One major project initiated in 2003, and the Going-to-the-Sun Road (so likely reduced the amount of suitable and that is ongoing as of 2011, is the called ‘‘Jones Flat’’ at Oberlin Bend) are habitat for the meltwater lednian improvement of the Going-to-the-Sun currently closed to public use and entry stonefly, based on the documented Road (NPS 2003a; 2003b). This road to protect resident vegetation (NPS extent of glacial melting. However, data parallels or bisects a number of streams 2010, pp. J5, J24). We conclude that on the species is sparse and limited to in the Glacier NP including McDonald, impacts to the meltwater lednian a handful of observations (e.g., see Table Logan, Lunch, Siyeh, and Baring Creeks stonefly and its habitat from public 1 above). Thus, we have no empirical (NPS 2003a, p. 134). Localized land visitors to Glacier NP do not constitute basis for evaluating whether there are disturbance associated with a threat now or in the foreseeable future. any trends in the occurrence or construction activities could lead to abundance of the species, nor can we introduction of sediment into stream Summary of Factor A speak to whether environmental channels (e.g., NPS 2003a, pp. S18–S19, Climate change, and the associated changes resulting from climate change 74). However, the collection sites for the effects of glacier loss, reduced have actually affected populations. We meltwater lednian stonefly in streams streamflows, and increased water reason that future environmental adjacent to or bisected by the road (e.g., temperatures, is expected to

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significantly reduce the occurrence of purposes to be a threat to the meltwater various project alternatives, any adverse populations and extent of suitable lednian stonefly. environmental effects which cannot be habitat for the meltwater lednian avoided, and any irreversible or Factor C. Disease or Predation stonefly in Glacier NP in the foreseeable irretrievable commitments of resources future. Nearly all known recent We are not aware of any diseases that involved (40 CFR 1502). The NEPA occurrences of the meltwater lednian affect the meltwater lednian stonefly. itself is a disclosure law, and does not stonefly are in close proximity to Therefore, we do not consider disease to require subsequent minimization or glaciers that are projected to disappear be a threat to the species now or in the mitigation measures by the Federal during the next 20 years. Consequently, foreseeable future. agency involved. Although the NPS may we expect that the environmental We presume that nymph and adult include conservation measures for changes resulting from climate change meltwater lednian stoneflies may meltwater lednian stonefly or any other will significantly alter the habitat of all occasionally be subject to predation by species as a result of the NEPA process, extant populations of the meltwater bird species such as the American any such measures are typically lednian stonefly, and we conclude that dipper (Cinclus mexicanus). The voluntary in nature and are not required the loss of glaciers represents a high- American dipper prefers to feed on by NEPA. intensity threat (i.e., one that results in aquatic invertebrates in fast-moving, National Park Service Organic Act dramatic changes to the species’ habitat clear, alpine streams (MNHP 2010b), and distribution) and that this threat is, and the species is native to Glacier NP. The NPS Organic Act of 1916 (16 and will continue to be, large in scope As such, predation by American dipper U.S.C. 1 et seq.), as amended, states that (most, if not all, known populations will on the meltwater lednian stonefly the NPS ‘‘shall promote and regulate the be affected) now and into the would represent a natural ecological use of the Federal areas known as foreseeable future. The significant interaction in the Glacier NP. We have national parks, monuments, and reduction in glacier size observed no evidence that the extent of such reservations * * * to conserve the during the past 40 years is evidence that predation, if it occurs, represents any scenery and the national and historic the environmental changes resulting population-level threat to the meltwater objects and the wild life therein and to from climate change also may represent lednian stonefly. Therefore, we do not provide for the enjoyment of the same a current threat to this species, but we consider predation to be a threat to the in such manner and by such means as do not have any information on trends species now or in the foreseeable future. will leave them unimpaired for the in the occurrence of meltwater lednian In summary, there is currently no enjoyment of future generations.’’ The stonefly populations or changes in scientific evidence to indicate that the current distribution of the meltwater densities of specific populations to meltwater lednian stonefly is affected by lednian stonefly is entirely within the confirm this. In addition, we anticipate any diseases, or that any avian boundaries of Glacier NP, so the NPS that effects of the environmental predation that occurs constitutes an Organic Act is presumed to be one changes resulting from climate change abnormal (above background-level) Federal law of particular relevance to on the species will become more predator-prey interaction likely to have the species. Although Glacier NP does pronounced, or that they will accelerate adverse population-wide effects. not have a management plan specific to in the foreseeable future, as glaciers Therefore, we do not find disease or the meltwater lednian stonefly, the melt and eventually disappear in predation to be threats to the meltwater habitats occupied by the species remain Glacier NP. In conclusion, we find that lednian stonefly now or in the relatively pristine and generally free the meltwater lednian stonefly is likely forseeable future. from direct human impacts from Glacier to become in danger of extinction in the NP visitors (see discussion under Factor Factor D. Inadequacy of Existing foreseeable future because of the A). We also note that the most Regulatory Mechanisms environmental changes resulting from accessible meltwater lednian collection climate change. The Act requires us to examine the sites in Logan Creek near the Logan Pass adequacy of existing regulatory Visitor Center and the Going-to-the-Sun Factor B. Overutilization for mechanisms with respect to those Road (so called ‘‘Jones Flat’’ at Oberlin Commercial, Recreational, Scientific, or existing and foreseeable threats that Bend) are currently closed to public use Educational Purposes place the meltwater lednian stonefly in and entry to protect resident vegetation We are not aware of any threats danger of becoming either endangered under Glacier NP management involving the overutilization or or threatened. The currently regulations (NPS 2010, pp. J5, J24). We collection of the meltwater lednian documented distribution of the species believe that the NPS Organic Act stonefly (Lednia tumana) for any is within the boundaries of Glacier NP, provides adequate protection from the commercial, recreational, scientific, or which is under the jurisdiction of the species and its habitat being directly educational purposes at this time. We National Park Service (NPS). Thus, there destroyed or modified by most human are aware that specimens are are a number of Federal laws and activities, including visitor use and occasionally collected for scientific regulations that may be relevant. development. However, the NPS purposes to determine its distribution Organic Act does not address the National Environmental Policy Act and abundance (e.g., Baumann and primary threat to the species of habitat Stewart 1980, pp. 655, 658; NPS 2009); All Federal agencies are required to loss resulting from the environmental however, the species is observed to be adhere to the National Environmental changes due to climate change. relatively abundant in preferred habitats Policy Act (NEPA) of 1970 (42 U.S.C. Therefore, the Organic Act does not (e.g., NPS 2009). We have no 4321 et seq.) for projects they fund, constitute an adequate regulatory information that suggests past authorize, or carry out. The Council on mechanism for this threat. collections, current collections, or any Environmental Quality’s regulations for collections in the foreseeable future will implementing NEPA (40 CFR 1500– Clean Air Act result in population-level effects to the 1518) state that, when preparing On December 15, 2009, the U.S. species. Consequently, we do not environmental impact statements, Environmental Protection Agency (EPA) consider overutilization for commercial, agencies shall include a discussion on published in the Federal Register (74 recreational, scientific, or educational the environmental impacts of the FR 66496) a rule titled, ‘‘Endangerment

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and Cause or Contribute Findings for changes in meltwater lednian stonefly affecting the species’ continued Greenhouse Gases under Section 202(a) habitat that are likely to occur in the existence that present a current or of the Clean Air Act.’’ In this rule, the foreseeable future. Consequently, we potential threat in the foreseeable future EPA Administrator found that the conclude that existing regulatory to the meltwater lednian stonefly, but current and projected concentrations of mechanisms are not adequate to address we do consider the interaction of the the six long-lived and directly emitted the threat of habitat loss and species’ restricted range with the threat greenhouse gases—carbon dioxide, modification resulting from the of habitat loss in the foreseeable future methane, nitrous oxide, environmental changes due to climate to be a threat to the species under this hydrofluorocarbons, perfluorocarbons, change to the meltwater lednian factor. and sulfur hexafluoride—in the stonefly in the foreseeable future. atmosphere threaten the public health Finding for the Meltwater Lednian and welfare of current and future Factor E. Other Natural or Manmade Stonefly Factors Affecting The Species’ generations; and that the combined As required by the Act, we considered Continued Existence emissions of these greenhouse gases the five factors in assessing whether the from new motor vehicles and new motor Restricted Range and Stochastic meltwater lednian stonefly is vehicle engines contribute to the (Random) Events endangered or threatened throughout all greenhouse gas pollution that threatens The meltwater lednian stonefly is or a significant portion of its range. We public health and welfare (74 FR currently considered to be a narrow carefully examined the best scientific 66496). In effect, the EPA has concluded endemic found only within Glacier NP. and commercial information available that the greenhouse gases linked to At present, the species’ restricted range regarding the past, present, and future climate change are pollutants, whose threats faced by the species. We emissions can now be subject to the makes the species vulnerable to extirpation by localized disturbances or reviewed the petition, information Clean Air Act (42 U.S.C. 7401 et seq.; available in our files, other available see 74 FR 66496). However, specific environmental conditions, such as fire, flood, and drought. We have no published and unpublished regulations to limit greenhouse gas information, and we consulted with emissions were only proposed in 2010. information on the specific effects of any of these disturbances on the recognized experts and other Federal At present, we have no basis to and State agencies. conclude that implementation of the meltwater lednian stonefly, nor any The meltwater lednian stonefly is a Clean Air Act in the foreseeable future information on the ability of the species narrowly distributed endemic presently (40 years, based on global climate to recover from disturbance or disperse known to occur in a small number of projections) will substantially reduce to new habitats. However, in general, cold, snowmelt- or glacier-fed, high- the current rate of global climate change organisms of alpine stream segments alpine streams in Glacier NP, Montana. through regulation of greenhouse gas may be isolated by specific thermal or Our status review identified threats to emissions. Thus, we conclude that the habitat criteria that make transfer from the species related to Factors A, D, and Clean Air Act does not adequately one stream to another difficult despite E. In particular, under Factor A, the address the primary threat to the the physical connections that exist in meltwater lednian stonefly, namely the dendritic stream networks (e.g., Hauer et melting of glaciers in Glacier NP is anticipated loss of thermally and al. 2007, pp. 108–110). We presume that considered a threat to the species, now hydrologically suitable habitat as a the species’ restricted range does not and in the foreseeable future, because result of the melting of glaciers and constitute a threat in itself for the loss of glaciers is expected to alter the other environmental changes that result meltwater lednian stonefly, especially thermal and hydrologic regimes of high- from climate change in Glacier NP. as it occupies habitats that are generally alpine streams occupied by the species. considered pristine and that should be Higher water temperatures, seasonal or Summary of Factor D comparatively resistant and resilient to permanent stream dewatering, and The existing regulatory mechanisms, disturbance compared to more changes in the timing and volume of especially the NPS Organic Act, appear intensively managed landscapes. We do snowmelt may change the existing to adequately protect the pristine nature not consider the species’ restricted habitat such that it no longer satisfies of Glacier NP and presumably the high- range to be a threat at the present time, the ecological and physiological alpine streams inhabited by the but we do anticipate that the species’ requirements of the species. While meltwater lednian stonefly. Thus, at a restricted range may interact with the existing regulatory mechanisms provide local or regional level we have no anticipated environmental changes adequate protection for the meltwater evidence that such regulatory resulting from the effects of climate lednian stonefly and its habitat from mechanisms are inadequate to protect change to increase the risk of direct destruction or modification the species now or in the foreseeable extirpation, and therefore to become a resulting from most human activities, future, and we expect that meltwater threat in the foreseeable future. the existing regulatory mechanisms do lednian stonefly habitat in Glacier NP not address the primary threat to the will be generally protected from direct Summary of Factor E species, which is habitat loss and human disturbance. However, we The restricted range of the meltwater modification resulting from consider habitat loss and modification lednian stonefly does not necessarily environmental changes caused by global resulting from the environmental constitute a threat in itself. However, climate change. Thus, under Factor D, changes due to climate change to the restricted range in concert with the we conclude the existing regulatory constitute the primary threat to the threat of habitat loss and modification mechanisms do not adequately address species. The United States is only now resulting from the environmental the threat of habitat loss and beginning to address global climate changes due to climate change is modification in the foreseeable future. change through the regulatory process expected to increase the vulnerability of In addition, under Factor E we conclude (e.g., Clean Air Act). We have no the species, and thus we anticipate this that the restricted range of the species, information on what regulations may will become a threat in the foreseeable while not a threat by itself, is expected eventually be adopted, and when future. We are not aware of any to interact with the threat of habitat loss implemented, if they would address the additional natural or manmade factors and modification to increase the

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vulnerability of the species in the modification, or curtailment of its identified threats include inadequate forseeable future. habitat resulting from climate change, regulatory mechanisms for addressing On the basis of the best scientific and and the inadequacy of existing the environmental changes resulting commercial information available, we regulatory mechanisms to address from climate change, and the interaction find that listing of the meltwater lednian threats from climate change. of the species’ restricted range with the stonefly as endangered or threatened is Under the Service’s guidelines, the threat of habitat loss resulting from warranted. We will make a magnitude of threat is the first criterion climate change. These threats act in determination on the status of the we look at when establishing a listing concert with climate change, and so species as endangered or threatened priority. The guidelines indicate that they also are not imminent. We expect when we prepare a proposed listing species with the highest magnitude of the threat of climate change to intensify determination. However, as explained threat are those species facing the in the foreseeable future based on in more detail below (see Preclusion greatest threats to their continued projections of air temperature increases and Expeditious Progress section), an existence. These species receive the from current global climate models and immediate proposal of a regulation highest listing priority. We consider the the predicted melting of all glaciers in implementing this action is precluded threats that the meltwater lednian Glacier NP by the year 2030. Therefore, by higher priority listing actions, and stonefly faces from melting glaciers and based on our LPN guidelines, the threats progress is being made to add or remove other environmental changes that result are not imminent (ongoing). qualified species from the Lists of from climate change to be high in The third criterion in our LPN Endangered and Threatened Wildlife magnitude because of the recent guidelines is intended to devote and Plants. observations of glacial ablation resources to those species representing We have reviewed the available (shrinking) in Glacier NP and the highly distinctive or isolated gene pools information to determine if the existing projections that all glaciers in Glacier as reflected by taxonomy. The meltwater and foreseeable threats render the NP may disappear in the next 20 years, lednian stonefly (Lednia tumana) is a species at risk of extinction now, such and because we expect all known valid taxon at the species level and is that issuing an emergency regulation populations of the meltwater lednian currently recognized as a monotypic temporarily listing the species, under stonefly to be affected by these changes. genus; thus it receives a higher priority section 4(b)(7) of the Act, is warranted. Under our LPN guidelines, the second than a species or subspecies. We determined that issuing an criterion we consider in assigning a Therefore, we have assigned the emergency regulation temporarily listing priority is the immediacy of meltwater lednian stonefly an LPN of 4 listing the species is not warranted at threats. This criterion is intended to this time, because the species is not ensure that species facing actual, based on our determination that the under immediate threat of extinction. identifiable threats are given priority threats are high in magnitude but not Glaciers still exist in Glacier NP and are over those for which threats are only imminent, and because the species is expected to be present through the next potential or for those that are recognized as a monotypic genus. decade. However, if at any time we intrinsically vulnerable but are not We will continue to monitor the determine that issuing an emergency known to be presently facing such threats to the meltwater lednian stonefly regulation temporarily listing the threats. The significant reduction in and the species’ status on an annual meltwater lednian stonefly is warranted, glacier sizes in Glacier NP observed basis, and should the taxonomic status we will initiate the action at that time. during the past few decades and the or the magnitude or imminence of the changes in hydrologic patterns and threats change, we will revisit our Listing Priority Number water temperatures attributed to climate assessment of its LPN. The Service adopted guidelines on change suggests that habitat loss and Because we have assigned the September 21, 1983 (48 FR 43098), to modification may represent a current meltwater lednian stonefly a LPN of 4, establish a rational system for utilizing threat to the species. Because of its work on a proposed listing available resources for the highest apparent dependence on glacial determination for the meltwater lednian priority species when adding species to meltwater for survival, the meltwater stonefly is precluded by work on higher the Lists of Endangered or Threatened lednian stonefly is intrinsically priority listing actions with absolute Wildlife and Plants or reclassifying vulnerable to threats from the statutory, court-ordered, or court- species listed as threatened to environmental changes resulting from approved deadlines and on final listing endangered status. These guidelines, climate change. However, we do not determinations for those species that titled ‘‘Endangered and Threatened have sufficient empirical information on were proposed for listing with funds Species Listing and Recovery Priority the meltwater lednian stonefly to from FY 2010. This work includes all Guidelines,’’ address the immediacy and evaluate whether there are any trends in the actions listed in the tables below magnitude of threats, and the level of the occurrence or abundance of the under Preclusion and Expeditious taxonomic distinctiveness by assigning species, nor do we have any information Progress. priority in descending order to about the species’ response to such Preclusion and Expeditious Progress monotypic genera (genus with one changes. Thus, we cannot conclude that species), full species, and subspecies (or the species is currently actually facing Preclusion is a function of the listing equivalently, distinct population the threat of habitat loss and priority of a species in relation to the segments of vertebrates). modification, which would be necessary resources that are available and the cost As a result of our analysis of the best to make a finding that the threat of and relative priority of competing available scientific and commercial environmental changes resulting from demands for those resources. Thus, in information, we assigned the meltwater climate change is imminent. any given fiscal year (FY), multiple lednian stonefly a Listing Priority Environmental changes resulting from factors dictate whether it will be Number (LPN) of 4 based on our finding climate change are reasonably certain to possible to undertake work on a listing that the species faces threats that are of occur, but we have no empirical proposal regulation or whether high magnitude but are not imminent. (documented) evidence that the promulgation of such a proposal is These primary threats include the resulting threat to the species is precluded by higher-priority listing present or threatened destruction, imminent (ongoing). The other actions.

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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 Act; critical habitat petition subcap funds to fund proposed listing a rulemaking. findings; proposed and final rules determinations for high-priority In FY 2011, on March 18, 2011, designating critical habitat; and candidate species. In other FYs, while Congress passed a continuing resolution litigation-related, administrative, and we were unable to use any of the critical which provides funding at the FY 2010 program-management functions habitat subcap funds to fund proposed enacted level through April 8, 2011. (including preparing and allocating listing determinations, we did use some Until Congress appropriates funds for budgets, responding to Congressional of this money to fund the critical habitat FY 2011 at a different level, we will and public inquiries, and conducting portion of some proposed listing fund listing work based on the FY 2010 public outreach regarding listing and determinations so that the proposed amount. Thus, at this time in FY 2011, critical habitat). The work involved in listing determination and proposed the Service anticipates an appropriation preparing various listing documents can critical habitat designation could be of $22,103,000 for the listing program be extensive and may include, but is not combined into one rule, thereby being based on FY 2010 appropriations. Of limited to: Gathering and assessing the more efficient in our work. At this time, that, the Service anticipates needing to best scientific and commercial data for FY 2011, we do not know if we will dedicate $11,632,000 for determinations available and conducting analyses used be able to use some of the critical of critical habitat for already listed as the basis for our decisions; writing habitat subcap funds to fund proposed species. Also $500,000 is appropriated and publishing documents; and listing determinations. for foreign species listings under the obtaining, reviewing, and evaluating We make our determinations of Act. The Service thus has $9,971,000 public comments and peer review preclusion on a nationwide basis to available to fund work in the following comments on proposed rules and ensure that the species most in need of categories: compliance with court orders incorporating relevant information into listing will be addressed first and also and court-approved settlement final rules. The number of listing because we allocate our listing budget agreements requiring that petition actions that we can undertake in a given on a nationwide basis. Through the findings or listing determinations be year also is influenced by the listing cap, the critical habitat subcap, completed by a specific date; section 4 complexity of those listing actions; that and the amount of funds needed to (of the Act) listing actions with absolute is, more complex actions generally are address court-mandated critical habitat statutory deadlines; essential litigation- more costly. The median cost for designations, Congress and the courts related, administrative, and listing preparing and publishing a 90-day have in effect determined the amount of program-management functions; and finding is $39,276; for a 12-month money available for other listing high-priority listing actions for some of finding, $100,690; for a proposed rule activities nationwide. Therefore, the our candidate species. In FY 2010, the with critical habitat, $345,000; and for funds in the listing cap, other than those Service received many new petitions a final listing rule with critical habitat, needed to address court-mandated and a single petition to list 404 species. $305,000. critical habitat for already listed species, The receipt of petitions for a large We cannot spend more than is set the limits on our determinations of number of species is consuming the appropriated for the Listing Program preclusion and expeditious progress. Service’s listing funding that is not without violating the Anti-Deficiency Congress identified the availability of dedicated to meeting court-ordered Act (see 31 U.S.C. 1341(a)(1)(A)). In resources as the only basis for deferring commitments. Absent some ability to addition, in FY 1998 and for each fiscal the initiation of a rulemaking that is balance effort among listing duties year since then, Congress has placed a warranted. The Conference Report under existing funding levels, it is statutory cap on funds that may be accompanying Public Law 97–304 unlikely that the Service will be able to expended for the Listing Program, equal (Endangered Species Act Amendments initiate any new listing determination to the amount expressly appropriated of 1982), which established the current for candidate species in FY 2011. for that purpose in that fiscal year. This statutory deadlines and the warranted- In 2009, the responsibility for listing cap was designed to prevent funds but-precluded finding, states that the foreign species under the Act was appropriated for other functions under amendments were ‘‘not intended to transferred from the Division of the Act (for example, recovery funds for allow the Secretary to delay Scientific Authority, International removing species from the Lists), or for commencing the rulemaking process for Affairs Program, to the Endangered other Service programs, from being used any reason other than that the existence Species Program. Therefore, starting in for Listing Program actions (see House of pending or imminent proposals to list FY 2010, we used a portion of our Report 105–163, 105th Congress, 1st species subject to a greater degree of funding to work on the actions Session, July 1, 1997). threat would make allocation of described above for listing actions Since FY 2002, the Service’s budget resources to such a petition [that is, for related to foreign species. In FY 2011, has included a critical habitat subcap to a lower-ranking species] unwise.’’ we anticipate using $1,500,000 for work

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on listing actions for foreign species listing priority (that is, a species with an accomplish it, it is important that we be which reduces funding available for LPN of 1 would have the highest listing as efficient as possible in our listing domestic listing actions; however, priority). process. Therefore, as we work on currently only $500,000 has been Because of the large number of high- proposed rules for the highest priority allocated for this function. Although priority species, we have further ranked species in the next several years, we are there are no foreign species issues the candidate species with an LPN of 2 preparing multi-species proposals when included in our high-priority listing by using the following extinction-risk appropriate, and these may include actions at this time, many actions have type criteria: International Union for the species with lower priority if they statutory or court-approved settlement Conservation of Nature and Natural overlap geographically or have the same deadlines, thus increasing their priority. Resources (IUCN) Red list status/rank, threats as a species with an LPN of 2. The budget allocations for each specific Heritage rank (provided by In addition, we take into consideration listing action are identified in the NatureServe), Heritage threat rank the availability of staff resources when Service’s FY 2011 Allocation Table (part (provided by NatureServe), and species we determine which high-priority of our record). currently with fewer than 50 species will receive funding to For the above reasons, funding a individuals, or 4 or fewer populations. minimize the amount of time and proposed listing determination for the Those species with the highest IUCN resources required to complete each meltwater lednian stonefly, which has rank (critically endangered), the highest listing action. an LPN of 4, is precluded by court- Heritage rank (G1), the highest Heritage As explained above, a determination ordered and court-approved settlement threat rank (substantial, imminent that listing is warranted but precluded agreements, listing actions with absolute threats), and currently with fewer than must also demonstrate that expeditious statutory deadlines, work on final listing 50 individuals, or fewer than 4 progress is being made to add and determinations for those species that populations, originally comprised a remove qualified species to and from were proposed for listing with funds group of approximately 40 candidate the Lists of Endangered and Threatened from FY 2011, and work on proposed species (‘‘Top 40’’). These 40 candidate Wildlife and Plants. As with our listing determinations for those species have had the highest priority to ‘‘precluded’’ finding, the evaluation of candidate species with a higher listing receive funding to work on a proposed whether progress in adding qualified priority (i.e., candidate species with listing determination. As we work on species to the Lists has been expeditious LPNs of 1 to 3). proposed and final listing rules for those is a function of the resources available Based on our September 21, 1983, 40 candidates, we apply the ranking for listing and the competing demands guidelines for assigning an LPN for each criteria to the next group of candidates for those funds. (Although we do not candidate species (48 FR 43098), we with an LPN of 2 and 3 to determine the discuss it in detail here, we are also have a significant number of species next set of highest priority candidate making expeditious progress in with high priority LPNs. Using these species. Finally, proposed rules for removing species from the list under the guidelines, we assign each candidate an reclassification of threatened species to Recovery program in light of the LPN of 1 to 12, depending on the endangered are lower priority, because resource available for delisting, which is magnitude of threats (high or moderate as listed species, they are already funded by a separate line item in the to low), immediacy of threats (imminent afforded the protection of the Act and budget of the Endangered Species or nonimminent), and taxonomic status implementing regulations. However, for Program. So far during FY 2011, we of the species (in order of priority: efficiency reasons, we may choose to have completed one delisting rule.) Monotypic genus (a species that is the work on a proposed rule to reclassify a Given the limited resources available for sole member of a genus); species; or part species to endangered if we can listing, we find that we are making of a species (subspecies, distinct combine this with work that is subject expeditious progress in FY 2011 in the population segment, or significant to a court-determined deadline. Listing Program. This progress included portion of the range)). The lower the With our workload so much bigger preparing and publishing the following listing priority number, the higher the than the amount of funds we have to determinations:

FY 2011 COMPLETED LISTING ACTIONS

Publication date Title Actions FR pages

10/6/2010 ...... Endangered Status for the Altamaha Spinymussel and Des- Proposed Listing Endangered .. 75 FR 61664–61690 ignation of Critical Habitat. 10/7/2010 ...... 12-month Finding on a Petition to list the Sacramento Splittail Notice of 12-month petition 75 FR 62070–62095 as Endangered or Threatened. finding, Not warranted. 10/28/2010 ...... Endangered Status and Designation of Critical Habitat for Proposed Listing Endangered 75 FR 66481–66552 Spikedace and Loach Minnow. (uplisting). 11/2/2010 ...... 90-Day Finding on a Petition to List the Bay Springs Sala- Notice of 90-day Petition Find- 75 FR 67341–67343 mander as Endangered. ing, Not substantial. 11/2/2010 ...... Determination of Endangered Status for the Georgia Pigtoe Final Listing Endangered ...... 75 FR 67511–67550 Mussel, Interrupted Rocksnail, and Rough Hornsnail and Designation of Critical Habitat. 11/2/2010 ...... Listing the Rayed Bean and Snuffbox as Endangered ...... Proposed Listing Endangered .. 75 FR 67551–67583 11/4/2010 ...... 12-Month Finding on a Petition to List Cirsium wrightii (Wright’s Notice of 12-month petition 75 FR 67925–67944 Marsh Thistle) as Endangered or Threatened. finding, Warranted but pre- cluded. 12/14/2010 ...... Endangered Status for Dunes Sagebrush Lizard ...... Proposed Listing Endangered .. 75 FR77801–77817 12/14/2010 ...... 12-month Finding on a Petition to List the North American Wol- Notice of 12-month petition 75 FR 78029–78061 verine as Endangered or Threatened. finding, Warranted but pre- cluded.

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FY 2011 COMPLETED LISTING ACTIONS—Continued

Publication date Title Actions FR pages

12/14/2010 ...... 12-Month Finding on a Petition to List the Sonoran Population Notice of 12-month petition 75 FR 78093–78146 of the Desert Tortoise as Endangered or Threatened. finding, Warranted but pre- cluded. 12/15/2010 ...... 12-Month Finding on a Petition to List Astragalus microcymbus Notice of 12-month petition 75 FR 78513–78556 and Astragalus schmolliae as Endangered or Threatened. finding, Warranted but pre- cluded. 12/28/2010 ...... Listing Seven Brazilian Bird Species as Endangered Through- Final Listing Endangered ...... 75 FR 81793–81815 out Their Range. 1/4/2011 ...... 90-Day Finding on a Petition to List the Red Knot subspecies Notice of 90-day Petition Find- 76 FR 304–311 Calidris canutus roselaari as Endangered. ing, Not substantial. 1/19/2011 ...... Endangered Status for the Sheepnose and Spectaclecase Proposed Listing Endangered .. 76 FR 3392–3420 Mussels. 2/10/2011 ...... 12-Month Finding on a Petition to List the Pacific Walrus as Notice of 12-month petition 76 FR 7634–7679 Endangered or Threatened. finding, Warranted but pre- cluded. 2/17/2011 ...... 90-Day Finding on a Petition To List the Sand Verbena Moth Notice of 90-day Petition Find- 76 FR 9309–9318 as Endangered or Threatened. ing, Substantial. 2/22/2011 ...... Determination of Threatened Status for the New Zealand-Aus- Final Listing Threatened ...... 76 FR 9681–9692 tralia Distinct Population Segment of the Southern Rockhopper Penguin. 2/22/2011 ...... 12-Month Finding on a Petition to List Solanum conocarpum Notice of 12-month petition 76 FR 9722–9733 (marron bacora) as Endangered. finding, Warranted but pre- cluded. 2/23/2011 ...... 12-Month Finding on a Petition to List Thorne’s Hairstreak But- Notice of 12-month petition 76 FR 991–10003 terfly as Endangered. finding, Not warranted. 2/23/2011 ...... 12-Month Finding on a Petition to List Astragalus hamiltonii, Notice of 12-month petition 76 FR 10166–10203 Penstemon flowersii, Eriogonum soredium, Lepidium ostleri, finding, Warranted but pre- and Trifolium friscanum as Endangered or Threatened. cluded & Not Warraned. 2/24/2011 ...... 90-Day Finding on a Petition to List the Wild Plains Bison or Notice of 90-day Petition Find- 76 FR 10299–10310 Each of Four Distinct Population Segments as Threatened. ing, Not substantial. 2/24/2011 ...... 90-Day Finding on a Petition to List the Unsilvered Fritillary Notice of 90-day Petition Find- 76 FR 10310–10319 Butterfly as Threatened or Endangered. ing, Not substantial. 3/8/2011 ...... 12-Month Finding on a Petition to List the Mt. Charleston Blue Notice of 12-month petition 76 FR 12667–12683 Butterfly as Endangered or Threatened. finding, Warranted but pre- cluded. 3/8/2011 ...... 90-Day Finding on a Petition to List the Texas Kangaroo Rat Notice of 90-day Petition Find- 76 FR 12683–12690 as Endangered or Threatened. ing, Substantial. 3/10/2011 ...... Initiation of Status Review for Longfin Smelt ...... Notice of Status Review ...... 76 FR 13121–31322 3/15/2011 ...... Withdrawal of Proposed Rule to List the Flat-tailed Horned Liz- Proposed rule withdrawal ...... 76 FR 14210–14268 ard as Threatened. 3/22/2011 ...... 12-Month Finding on a Petition to List the Berry Cave Sala- Notice of 12-month petition 76 FR 15919–15932 mander as Endangered. finding, Warranted but pre- cluded.

Our expeditious progress also statutory timelines, that is, timelines a lower priority if they overlap includes work on listing actions that we required under the Act. 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, when compared to preparing court. Actions in the middle section of based on available staff resources, and separate proposed rules for each of them the table are being conducted to meet when appropriate, include species with in the future.

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

Species Action

Actions Subject to Court Order/Settlement Agreement

Mountain plover 4 ...... Final listing determination. Hermes copper butterfly 3 ...... 12-month petition finding. 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 macaw) 5 ...... 12-month petition finding. 4 parrots species (crimson shining parrot, white cockatoo, Philippine cockatoo, yellow-crested cockatoo) 5 ...... 12-month petition finding. Utah prairie dog (uplisting) ...... 90-day petition finding.

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

Species Action

Actions With Statutory Deadlines

Casey’s june beetle ...... Final listing determination. 6 Birds from Eurasia ...... Final listing determination. 5 Bird species from Colombia and Ecuador ...... Final listing determination. Queen Charlotte goshawk ...... Final listing determination. 5 species southeast fish (Cumberland darter, rush darter, yellowcheek darter, chucky madtom, and laurel dace) 4 .. Final listing determination. Ozark hellbender 4 ...... Final listing determination. Altamaha spinymussel 3 ...... Final listing determination. 3 Colorado plants (Ipomopsis polyantha (Pagosa Skyrocket), Penstemon debilis (Parachute Beardtongue), and Final listing determination. Phacelia submutica (DeBeque Phacelia)) 4. Salmon crested cockatoo ...... 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. Mojave fringe-toed lizard 1 ...... 12-month petition finding. Kokanee—Lake Sammamish population 1 ...... 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 listing. Dusky tree vole ...... 12-month petition finding. 3 MT invertebrates (meltwater lednian stonefly (Lednia tumana), Oreohelix sp. 3, Oreohelix sp. 31) from 206 spe- 12-month petition finding. cies petition. 5 WY plants (Abronia ammophila, Agrostis rossiae, Astragalus proimanthus, Boechere (Arabis) pusilla, Penstemon 12-month petition finding. gibbensii) from 206 species petition. Leatherside chub (from 206 species petition) ...... 12-month petition finding. Frigid ambersnail (from 206 species petition) 3 ...... 12-month petition finding. Platte River caddisfly (from 206 species petition) 5 ...... 12-month petition finding. Gopher tortoise—eastern population ...... 12-month petition finding. Grand Canyon scorpion (from 475 species petition) ...... 12-month petition finding. Anacroneuria wipukupa (a stonefly from 475 species petition) 4 ...... 12-month petition finding. 3 Texas moths (Ursia furtiva, Sphingicampa blanchardi, Agapema galbina) (from 475 species petition) ...... 12-month petition finding. 2 Texas shiners (Cyprinella sp., Cyprinella lepida) (from 475 species petition) ...... 12-month petition finding. 3 South Arizona plants (Erigeron piscaticus, Astragalus hypoxylus, Amoreuxia gonzalezii) (from 475 species peti- 12-month petition finding. tion). 5 Central Texas mussel species (3 from 475 species petition) ...... 12-month petition finding. 14 parrots (foreign species) ...... 12-month petition finding. Striped Newt 1 ...... 12-month petition finding. Fisher—Northern Rocky Mountain Range 1 ...... 12-month petition finding. Mohave Ground Squirrel 1 ...... 12-month petition finding. Puerto Rico Harlequin Butterfly 3 ...... 12-month petition finding. Western gull-billed tern ...... 12-month petition finding. Ozark chinquapin (Castanea pumila var. ozarkensis) 4 ...... 12-month petition finding. HI yellow-faced bees ...... 12-month petition finding. Giant Palouse earthworm ...... 12-month petition finding. Whitebark pine ...... 12-month petition finding. OK grass pink (Calopogon oklahomensis) 1 ...... 12-month petition finding. Ashy storm-petrel 5 ...... 12-month petition finding. Honduran emerald ...... 12-month petition finding. Southeastern pop snowy plover & wintering pop. of piping plover 1 ...... 90-day petition finding. Eagle Lake trout 1 ...... 90-day petition finding. Smooth-billed ani 1 ...... 90-day petition finding. 32 Pacific Northwest mollusks species (snails and slugs) 1 ...... 90-day petition finding. 42 snail species (Nevada & Utah) ...... 90-day petition finding. Peary caribou ...... 90-day petition finding. Spring Mountains checkerspot butterfly ...... 90-day petition finding. Spring pygmy sunfish ...... 90-day petition finding. Bay skipper ...... 90-day petition finding. Spot-tailed earless lizard ...... 90-day petition finding. Eastern small-footed bat ...... 90-day petition finding. Northern long-eared bat ...... 90-day petition finding. Prairie chub ...... 90-day petition finding. 10 species of Great Basin butterfly ...... 90-day petition finding. 6 sand dune (scarab) beetles ...... 90-day petition finding. Golden-winged warbler 4 ...... 90-day petition finding. 404 Southeast species ...... 90-day petition finding. Franklin’s bumble bee 4 ...... 90-day petition finding. 2 Idaho snowflies (straight snowfly & Idaho snowfly) 4 ...... 90-day petition finding.

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

Species Action

American eel 4 ...... 90-day petition finding. Gila monster (Utah population) 4 ...... 90-day petition finding. Arapahoe snowfly 4 ...... 90-day petition finding. Leona’s little blue 4 ...... 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. Chimpanzee ...... 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.

High-Priority Listing Actions

19 Oahu candidate species 2 (16 plants, 3 damselflies) (15 with LPN = 2, 3 with LPN = 3, 1 with LPN = 9) ...... Proposed listing. 19 Maui-Nui candidate species 2 (16 plants, 3 tree snails) (14 with LPN = 2, 2 with LPN = 3, 3 with LPN = 8) ...... Proposed listing. 2 Arizona springsnails 2 (Pyrgulopsis bernadina (LPN = 2), Pyrgulopsis trivialis (LPN = 2)) ...... Proposed listing. Chupadera springsnail 2 (Pyrgulopsis chupaderae (LPN = 2) ...... Proposed listing. 8 Gulf Coast mussels (southern kidneyshell (LPN = 2), round ebonyshell (LPN = 2), Alabama pearlshell (LPN = 2), Proposed listing. southern sandshell (LPN = 5), fuzzy pigtoe (LPN = 5), Choctaw bean (LPN = 5), narrow pigtoe (LPN = 5), and tapered pigtoe (LPN = 11)) 4. 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. Miami blue (LPN = 3) 3 ...... Proposed listing. Lesser prairie chicken (LPN = 2) ...... Proposed listing. 4 Texas salamanders (Austin blind salamander (LPN = 2), Salado salamander (LPN = 2), Georgetown salamander Proposed listing. (LPN = 8), Jollyville Plateau (LPN = 8)) 3. 5 SW aquatics (Gonzales Spring Snail (LPN = 2), Diamond Y springsnail (LPN = 2), Phantom springsnail (LPN = Proposed listing. 2), Phantom Cave snail (LPN = 2), Diminutive amphipod (LPN = 2)) 3. 2 Texas plants (Texas golden gladecress (Leavenworthia texana) (LPN = 2), Neches River rose-mallow (Hibiscus Proposed listing. dasycalyx) (LPN = 2)) 3. 4 AZ plants (Acuna cactus (Echinomastus erectocentrus var. acunensis) (LPN = 3), Fickeisen plains cactus Proposed listing. (Pediocactus peeblesianus fickeiseniae) (LPN = 3), Lemmon fleabane (Erigeron lemmonii) (LPN = 8), Gierisch mallow (Sphaeralcea gierischii) (LPN = 2)) 5. FL bonneted bat (LPN = 2) 3 ...... Proposed listing. 3 Southern FL plants (Florida semaphore cactus (Consolea corallicola) (LPN = 2), shellmound applecactus Proposed listing. (Harrisia (= Cereus) aboriginum (= gracilis)) (LPN = 2), Cape Sable thoroughwort (Chromolaena frustrata) (LPN = 2)) 5. 21 Big Island (HI) species 5 (includes 8 candidate species—5 plants & 3 animals; 4 with LPN = 2, 1 with LPN = 3, Proposed listing. 1 with LPN = 4, 2 with LPN = 8). 12 Puget Sound prairie species (9 subspecies of pocket gopher (Thomomys mazama ssp.) (LPN = 3), streaked Proposed listing. 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 have endeavored to make our actions described above collectively We intend that any proposed listing listing actions as efficient and timely as constitute expeditious progress. action for the meltwater lednian possible, given the requirements of the The meltwater lednian stonefly will stonefly will be as accurate as possible. relevant law and regulations, and be added to the list of candidate species Therefore, we will continue to accept constraints relating to workload and upon publication of this 12-month additional information and comments personnel. We are continually finding. We will continue to monitor the from all concerned governmental considering ways to streamline status of this species as new information agencies, the scientific community, processes or achieve economies of scale, becomes available. This review will industry, or any other interested party such as by batching related actions determine if a change in status is concerning this finding. together. Given our limited budget for warranted, including the need to make implementing section 4 of the Act, these prompt use of emergency listing procedures.

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References Cited finding on the petition, which will (1) Each subspecies’ biology, range, A complete list of references cited is address whether the petitioned action is and population trends, including: available on the Internet at http:// warranted, as provided in section (a) Habitat requirements for feeding, www.regulations.gov and upon request 4(b)(3)(B) of the Act. breeding, and sheltering; from the Montana Field Office (see DATES: To allow us adequate time to (b) Genetics and taxonomy; ADDRESSES section). conduct this review, we request that we (c) Historical and current range receive information on or before June 6, including distribution patterns, Authors 2011. After this date, you must submit particularly regarding their seasonal The primary authors of this notice are information directly to the office listed migrations; the staff members of the Montana Field in the FOR FURTHER INFORMATION (d) Historical and current population Office. CONTACT section below. Please note that levels, and current and projected we may not be able to address or population trends; Authority incorporate information that we receive (e) Potential threats to each The authority for this section is after the above requested date. subspecies such as mining, resource extraction, or other threats not section 4 of the Endangered Species Act ADDRESSES: You may submit of 1973, as amended (16 U.S.C. 1531 et information by one of the following identified; and seq.). methods: (f) Past and ongoing conservation measures for each subspecies or their Dated: March 21, 2011. • Federal eRulemaking Portal: http:// habitat. Gregory E. Siekaniec, www.regulations.gov. Search for docket (2) The factors that are the basis for FWS–R9–ES–2010–0001 and then Acting Director, Fish and Wildlife Service. making a listing determination for a follow the instructions for submitting [FR Doc. 2011–7827 Filed 4–4–11; 8:45 am] species or subspecies under section 4(a) comments. BILLING CODE 4310–55–P of the Act (16 U.S.C. 1531 et seq.), • U.S. mail or hand-delivery: Public which are: Comments Processing, Attn: FWS–R9– (a) The present or threatened ES–2010–0001; Division of Policy and DEPARTMENT OF THE INTERIOR destruction, modification, or Directives Management; U.S. Fish and curtailment of their habitat or range; Fish and Wildlife Service Wildlife Service; 4401 N. Fairfax Drive, (b) Overutilization for commercial, MS 2042–PDM; Arlington, VA 22203. 50 CFR Part 17 recreational, scientific, or educational We will post all information received purposes, particularly data on hunting; [FWS–R9–ES–2010–0001; MO 92210–0–0010 on http://www.regulations.gov. This (c) Disease or predation; B6] generally means that we will post any (d) The inadequacy of existing personal information you provide us regulatory mechanisms; or Endangered and Threatened Wildlife (see the Information Requested section (e) Other natural or manmade factors and Plants; 90-Day Finding on a below for more details). affecting their continued existence. Petition To List the Peary Caribou and FOR FURTHER INFORMATION CONTACT: (3) The potential effects of climate Dolphin and Union Population of the Janine Van Norman, Chief, Branch of change on each subspecies and its Barren-Ground Caribou as Endangered Foreign Species, Endangered Species habitat. or Threatened Program, U.S. Fish and Wildlife Service, Please include sufficient information AGENCY: Fish and Wildlife Service, 4401 N. Fairfax Drive, Room 420, with your submission (such as full Interior. Arlington, VA 22203; telephone 703– references) to allow us to verify any 358–2171; facsimile 703–358–1735. If ACTION: Notice of petition finding and scientific or commercial information you use a telecommunications device initiation of status review. you include. Submissions merely stating for the deaf (TDD), call the Federal support for or opposition to the action SUMMARY: We, the U.S. Fish and Information Relay Service (FIRS) at under consideration without providing Wildlife Service, announce a 90-day 800–877–8339. supporting information, although noted, finding on a petition to list the Peary SUPPLEMENTARY INFORMATION: will not be considered in making a (Rangifer tarandus pearyi) and the determination. Section 4(b)(1)(A) of the Information Requested Dolphin and Union population of the Act directs that determinations as to barren-ground (R. t. groenlandicus x When we make a finding that a whether any species is an endangered or pearyi) caribou as endangered or petition presents substantial threatened species must be made ‘‘solely threatened under the Endangered information indicating that listing a on the basis of the best scientific and Species Act of 1973, as amended (Act). species or subspecies may be warranted, commercial data available.’’ Based on our review, we find that the we are required to promptly review the You may submit your information petition presents substantial scientific status of the species (conduct a status concerning this status review by one of and commercial information indicating review). For the status review to be the methods listed in the ADDRESSES that the petitioned action may be complete and based on the best section. If you submit information via warranted. Therefore, with the available scientific and commercial http://www.regulations.gov, your entire publication of this notice, we are information, we request information on submission—including any personal initiating a review of the status of these these two subspecies from governmental identifying information—will be posted two subspecies to determine if listing agencies (including Canadian national on the Web site. If you submit a these two subspecies is warranted. To and provincial governments), local hardcopy that includes personal ensure that this status review is indigenous people of Canada (who also identifying information, you may comprehensive, we request scientific may be acknowledged as Native request at the top of your document that and commercial data and other American or Aboriginal tribes), the we withhold this personal identifying information regarding these two scientific community, industry, and any information from public review. subspecies. At the conclusion of this other interested parties. We seek However, we cannot guarantee that we review, we will issue a 12-month information on: will be able to do so. We will post all

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hardcopy submissions on http:// may be operative threats that act on the Union population is a valid subspecies, www.regulations.gov. species to the point that the species may the taxonomic reclassification process Information and supporting meet the definition of endangered or can be slow, and the Dolphin and Union documentation that we received and threatened under the Act. population has not yet been used in preparing this finding, will be taxonomically reclassified. For the Petition History available for you to review at http:// purpose of this finding, we consider the www.regulations.gov, or you may make On September 15, 2009, we received Dolphin and Union population of the an appointment during normal business a petition (also dated September 15, barren-ground caribou to be a valid hours at the U.S. Fish and Wildlife 2009), from the International Fund for subspecies and treat it as such. Service, Endangered Species Program, Animal Welfare (hereafter referred to as Throughout this finding, we will refer to Branch of Foreign Species (see FOR petitioner) requesting that two this subspecies as the Dolphin and FURTHER INFORMATION CONTACT). subspecies of barren-ground caribou Union caribou. Background (Rangifer tarandus) be listed as endangered or threatened under the Act. General Habitat Characteristics and Life Section 4(b)(3)(A) of the Act requires These two subspecies are the Peary History that we make a finding on whether a caribou (R. t. pearyi) and the Dolphin Both subspecies live in an ecological petition to list, delist, or reclassify a and Union population of the barren- grazing system in which abiotic factors species presents substantial scientific or ground caribou (R. t. groenlandicus x such as snow, rain, and ice largely commercial information indicating that pearyi). The petition clearly identified determine their fate (COSEWIC 2004, p. the petitioned action may be warranted. itself as such and included the requisite 54). Food shortages can have a We are to base this finding on identification information as required significant effect on caribou populations information provided in the petition, by 50 CFR 424.14(a). The petition was in these ecosystems. In the winter of supporting information submitted with amended on May 14, 2010, and the 1973–1974, both subspecies the petition, and information otherwise petitioner provided supplemental experienced a population crash— available in our files. To the maximum information to the original petition. We freezing rain created sheets of ice, extent practicable, we are to make this consider this amended petition, along forming a barrier that covered the finding within 90 days of our receipt of with the previously submitted caribou’s food sources and subsequently the petition and publish our notice of information, to be a new petition and caused mass starvation (Miller et al. the finding promptly in the Federal the statutory timeframes to begin on 1977a in Miller and Gunn 2003, p. 2). Register. May 14, 2010. This finding addresses Their nutrition is closely related to Our standard for substantial scientific the petition. plant phenology (timing of plant or commercial information within the blooming based on daylight and Code of Federal Regulations (CFR) with Species Information temperature). Seasonal feeding is regard to a 90-day petition finding is Taxonomic Background critical for various life stages such as ‘‘that amount of information that would lactation and growth during the spring, lead a reasonable person to believe that Banfield’s 1961 taxonomic the measure proposed in the petition characterization listed nine subspecies increasing fat reserves during the may be warranted’’ (50 CFR 424.14(b)). of caribou (R. tarandus), two of which summer, and simply surviving during If we find that substantial scientific or are now extinct. Peary caribou was first the winter. Caribou generally migrate commercial information was presented, taxonomically described by J. A. Allen great distances in search of food; some we are required to promptly review the in 1902. The Dolphin and Union herds travel significantly greater status of the species, which is caribou was described in 1960 as R. t. distances than others. The distance subsequently summarized in our 12- groenlandicus x pearyi by Manning. traveled likely depends on food month finding. Prior to 1979, Peary caribou (R. t. availability (COSEWIC 2004, pp. 29–30). In considering what factors might pearyi) and the Dolphin and Union Caribou forage by pushing snow off the constitute threats, we look beyond the caribou (R. t. groenlandicus x pearyi) vegetation with their noses, but when exposure of the species to determine were considered the same subspecies. In snowpack is deeper, they will dig small whether the species responds to the 1991, three populations of R. t. pearyi craters in the snow to reach the factor in a way that causes actual were recognized; Banks Island, High vegetation (COSEWIC 2004, p. 35). impacts to the species and we look at Arctic, and Low Arctic. In 2003, Zittlau Peary Caribou the magnitude of the effect. If there is et al. found (pp. 593–598) that the exposure to a factor, but no response, or Dolphin and Union population of Description only a beneficial response, that factor is barren-ground caribou is genetically With an average total body length of not a threat. If there is exposure and the distinct from both Peary and mainland 1.7 meters (m) (5.6 feet (ft)), the Peary species responds negatively, the factor barren-ground caribou (R. t. caribou is relatively small and short may be a threat and we then attempt to groenlandicus). In 2004, the Committee when compared to other caribou species determine how significant the factor is. on the Status of Endangered Wildlife in (COSEWIC 2004, pp. 9–10). If the factor is significant, it may drive Canada (COSEWIC) recognized four or contribute to the risk of extinction of populations of Peary caribou. We accept Distribution and Population the species such that the species Peary caribou as a subspecies because of Peary caribou are endemic to the warrants listing as threatened or the genotypic and phenotypic evidence Queen Elizabeth Islands in northeastern endangered as those terms are defined presented by COSEWIC (2004, p. 17). Canada, in the provinces of Nunavut by the Act. However, the identification Also in 2004, COSEWIC clarified that and the Northwest Territories. They of factors that could impact a species the Dolphin and Union population of exist in the Canadian Arctic Islands and negatively may not be sufficient to the barren-ground caribou (R. t. coastal Greenland, but live mainly on compel a finding that the information in groenlandicus x pearyi) is comprised of the islands of the Canadian archipelago. the petition is substantial. The a portion of the former ‘‘Low Arctic The four populations of Peary caribou information must include evidence population’’ of Peary caribou. Although are generally delineated as follows: sufficient to suggest that these factors most entities agree that the Dolphin and (1) Queen Elizabeth Islands, (2) Banks

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Island and NW Victoria Island, (3) within Canada, and hunts are managed Conservation Status Prince of Wales and Somerset Islands, by regulatory entities such as the and (4) Boothia Peninsula (COSEWIC Nunavut Wildlife Management Board As of 2004, the Dolphin and Union 2004, p. 19). This subspecies is rarely (NWMB) and hunting and trapping caribou is assessed as ‘‘Special Concern’’ found on the mainland (COSEWIC 2004, associations (COSEWIC 2004, p. 61). (COSEWIC 2004, p. 19) by the Canadian pp. 13–14). Their habitat spans 800,000 Native tribes who hunt caribou for Government. It is not listed on any km2 (308,882 mi 2) between 20 Queen subsistence have voluntarily placed CITES appendices. Hunts are managed Elizabeth islands and the other 3 island moratoriums on hunts in the past; as of by boards such as the NWMB, the groups listed above (COSEWIC 2004, 2004, a moratorium was still in place. Canadian Department of Environment, pp. vi, 19). Other than subsistence Peary caribou have been assessed as and hunting associations (COSEWIC hunting when allowed, the Peary endangered since 1996 by the 2004, p. 61). Indigenous tribes who hunt subspecies is generally not directly International Union for Conservation of caribou for subsistence have voluntarily affected by human activities due to the Nature (IUCN). placed moratoriums on hunts in the remoteness of their habitat (COSEWIC past. IUCN in 2008 listed R. tarandus at 2004, p. 50). Dolphin and Union Caribou the species level, as least concern. The The historical population and IUCN criteria are designed for global population trends are difficult to Description taxon assessments (IUCN 2003, p. 1). estimate due to differences in survey The Dolphin and Union caribou is methodology, the remoteness of their Before assessments of taxa below the generally larger than Peary caribou but species level (subspecies, variety or island habitat, and the movements of smaller than the mainland population of Peary caribou between islands, and the subpopulation) can be included on the barren-ground caribou (R. t. IUCN Red List, an assessment of the full taxonomic uncertainty prior to 2004. An groenlandicus). The pelage (coloring) of assessment completed in 1991 indicated species is required. No assessment has Dolphin and Union caribou is slightly that between 1961 and 1987 the been made of this subspecies by the darker than Peary caribou and their population of Peary caribou likely IUCN. antler velvet is grey (like the Peary decreased by 86 percent (Miller 1991). caribou) but is distinct from mainland Evaluation of Information for This COSEWIC further estimates that in the Finding last 40 years, Peary caribou have barren-ground caribou, which do not have grey antler velvet. declined 84 percent (COSEWIC 2004, Section 4 of the Act (16 U.S.C. 1533) pp. 36–37). In 2004, the total population Distribution and Population and its implementing regulations at 50 estimate for Peary caribou was 7,890 CFR 424 set forth the procedures for The Dolphin and Union caribou individuals, including calves (COSEWIC adding a species to, or removing a 2004, p. 62). Although population primarily reside on the southern part of species from, the Federal Lists of estimates for the Peary caribou have Victoria Island and its range does not Endangered and Threatened Wildlife been typically unreliable, in part due to overlap with Peary caribou. Seasonally, and Plants. A species may be the remoteness of the species, the 2004 they cross the frozen ice of the Dolphin estimate is believed to be fairly accurate. and Union Strait to winter on the determined to be an endangered or mainland. Their range consists of the threatened species due to one or more Habitat Characteristics lower part of Victoria Island (excluding of the five factors described in section Peary caribou migrate between the northwestern Victoria Island), and is 4(a)(1) of the Act: (A) The present or various islands based on availability of estimated to be 195,417 km2 (75,451 threatened destruction, modification, or vegetation, and may recolonize islands mi 2) and Stefansson Island (4,463 km2 curtailment of its habitat or range; (B) that were abandoned in previous years (1723 mi 2)). overutilization for commercial, (Ferguson and Messier 2000, p. 173). recreational, scientific, or educational A 1922 estimate (Anderson, cited in They have been documented migrating purposes; (C) disease or predation; (D) up to 450 km (280 mi) between islands COSEWIC 2004, p. 41) indicated that between 100,000 and 200,000 caribou the inadequacy of existing regulatory in search of food and calving grounds mechanisms; or (E) other natural or (COSEWIC 2004, pp. 19, 30). Peary migrated across the Dolphin and Union Strait to Victoria Island. Using other manmade factors affecting its continued caribou migrate from northwestern existence. Victoria Island to the Minto Inlet area caribou population densities as a proxy, (Gunn and Fournier 2000, pp. 15–57). Manning (1960), indicated that 100,000 Following is a threats assessment in However, some caribou remain faithful was likely a more realistic estimate. In which we evaluate whether any of these to one particular island despite the 1973, both subspecies experienced a factors threaten or endanger these two absence of food sources (Miller 2002 in population crash due to freezing rain subspecies. This evaluation is specific COSEWIC 2004, p. 30). It is unclear why and sheets of ice (Miller et al. 1977). In to each subspecies unless specified that some caribou migrate and others do not, 1980, a survey by Jackimchuck and the evaluation is for both subspecies. In but the majority of caribou engage in Carruthers indicated that there were making this 90-day finding, we some degree of migration. approximately 3,400 Dolphin and Union evaluated whether information caribou on Victoria Island (COSEWIC regarding threats to both the Peary and Conservation Status 2004, p. 41). Gunn et al. (2000, p. 43) Dolphin and Union subspecies, as As of 2004, the Peary caribou is estimated the southern Victoria Island presented in the petition and based on assessed as ‘‘endangered’’ by the population to be 14,600 caribou in 1994 other information available in our files, Canadian Government (COSEWIC 2004, and 27,800 caribou in 1997. This herd is substantial, thereby indicating that p. 19). Neither subspecies addressed in does not appear to have been surveyed the petitioned action may be warranted. this finding is listed on any appendices since then. The 2004 COSEWIC report Our evaluation of this information is of the Convention on International indicates the population is estimated to presented below. Trade in Endangered Species of Wild be approximately 25,000 and the Fauna and Flora (CITES). Caribou are population appears to be stable or protected by land claim agreements increasing (pp. viii and 15).

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Peary Caribou increased predation by predators would mechanism, in which melting of snow increase such that it rises to the level of and sea ice lowers surface reflectivity, A. The Present or Threatened a threat to either subspecies (Miller thereby further increasing surface Destruction, Modification, or 1998, in COSEWIC 2004, p. 50; Gunn warming from absorption of solar Curtailment of the Peary Caribou’s 2005, pp. 10–11, 39–41). Therefore, we radiation. Habitat or Range determined that the petition does not The petitioner provided information The petitioner asserts that global present substantial information that the with the petition that states that climate climate change due to global warming petitioned action may be warranted due change may result in irregular winter presents the largest threat to the Peary to disease or predation. However, all events such as freezing rain or heavy caribou’s habitat in that previously factors, including threats from disease snow accumulation, which may not frozen water surrounding the Queen or predation, will be evaluated when we allow caribou access to vegetation Elizabeth Islands will become navigable conduct our status review. (COSEWIC 2004, pp. 51–52). Both to large ships associated with shipping subspecies of caribou forage by pushing and oil exploration and these ships will D. The Inadequacy of Existing snow away from vegetation and by threaten caribou movement. In this Regulatory Mechanisms breaking through hard-packed snow to finding, we will evaluate climate change The petitioner asserts that the reach vegetation. If these conditions threats under Factor E. Other Natural or regulatory mechanisms with respect to occur, both species could suffer Manmade Factors Affecting the Species’ climate change are inadequate to protect widespread starvation (Miller and Continued Existence. Climate change both the Peary caribou and the Dolphin Gunn, 2003, p. 6). Energetic costs will was the only stressor asserted as having and Union caribou. Because this factor increase if they have to travel greater an effect on this subspecies under is applicable to both subspecies, this distances to locate food. Over time, poor Factor A by the petitioner. Although we evaluation under Factor D applies to body condition could lead to lower determined that the petition does not both subspecies in this finding. The reproductive rates, greater susceptibility present substantial information petitioner indicates that the inadequacy to disease or predation, and possibly indicating that listing the Peary caribou of existing regulatory mechanisms with higher mortality rates. Currently, there as endangered or threatened may be respect to global climate change is the are no regulatory mechanisms in place warranted under factor A, we intend to gravest threat to the long-term survival that effectively address a warming assess the present or threatened of these two subspecies. The petitioner climate and its consequences for both destruction, modification, or discussed the ineffectiveness of various subspecies of caribou addressed in this curtailment of the Peary caribou’s regulatory mechanisms associated with finding due to associated changes in habitat or range more thoroughly during climate change such as the United habitat. Accordingly, we conclude that the status review. Nations Framework Convention on there is substantial information Climate Change (UNFCCC), the Kyoto presented in the petition or readily B. Overutilization for Commercial, Protocol, and United States climate available in our files to indicate that Recreational, Scientific, or Educational initiatives. regulatory mechanisms in place may be Purposes Currently, there are no regulatory inadequate to effectively address The petitioner does not indicate that mechanisms in place that effectively changes in habitat or sea-ice habitat overutilization for commercial, address climate change and associated relied upon by these two subspecies of recreational, scientific or educational changes in habitat or sea-ice or caribou. We find that the information purposes is currently contributing to the greenhouse gas (GHG) emissions. provided presents substantial decline of the Peary caribou. Nor do we International efforts to address climate information indicating that the have other data in our files that this change began with the UNFCCC, which petitioned action may be warranted for factor is a threat to the Peary caribou. was adopted in May 1992. The both subspecies due to increased Therefore, we determine that the UNFCCC’s objective is stabilization of snowfall events and freezing rain based petition does not present substantial GHG concentrations in the atmosphere on the inadequacy of existing regulatory information that the petitioned action at a level that would prevent dangerous mechanisms. We will evaluate this may be warranted due to overutilization anthropogenic interference with the factor further for each subspecies during for commercial, recreational, scientific, climate system, but it does not impose the status review. or educational purposes. any mandatory and enforceable restrictions on GHG emissions. The E. Other Natural or Manmade Factors C. Disease or Predation Kyoto Protocol became the first Affecting the Subspecies’ Continued The petitioner acknowledged that agreement to set GHG emissions targets Existence disease is not thought to be a significant for signatory counties, but the targets are The petitioner states that global factor affecting either subspecies of not mandated. Current international warming due to global climate change caribou addressed in this finding. We efforts to regulate GHG emissions are presents the largest threat to both concur with the petitioner that, based focused on emissions targets, subspecies of caribou. The petitioner on the information provided with the monitoring requirements, and voluntary asserts that the Arctic is warming more petition and information available in actions. None of these mechanisms rapidly than other areas on the globe. If our files, disease is not currently a establish mandatory requirements warming occurs, there may be less sea threat to either subspecies. limiting the amount of GHG that may be ice available for crossing from one The petitioner asserted that if climate emitted. For several decades, the surface island to another in search of vegetation change caused significant increases in air temperatures in the Arctic have (COSEWIC 2004, pp. 54–55; Atkinson et snowfall, caribou could be more warmed at approximately twice the al. 2006, pp. 350, 355, 357). The susceptible to attacks by wolves. We global rate (Christensen et al. 2007, p. petitioner asserts that climate change acknowledge that caribou are preyed 904). The observed and projected effects will cause Peary caribou to use more upon by various predators such as of climate change are most extreme energy in search of food by migrating wolves. However, information presented during summer in northern high- farther. Some of the information in the petition and available in our files latitude regions, in large part due to the provided with the petition supports does not indicate that the effect of ice-albedo (reflective property) feedback these assertions (Thomas 1982, pp. 597–

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602; Struzik 1998, pp. 38–44). Both human activity will affect the Dolphin our files, we find that the petition does subspecies of caribou forage by pushing and Union caribou’s habitat. not present substantial information snow away from vegetation and by The petitioner provides no other indicating that listing the Dolphin and breaking through hard-packed snow to information addressing Factor A, and Union caribou as endangered or reach vegetation. The petitioner we have no information in our files threatened may be warranted due to provided information with the petition indicating that listing the subspecies disease or predation. that states that climate change may due to the present or threatened result in irregular winter events such as destruction, modification, or D. The Inadequacy of Existing freezing rain or heavy snow curtailment of the Dolphin and Union Regulatory Mechanisms caribou’s habitat or range may be accumulation, which may not allow Refer to the discussion under Factor warranted. Therefore, we find that the caribou access to vegetation (COSEWIC D above for Peary caribou for additional 2004, pp. 51–52). If these conditions petition does not present substantial information to indicate that the information. After reviewing the occur, both species could suffer information provided in the petition widespread starvation (Miller and petitioned action may be warranted based on the present or threatened and available in our files, we find that Gunn, 2003, p. 6). This type of the information provided presents starvation has been the primary cause of destruction, modification, or curtailment of its habitat or range. substantial information indicating that decline in the past. The extreme listing the Dolphin and Union caribou mortality events—between 1973 and B. Overutilization for Commercial, as endangered or threatened may be 1974 and between 1994 and 1997— Recreational, Scientific, or Educational warranted due to the inadequacy of coincided with extremely heavy Purposes existing regulatory mechanisms. snowfall, deep snow packs, and heavy The petitioner identifies hunting of icing in those same years (Miller and E. Other Natural or Manmade Factors the Dolphin and Union caribou as a Gunn 2003, pp. 5–6). After reviewing Affecting the Continued Existence of possible factor in the decline of this the information provided in the petition Dolphin and Union Caribou subspecies. The petition reports that and available in our files, we find that this subspecies is hunted by the Inuit the information provided presents The petitioner states that global for subsistence, and it is also hunted substantial information indicating that climate change presents the greatest commercially along the mainland on the the petitioned action may be warranted threat to the Dolphin and Union north coast bordering the Dolphin and for both subspecies due to increased caribou’s habitat. We currently do not Union Strait. Various management units snowfall events and freezing rain. know the extent of the subspecies’ such as the NWMB, the Wildlife capacity to adapt to potential changes in Low genetic diversity was an issue Management Advisory Council for the its habitat resulting from climate raised by the petitioner as a stressor on Inuvialuit Settlement Region in the change. However, there is an upward the subspecies. We will further evaluate Northwest Territories, the Canadian trend in temperature which may this during the status review. Department of Environment, and the decrease sea ice in the Dolphin and Dolphin and Union Caribou Inuit and Inuvialuit tribes play a role in Union Strait (refer to discussion above). the regulation of hunting of the various This subspecies crosses the sea ice in A. The Present or Threatened caribou populations at the larger scale. the Strait seasonally, and this decrease Destruction, Modification, or At more local scales, committees and in sea ice may affect the species’ Curtailment of the Dolphin and Union trapper associations are involved in migration patterns and availability to Caribou’s Habitat or Range monitoring caribou. Hunting has not access food sources. Seasonally, herds been implicated as a causative factor in congregate at the edge of the Strait while The petitioner states that the waters of any of the major caribou die-offs. The waiting for the ice to form. Energetic the Dolphin and Union Strait will hunting of this subspecies appears to be costs will increase if they have to travel become navigable to large ships in the sufficiently managed by the local greater distances to locate food sources, near future based on decreased sea ice hunting boards, the local indigenous and foraging efficiency is reduced. Over due to global warming, and that these peoples of Canada such as the Inuit and time, poor body condition could lead to ships will disrupt caribou movement. Inuvialuit, who are allowed to hunt lower reproductive rates, greater The petitioner suggested that shipping caribou for subsistence. Based on the susceptibility to disease or predation, traffic has, in the past, interrupted the information available in the petition and and ultimately higher mortality rates. migration of the Dolphin and Union in our files, hunting does not appear to The loss of seasonal ice across the caribou. Other than expression of be causing a decline in the Dolphin and Dolphin and Union Strait could reduce concern, the supporting information did Union caribou. not indicate that this increase in The petitioner did not indicate any access to traditional foraging areas and shipping traffic has had a negative other threats under this factor. After it may increase competition among impact on the subspecies (COSEWIC reviewing the information provided in individuals for food resources in areas 2004, pp. 46–47). The petitioner also the petition and available in our files, close to staging grounds. After suggests that caribou will be adversely we find that the information provided reviewing the information provided in affected by the increasing development does not present substantial information the petition and available in our files, associated with shipping and oil indicating that the petitioned action we find that the information provided exploration. Although oil development may be warranted due to overutilization presents substantial information and increased shipping may occur, there for commercial, recreational, scientific, indicating that the petitioned action is no evidence that it will have a or educational purposes. may be warranted due to changes in sea significant effect on caribou. After ice (also refer to the discussion under reviewing the information provided in C. Disease or Predation Factor E above for Peary caribou). We the petition and available in our files, it Refer to the discussion under Factor intend to investigate the effects of does not support the claim that oil C above for Peary caribou for additional climate change, particularly the changes exploration, and an increase in information. Based on the information in sea ice, on the Dolphin and Union shipping, development, and related provided in the petition and available in caribou during the status review.

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Finding DEPARTMENT OF COMMERCE Federal eRulemaking Portal: http:// www.regulations.gov. On the basis of our evaluation under National Oceanic and Atmospheric • Fax: 562–980–4047, Attn: Heidi section 4(b)(3)(A) of the Act, we find Administration Hermsmeyer. that the petition presents substantial • Mail: Rodney R. McInnis, Regional scientific or commercial information 50 CFR Parts 300 and 660 Administrator, NMFS Southwest indicating that listing both the Peary [Docket No. 110218143–1209–01] Regional Office (SWR), 501 W. Ocean and Dolphin and Union caribou as Blvd., Suite 4200, Long Beach, CA endangered or threatened may be RIN 0648–BA49 90802. Include the identifier ‘‘0648– warranted. This finding is based on ’’ Fisheries in the Eastern Pacific Ocean; BA49 in the comments. information evaluated under factors D Pelagic Fisheries; Vessel Identification Instructions: All comments received and E for both subspecies. Because we Requirements are a part of the public record and will have found that the petition presents generally be posted to http:// substantial information indicating that AGENCY: National Marine Fisheries www.regulations.gov without change. listing these two subspecies may be Service (NMFS), National Oceanic and All Personal Identifying Information (for warranted, we are initiating a status Atmospheric Administration (NOAA), example, name, address, etc.) review to determine whether listing Commerce. voluntarily submitted by the commenter these two subspecies of caribou as ACTION: Proposed rule; request for may be publicly accessible. Do not endangered or threatened under the Act comments. submit Confidential Business is warranted. Information or otherwise sensitive or SUMMARY: NMFS proposes to revise protected information. References Cited vessel identification requirements for NMFS will accept anonymous U.S. vessels based out of the U.S. West comments (enter N/A in the required A complete list of references cited is Coast that fish for highly migratory fields, if you wish to remain available on the Internet at http:// species. The new measures would allow anonymous). You may submit www.regulations.gov and upon request these vessels to be marked in attachments to electronic comments in from the Branch of Foreign Species, accordance with the international Microsoft Word, Excel, WordPerfect, or Endangered Species Program, U.S. Fish standards that were implemented by Adobe PDF file formats only. NMFS for vessels fishing on the high and Wildlife Service (see FOR FURTHER Written comments regarding the seas in the Area of the Convention on INFORMATION CONTACT). burden-hour estimates or other aspects the Conservation and Management of of the collection-of-information Authors Highly Migratory Fish Stocks in the requirements contained in this proposed Western and Central Pacific Ocean rule may be submitted to NMFS SWR at The primary authors of this notice are (Convention Area) in early 2010. the address above, and by e-mail to the staff members of the Branch of Currently, the domestic marking [email protected], or fax Foreign Species, Endangered Species requirements for some U.S. West Coast to (202) 395–7285. Program, U.S. Fish and Wildlife Service vessels do not comport with these (see FOR FURTHER INFORMATION CONTACT). international standards. The new FOR FURTHER INFORMATION CONTACT: Heidi Hermsmeyer, NMFS SWR, 562– Authority: The authority for this action is measures would require vessels that fish 980–4036. the Endangered Species Act of 1973, as in the Convention Area to display their amended (16 U.S.C. 1531 et seq.). International Telecommunication Union SUPPLEMENTARY INFORMATION: The Radio Call Sign (IRCS), or if an IRCS has WCPFC was established under the Dated: March 11, 2011. not been assigned to the vessel, the Convention on the Conservation and Rowan W. Gould, vessel would be required to display its Management of Highly Migratory Fish Acting Director, U.S. Fish and Wildlife official number, preceded by the Stocks in the Western and Central Service. characters ‘‘USA–’’. The intent of the Pacific Ocean (Convention). The [FR Doc. 2011–7653 Filed 4–4–11; 8:45 am] proposed action is to bring the existing Convention’s objective is to ensure, BILLING CODE 4310–55–P vessel identification requirements into through effective management, the long- conformity with the binding vessel term conservation and sustainable use identification requirements adopted by of highly migratory fish stocks in the the Western and Central Pacific western and central Pacific Ocean, Fisheries Commission (WCPFC). including measures to manage and DATES: Comments must be received by conserve tunas and to minimize impacts 5 p.m., local time, on May 5, 2011. on protected resources, such as sea ADDRESSES: You may submit comments, turtles and seabirds. Figure 1 is a map identified by 0648–BA49, by any one of of the Convention Area. The Convention the following methods: Area includes the operational areas of • Electronic Submissions: Submit all U.S. troll, pole-and-line, tuna purse electronic public comments via the seine, and pelagic longline fisheries.

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Under the Convention, vessels that USCG documentation number or other Convention Area would have the option are authorized to fish on the high seas registration number) preceded by the to be marked pursuant to the vessel in the Convention Area are required to characters ‘‘USA’’ and a hyphen (i.e., identification requirements described be identified in accordance with the ‘‘USA—’’). Only these markings would above, or maintain markings pursuant to Standard Specifications for the Marking be allowed on the hull or existing vessel identification and Identification of Fishing Vessels of superstructure, apart from the vessel’s requirements. The proposed rule would the Food and Agriculture Organization name and hailing port. modify only the characters with which of the United Nations. By final rules This proposed rule is consistent with Federally-permitted pelagic fishing published on January 21, 2010 (75 FR the requirements established under the vessels are marked, and would not 3335 and 3416), NMFS implemented WCPFCIA as it would revise existing modify vessel operations or other those standards for U.S. fishing vessels vessel identification regulations at Title aspects of the pelagic fisheries. under the authority of the Western and 50, Code of Federal Regulations, Central Pacific Fisheries Convention §§ 660.704 and 300.173 to conform to Classification Implementation Act (WCPFCIA, Pub. L. the international standards. United Pursuant to section 304(b)(1)(A) of the 109–479, sec. 501, et seq., and codified States vessels that are issued a permit Magnuson-Stevens Act (16 U.S.C. at 16 U.S.C. 6901 et seq.). Specifically, under 50 CFR 660.707, i.e., vessels that 1854(b)(1)(A)), the NMFS Assistant U.S. vessels used for commercial fishing fish for HMS off or land HMS in the Administrator has determined that this for highly migratory species (HMS) on States of California, Oregon, and proposed rule is consistent with the the high seas with a NMFS-issued Washington, and that fish for HMS on WCPFC Area Endorsement would be the high seas of the Convention Area Magnuson-Stevens Act, and other required to display its IRCS on the port would be required to display vessel applicable law, subject to further and starboard sides of the hull or markings as described above. Vessels consideration after public comment. superstructure and deck surface. If an that fish for pelagic species only within This proposed rule has been IRCS has not been assigned, the vessel the U.S. Exclusive Economic Zone (EEZ) determined to be not significant for must display its official number (i.e., or on the high seas outside the purposes of Executive Order 12866.

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The Chief Council for Regulation of the reasons described above, this rule 2. Section § 300.173 is revised to read the Department of Commerce certified will not have a significant economic as follows: to the Chief Council for Advocacy of the impact on a substantial number of small Small Business Administration that this entities. As a result, an initial regulatory § 300.173 Vessel identification. proposed rule, if adopted, would not flexibility analysis is not required and Each U.S. vessel fishing under the have a significant economic impact on none has been prepared. Treaty must be marked for identification a substantial number of small entities. A This proposed rule contains purposes, as follows: description of the action, why it is being collection-of-information requirements (a) A vessel used to fish on the high considered, and the legal basis for this subject to the Paperwork Reduction Act seas within the Convention Area as action are contained in the preamble to (PRA) and which have been approved defined in § 300.211 must be marked in this proposed rule. All vessels having by the Office of Management and accordance with the requirements at the potential to be affected by this Budget (OMB) under control numbers § 300.14 and 300.217. action are considered to be small 0648–0361 and 0648–0492. Public (b) A vessel not used to fish on the entities under the current Small reporting burden for vessel high seas within the Convention Area as Business Administration definition of identification requirements under 0648– defined in § 300.211 must be marked in small fish-harvesting businesses (gross 0361 is estimated to average 45 minutes accordance with either: receipts not in excess of $ 4.0 million). per response, and public reporting (1) Sections 300.14 and 300.217, or The proposed rule would result in an burden for vessel marking requirement (2) The vessel’s name and U.S. Coast estimated one-time cost to each vessel of under 0648–0492 is estimated to average Guard Documentation number (or if not around $10 dollars to conform to the 5 minutes per response, including the documented, the state registration new vessel marking requirements. It is time for reviewing instructions, number) followed by the letter U must estimated that at a maximum 125 searching existing data sources, be prominently displayed where they vessels would be required to change gathering and maintaining the data will be clearly visible both from the air their markings (estimate based on the needed, and completing and reviewing and from a surface vessel. Numerals and current number of active vessels the collection of information. Send the letter U must meet the size targeting HMS on the high seas that comments regarding this burden requirements of § 660.704 of this title. have the potential to fish in the WCPFC estimate, or any other aspect of this data Markings must be legible and of a color Convention Area). The majority, if not collection, including suggestions for that contrasts with the background. all, of these vessels would be troll and reducing the burden, to NMFS pole-and-line vessels targeting albacore PART 660—FISHERIES OFF WEST Southwest Regional Office (see COAST STATES tuna. The estimated 2008 average gross ADDRESSES) and by e-mail to revenue per vessel for the troll and pole- [email protected], or fax 1. The authority citation for part 660 and-line fisheries was approximately to 202–395–7285. continues to read as follows: $52,000. Average gross revenues per Notwithstanding any other provision vessel for other fisheries that have the Authority: 16 U.S.C. 1801 et seq. and 16 of the law, no person is required to U.S.C. 7001 et seq. potential to be affected would be equal respond to, and no person shall be to or greater than the estimate for the subject to penalty for failure to comply 2. Section 660.704 is revised to read troll and pole-and-line fisheries. with, a collection of information subject as follows: Therefore, the cost of vessel marking for to the requirements of the PRA, unless those vessels represents less than one § 660.704 Vessel identification. that collection of information displays a (a) Applicability. This section only percent of gross revenues per vessel on currently valid OMB Control Number. average. It is highly unlikely that this applies to commercial fishing vessels action would result in any vessel’s costs List of Subjects that fish for HMS off, or land HMS in the States of California, Oregon, and exceeding three percent of gross 50 CFR Part 300 revenues (which would translate to an Washington. This section does not estimated cost of $1,550 for the troll and Administrative practice and apply to recreational charter vessels that pole-and-line fisheries). procedure, Fisheries, Reporting and fish for HMS off or land HMS in the This proposed action contains no recordkeeping requirements. States of California, Oregon, and fishery management controls that affect 50 CFR Part 660 Washington. Each fishing vessel must be the operations of the fishery, other than marked for identification purposes, as vessel identification. Thus, significant Administrative practice and follows: impacts to the profitability of a procedure, Reporting and recordkeeping (1) A vessel used to fish on the high substantial number of small entities are requirements. seas within the Convention Area as not anticipated. This rule does not Dated: March 31, 2011. defined in § 300.211 of this title must be duplicate, overlap, or conflict with other John Oliver, marked in accordance with the Federal rules. There are no Deputy Assistant Administrator for requirements at § 300.14 and 300.217 of disproportionate economic impacts Operations, National Marine Fisheries this title. from this rule based on home port, gear Service. (2) A vessel not used to fish on the type, or relative vessel size. The Pacific For the reasons set out in the high seas within the Convention Area as Fishery Management Council (Council) preamble, 50 CFR parts 300 and 660 are defined in § 300.211 of this title must be was briefed on this issue at their proposed to be amended as follows: marked in accordance with either: September 2008 meeting; in a letter (i) Sections 300.14 and 300.217 of this dated November 20, 2008, the Council PART 300—INTERNATIONAL title, or formally recommended that NMFS FISHERIES REGULATIONS (ii) The vessel’s official number must revise regulations accordingly. be affixed to the port and starboard Pursuant to section 605(b) of the 1. The authority citation for part 300 sides of the deckhouse or hull, and on Regulatory Flexibility Act, 5 U.S.C. continues to read as follows: an appropriate weather deck so as to be 605(b), the NMFS Southwest Regional Authority: 16 U.S.C. 2431 et seq., 31 U.S.C. visible from enforcement vessels and Office (SWR) has determined that, for 9701 et seq. aircraft. The official number must be

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affixed to each vessel subject to this ADDRESSES: You may submit comments, setting aside appropriate amounts of section in block Arabic numerals at least identified by RIN 0648–BA95 by any fish in conjunction with the Pacific 10 inches (25.40 cm) in height for one of the following methods: Fishery Management Council (Council) vessels more than 25 ft (7.62 m) but • Electronic Submissions: Submit all process for determining harvest equal to or less than 65 ft (19.81 m) in electronic public comments via the specifications and management length; and 18 inches (45.72 cm) in Federal eRulemaking Portal http:// measures. The Council’s groundfish height for vessels longer than 65 ft www.regulations.gov. fisheries require a high degree of (19.81 m) in length. Markings must be • Fax: 206–526–6736, Attn: Kevin C. coordination among the tribal, state, and legible and of a color that contrasts with Duffy federal co-managers in order to rebuild the background. • Mail: William W. Stelle, Jr., overfished species and prevent (b) [Reserved]. Regional Administrator, Northwest overfishing, while allowing fishermen [FR Doc. 2011–8075 Filed 4–4–11; 8:45 am] Region, NMFS, 7600 Sand Point Way opportunities to sustainably harvest NE, Seattle, WA 98115–0070, Attn: over 90 species of groundfish managed BILLING CODE 3510–22–P Kevin C. Duffy. under the FMP. Instructions: All comments received Since 1996, NMFS has been allocating DEPARTMENT OF COMMERCE are a part of the public record and will a portion of the U.S. OY of Pacific generally be posted to http:// whiting to the tribal fishery following National Oceanic and Atmospheric www.regulations.gov without change. the process established in 50 CFR Administration All Personal Identifying Information (for 660.50(d). The tribal allocation is example, name, address, etc.) subtracted from the whiting OY before 50 CFR Part 660 voluntarily submitted by the commenter allocation to the non-tribal sectors. To may be publicly accessible. Do not date, there has been no determination of the total amount of whiting for which [Docket No. 110311192–1204–01] submit Confidential Business Information or otherwise sensitive or the tribes are entitled to fish under their protected information. treaty right. Therefore, allocations to RIN 0648–BA95 NMFS will accept anonymous date have been on an interim basis, and are not considered to set precedent with Magnuson-Stevens Act Provisions; comments. Attachments to electronic comments will be accepted in Microsoft respect to the amount of the treaty right. Fisheries Off West Coast States; To date, only the Makah Tribe has Pacific Coast Groundfish Fishery; 2011 Word, Excel, WordPerfect, or Adobe PDF file formats only. prosecuted a tribal fishery for Pacific Tribal Fishery for Pacific Whiting whiting. The Makah Tribe has annually FOR FURTHER INFORMATION CONTACT: harvested a whiting allocation every AGENCY: National Marine Fisheries Kevin C. Duffy (Northwest Region, year since 1996 using midwater trawl Service (NMFS), National Oceanic and NMFS), phone: 206–526–4743, fax: gear. From 1999 until 2009, the tribal Atmospheric Administration (NOAA), 206–526–6736 and e-mail: Commerce. allocation was based on a statement of [email protected]. need for their tribal fishery. In recent ACTION: Proposed rule; request for SUPPLEMENTARY INFORMATION: years prior to 2009, the specific tribal comments. amount was generally, although not Electronic Access always, determined using a sliding scale SUMMARY: NMFS is issuing this This proposed rule is accessible via relative to the U.S. whiting OY of proposed rule for the 2011 Pacific the Internet at the Office of the Federal between 14 and 17.5 percent, depending whiting tribal fishery under the Register’s Web site at http:// on the specific OY determined by the authority of the Pacific Coast www.gpoaccess.gov/fr/index.html. Council. In general, years with a Groundfish Fishery Management Plan Background information and documents relatively low OY resulted in a tribal (FMP) and the Magnuson Stevens are available at the Pacific Fishery allocation closer to 17.5 percent, and Fishery Conservation and Management Management Council’s Web site at years with a relatively high OY result in Act (Magnuson Act). Washington http://www.pcouncil.org/. a tribal allocation closer to 14 percent. coastal treaty Indian tribes mean the Between 2000 and 2008, the U.S. OY Background Hoh, Makah, and Quileute Indian Tribes ranged from a high of 269,545 mt in and the Quinault Indian Nation. This The regulations at 50 CFR 660.50(d) 2008 to a low of 129,600 mt in 2002. In proposed rule establishes an interim establish the process by which the tribes absolute amounts, the tribal allocation tribal allocation of Pacific whiting for with treaty fishing rights in the area from 2000 to 2008 ranged from a high the 2011 season only, based on covered by the Pacific Coast Groundfish of 35,000 mt in 2005, 2007, and 2008 to discussions with the Makah and Fishery Management Plan (FMP) request a low of 22,680 mt in 2002. Quileute tribes and Quinault Indian new allocations or regulations specific For the 2009 fishery, the Quileute Nation regarding their fishing plans. At to the tribes, in writing, during the Tribe first stated their intent to the March, 2011 Pacific Fishery biennial harvest specifications and participate in the fishery. That year, the Management Council (Council) meeting, management measures process. The U.S. OY was 135,939 mt, and the tribal the Council recommended a coastwide regulations state ‘‘the Secretary will allocation was set at 50,000 mt (36.78 Optimum Yield (OY) of 393,751 mt. develop tribal allocations and percent of the U.S. OY). A set-aside of This would result in a U.S. OY of regulations under this paragraph in 42,000 mt was established for the 290,903 mt. The proposed rule, based consultation with the affected tribe(s) Makah, and an 8,000 mt set-aside was on communications to date with the and, insofar as possible, with tribal established for the Quileute. The final tribes, proposes a tribal allocation of consensus.’’ These procedures employed rule in 2009 anticipated the Makah 66,908 mt, for 2011 only, given the by NOAA in implementing tribal treaty managing their fisheries to achieve a Council’s recommended OY. rights under the FMP, in place since harvest of no more than 42,000 mt, and DATES: Comments on this proposed rule May 31, 1996, were designed to provide the Quileute managing their fisheries to must be received no later than 5 p.m., a framework process by which NMFS achieve a harvest of no more than 8,000 local time on April 19, 2011. can accommodate tribal treaty rights by mt. For 2010, both the Makah and

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Quileute stated their intent to fishery as well as the process for Makah and Quileute tribes, and for the participate in the Pacific whiting negotiating a long-term tribal allocation. potential 2011 participation by the fishery. Based on the formula for the For 2011, the Makah and the Quileute Quinault Indian Nation. tribal allocation used in the proposed Tribes have indicated that they plan to Regarding the 2011 tribal whiting rule, and taking into account public participate in the 2011 fishery. The allocation, NMFS believes the proposed comments received on the proposed Quinault Indian Nation informed NMFS allocation, although higher than the rule, the tribal allocation of Pacific that while they are still pursuing absolute amounts of prior tribal whiting in 2010 was 49,939 mt (25.75 entering the fishery in 2011, they have allocations, is well within the range of percent of the U.S. OY). Although an not yet made a final decision. Because past percentages (12.08–36.78 percent). allocation was made to account for the co-managers have not negotiated a As described above, while further participation by two tribes, only the long term tribal allocation, NMFS is negotiation on the long-term tribal Makah actually participated in the 2009 again moving forward with this allocation of Pacific whiting will occur and 2010 tribal whiting fisheries. proposed rule as an interim measure to in 2011, NMFS believes that current NMFS and the co-managers have been address the allocation for and knowledge on the distribution and involved in a process designed to management of the 2011 tribal Pacific abundance of the coastal Pacific whiting determine the long-term tribal allocation whiting fishery. As with the 2010 stock supports a conclusion that the for whiting. At the September 2008 allocation, this proposed rule is not proposed tribal allocation of 66,908 mt Council meeting, NMFS, the states and intended to establish any precedent for lies within the range of the tribal treaty the Quinault, Quileute, and Makah future whiting seasons or for the long- right to Pacific whiting. tribes met and agreed on a process in term tribal allocation of whiting. Classification which NMFS would pull together the The proposed rule would be current information regarding whiting, implemented under authority of Section At this time, NMFS has preliminarily circulate it among the co-managers, seek 305(d) of the Magnuson Act, which determined that the management comment on the information and gives the Secretary responsibility to measures for the 2011 Pacific whiting possible analyses, and then prepare ‘‘carry out any fishery management plan tribal fishery are consistent with the analyses of the information to be used or amendment approved or prepared by national standards of the Magnuson- by the co-managers in developing a him, in accordance with the provisions Stevens Act and other applicable laws. tribal allocation for use in 2010 and of this Act.’’ With this proposed rule, NMFS, in making the final beyond. The goal was agreement among NMFS, acting on behalf of the Secretary, determination, will take into account the co-managers on a total tribal would ensure that the FMP is the data, views, and comments received allocation for incorporation into the implemented in a manner consistent during the comment period. Council’s planning process for the 2010 with treaty rights of the Washington NMFS has initially determined that season. The further goal was to provide tribes to fish in their ‘‘usual and this proposed rule is not significant for the tribes the time and information to accustomed grounds and stations’’ in purposes of Executive Order 12866. develop an inter-tribal allocation or common with non-tribal citizens. An Initial Regulatory and Flexibility other necessary management agreement. (United States v. Washington, 384 F. Act (IRFA) was prepared, as required by The process has been moving forward Supp. 313 (W.D. 1974)). section 603 of the Regulatory Flexibility but final agreement on a long-term tribal At the March, 2011 Pacific Fishery Act (RFA). The IRFA describes the allocation has not been reached. In Management Council (Council) meeting, economic impact this proposed rule, if 2009, NMFS shared a preliminary report the Council recommended a coastwide adopted, would have on small entities. summarizing scientific information Optimum Yield (OY) of 393,751 mt. A summary of the analysis follows. A available on the migration and This would result in a U.S. OY of copy of this analysis is available from distribution of Pacific whiting on the 290,903 mt. The Makah Tribe has NMFS (see ADDRESSES). west coast. The co-managers have met to requested the opportunity to harvest up Under the RFA, the term ‘‘small discuss this information and plan to 17.5 percent of the U.S. OY of entities’’ includes small businesses, further meetings. During 2010, NMFS whiting in 2011. The Quileute Tribe has small organizations, and small finalized the report summarizing stated that it plans to have two boats governmental jurisdictions. The Small scientific information available on the participating in the 2011 fishery, and Business Administration (SBA) has migration and distribution of Pacific that it believes that 8,000 mt of whiting established size criteria for all major whiting on the west coast. In addition, per boat is necessary to ensure the industry sectors in the U.S., including NMFS responded in writing to requests economic viability of each boat. fish harvesting and fish processing from the tribes for clarifications on the Given past tribal allocations, the businesses. A business involved in fish paper and requests for additional recent conversations with the Quinault harvesting is a small business if it is information. Additionally, NMFS met Indian Nation, the Quileute Tribe, and independently owned and operated and with each of the tribes in the fall of 2010 the Makah Tribe, and the whiting U.S. not dominant in its field of operation to discuss the paper and to discuss a OY recommendation from the Pacific (including its affiliates) and if it has process for negotiation of the long-term Council, NMFS is proposing a 2011 combined annual receipts not in excess tribal allocation of Pacific whiting. interim tribal allocation of no higher of $4.0 million for all its affiliated Those discussions are ongoing and it is than 66,908 mt, which is 23.00 percent operations worldwide. A seafood not anticipated that these issues will be of the recommended U.S. OY. NMFS is processor is a small business if it is resolved prior to the start of the 2011 still in communication with the tribes independently owned and operated, not Pacific whiting tribal fishery. on the 2011 interim allocation and the dominant in its field of operation, and final allocation amount may differ from employs 500 or fewer persons on a full- Tribal Allocation for 2011 this proposal. In addition, NMFS has yet time, part-time, temporary, or other Over the last three months, NMFS has to consider and adopt the Council’s basis, at all its affiliated operations met individually with each of the recommendation for the U.S. OY of worldwide. A business involved in both coastal tribes that have expressed a whiting. NMFS believes the proposed the harvesting and processing of seafood potential interest in fishing for whiting amount will allow for the anticipated products is a small business if it meets in 2011 to discuss this year’s tribal 2011 participation in the fishery by the the $4.0 million criterion for fish

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harvesting operations. A wholesale ex-vessel values averaged about $29 unharvested whiting allocated to the business servicing the fishing industry million. In 2008, these participants non-tribal shoreside, mothership, and is a small business if it employs 100 or harvested about 248,000 mt of whiting catcher-processor sectors cannot be fewer persons on a full-time, part-time, worth about $63 million in ex-vessel reapportioned among these sectors. So, temporary, or other basis, at all its value based on shoreside ex-vessel unlike 2010, the regulations do not affiliated operations worldwide. For prices of $254 per ton—the highest ex- provide NMFS a specific mechanism to marinas and charter/party boats, a small vessel revenues and prices on record. In reapportion unharvested tribal whiting business is one with annual receipts not comparison, the 2007 fishery harvested to the non-tribal sectors, and will not be in excess of $7.0 million. The RFA about 224,000 mt worth $36 million at able to reapportion among the non-tribal defines small organizations as any an average ex-vessel price of about $160 sectors. Pending markets, available nonprofit enterprise that is per mt. In 2009, tribal and non-tribal bycatch, and the ability of tribal fleets independently owned and operated and fleets harvested about 122,000 mt of to develop the capacity to harvest the is not dominant in its field. The RFA Pacific whiting, worth approximately tribal allocation may result in defines small governmental $14 million. During 2009, ex-vessel unharvested Pacific whiting because jurisdictions as governments of cities, prices declined to about $119.00 per there is no regulatory mechanism to counties, towns, townships, villages, ton, presumably due to the worldwide reapportion. Similarly, there may be school districts, or special districts with recession. For 2010, the preliminary ex- unharvested Pacific whiting in the other populations of less than 50,000. vessel price returned to $160.00 per mt, sectors as well. In recent years the number of leading to approximately $27 million in Tribal fisheries include a mixture of participants engaged in the Pacific revenues, based on a total harvest of activities similar to the non-tribal whiting fishery has varied with changes 170,000 mt. fisheries, where tribal fisheries will in the whiting OY and economic For 2010, the tribes were initially deliver shoreside for processing or to a conditions. Pacific whiting shoreside allocated 49,939 mt. In September and mothership for at-sea processing. The vessels (26 to 29), mothership October, NMFS reapportioned a total of processing facilities that the tribes use processors (4 to 6), mothership catcher 16,000 mt from the tribal allocation to also process fish harvested by non-tribal vessels (11 to 20), catcher/processors (5 the non-tribal shorebased, mothership, fisheries. Increased allocations to tribal to 9), Pacific whiting shoreside first and catcher processor sectors. harvesters (harvest vessels are small Based on conversations with the receivers (8 to 16), and five whiting entities, tribes are small jurisdictions) tribes regarding their intent for the 2011 vessels participating in the Makah implies decreased allocations to non- tribal whiting fishery, a proposed tribal portion of the tribal whiting fishery, are tribal harvesters (a mixture of small and allocation of 66,908 mt is being the major units of this fishery. For 2011, large businesses). there may be additional vessels considered. Using the average ex-vessel There are no reporting, recordkeeping participating in the tribal whiting price of $160.00 per ton, the ex-vessel or other compliance requirements in the fishery. NMFS records suggest the gross value is estimated to be approximately proposed rule. annual revenue for each of the catcher/ $10,705,280. processor and mothership operations NMFS did not consider a broad range No Federal rules have been identified participating in the Pacific coast whiting of alternatives to the proposed that duplicate, overlap, or conflict with fishery exceeds $4.0 million. Therefore, allocation because the tribal allocation this action. they are not considered small is based primarily on the requests of the NMFS issued Biological Opinions businesses. NMFS records also show tribes for a level of participation in the under the Endangered Species Act that 10–43 catcher vessels have taken fishery that will allow them to exercise (ESA) on August 10, 1990, November part in the mothership fishery on an their treaty right to fish for whiting. 26, 1991, August 28, 1992, September annual basis since 1994. These Consideration of amounts lower than 27, 1993, May 14, 1996, and December companies are all assumed to be small the tribal requests is not appropriate 15, 1999, pertaining to the effects of the businesses, although some of these here, where based on the information Pacific Coast groundfish FMP fisheries vessels may be affiliated with larger available to NMFS the requested on Chinook salmon (Puget Sound, processing companies. Since 1994, 26– amount appears to be within the amount Snake River spring/summer, Snake 31 catcher vessels have annually to which the tribes are entitled. A higher River fall, upper Columbia River spring, participated in the shoreside whiting amount would arguably be within the lower Columbia River, upper Willamette fishery. These companies are all scope of the treaty right, but would River, Sacramento River winter, Central assumed to be small businesses, unnecessarily limit the non-tribal Valley spring, California coastal), coho although some of the vessels may be fishery. A no action alternative was salmon (Central California coastal, affiliated with larger processing considered, but the regulatory structure southern Oregon/northern California companies. Vessels participating in the provides for a tribal allocation on an coastal), chum salmon (Hood Canal tribal whiting fishery are presumed to annual basis only. Therefore, no action summer, Columbia River), sockeye be small businesses, whereas the Tribes would result in no allocation of Pacific salmon (Snake River, Ozette Lake), and are presumed to be small government whiting to the tribal sector in 2011, steelhead (upper, middle and lower jurisdictions. inconsistent with NMFS’ obligation to Columbia River, Snake River Basin, Pacific whiting has grown in manage the fishery consistent with the upper Willamette River, central importance, especially in recent years. tribes’ treaty rights. Given that the California coast, California Central Through the 1990s, the volume of Makah and Quileute tribes have made Valley, south/central California, Pacific whiting landed in the fishery specific requests for allocations in 2011, northern California, southern increased. In 2002 and 2003, landings of this alternative received no further California). These biological opinions Pacific whiting declined due to consideration. have concluded that implementation of information showing the stock was With the implementation of Fishery the FMP for the Pacific Coast groundfish depleted and the subsequent regulations Management Plan amendments 20 and fishery was not expected to jeopardize that restricted harvest in order to 21, the ability to reapportion Pacific the continued existence of any rebuild the species. Over the years whiting from tribal to non-tribal endangered or threatened species under 2003–2007, estimated Pacific whiting fisheries was eliminated. Similarly, the jurisdiction of NMFS, or result in

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the destruction or adverse modification concluded that incidental take in the Pursuant to Executive Order 13175, of critical habitat. groundfish fisheries is within the this proposed rule was developed after NMFS reinitiated a formal section 7 overall limits articulated in the meaningful consultation and consultation under the ESA in 2005 for Incidental Take Statement of the 1999 collaboration with tribal officials from both the Pacific whiting midwater trawl Biological Opinion. The groundfish the area covered by the FMP. Under the fishery and the groundfish bottom trawl bottom trawl limit from that opinion Magnuson-Stevens Act at 16 U.S.C. fishery. The December 19, 1999, was 9,000 fish annually. NMFS will 1852(b)(5), one of the voting members of Biological Opinion had defined an continue to monitor and collect data to the Pacific Council must be a 11,000 Chinook incidental take analyze take levels. NMFS also representative of an Indian tribe with threshold for the Pacific whiting fishery. reaffirmed its prior determination that federally recognized fishing rights from During the 2005 Pacific whiting season, implementation of the Groundfish FMP the area of the Council’s jurisdiction. the 11,000 fish Chinook incidental take is not likely to jeopardize the continued NMFS has met and continues to meet threshold was exceeded, triggering existence of any of the affected ESUs. with tribal officials and/or senior staff to reinitiation. Also in 2005, new data Lower Columbia River coho (70 FR address both their short and long term from the West Coast Groundfish 37160, June 28, 2005) were recently interests regarding Pacific whiting. Observer Program became available, listed and Oregon Coastal coho (73 FR allowing NMFS to complete an analysis 7816, February 11, 2008) were recently List of Subjects in 50 CFR Part 660 of salmon take in the bottom trawl relisted as threatened under the ESA. Fisheries, Fishing, Indian fisheries. The 1999 biological opinion concluded fishery. Dated: March 31, 2011. NMFS prepared a Supplemental that the bycatch of salmonids in the Biological Opinion dated March 11, Pacific whiting fishery were almost John Oliver, 2006, which addressed salmon take in entirely Chinook salmon, with little or Deputy Assistant Administrator for both the Pacific whiting midwater trawl no bycatch of coho, chum, sockeye, and Operations, National Marine Fisheries Service. and groundfish bottom trawl fisheries. steelhead. In its 2006 Supplemental Biological The Southern Distinct Population For the reasons set out in the Opinion, NMFS concluded that catch Segment (DPS) of green sturgeon was preamble, 50 CFR part 660 is proposed rates of salmon in the 2005 whiting listed as threatened under the ESA (71 to be amended as follows: FR 17757, April 7, 2006). The southern fishery were consistent with PART 660—FISHERIES OFF WEST DPS of Pacific eulachon was listed as expectations considered during prior COAST STATES consultations. Chinook bycatch has threatened on March 18, 2010, under averaged about 7,300 fish over the last the ESA (75 FR 13012). NMFS has 1. The authority citation for part 660 15 years and has only occasionally reinitiated consultation on the fishery, continues to read as follows: exceeded the reinitiation trigger of including impacts on green sturgeon, eulachon, marine mammals, and turtles. Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 11,000 fish. 773 et seq., and 16 U.S.C. 7001 et seq. Since 1999, annual Chinook bycatch After reviewing the available has averaged about 8,450 fish. The information, NMFS has concluded that, 2. In § 660.50 paragraph (f)(4) is Chinook ESUs most likely affected by consistent with Sections 7(a)(2) and 7(d) revised to read as follows: the whiting fishery has generally of the ESA, the proposed action would § 660.50 Pacific Coast treaty Indian improved in status since the 1999 ESA not jeopardize any listed species, would fisheries. section 7 consultation. Although these not adversely modify any designated species remain at risk, as indicated by critical habitat, and would not result in * * * * * their ESA listing, NMFS concluded that any irreversible or irretrievable (f) * * * the higher observed bycatch in 2005 commitment of resources that would (4) Pacific whiting. The tribal does not require a reconsideration of its have the effects of foreclosing the allocation for 2011 is 66,908 mt. prior ‘‘no jeopardy’’ conclusion with formulation or implementation of any * * * * * respect to the fishery. For the reasonable and prudent alternative [FR Doc. 2011–8077 Filed 4–4–11; 8:45 am] groundfish bottom trawl fishery, NMFS measures. BILLING CODE 3510–22–P

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Notices Federal Register Vol. 76, No. 65

Tuesday, April 5, 2011

This section of the FEDERAL REGISTER Committee on Regulation been updated since then resulting in contains documents other than rules or The Committee on Regulation will this correction. The following proposed rules that are applicable to the information is the updated Proposed public. Notices of hearings and investigations, meet to consider a draft recommendation addressing various Action. The Forest Service proposes to committee meetings, agency decisions and eradicate, control, or contain invasive rulings, delegations of authority, filing of issues associated with the timing, plants within the Malheur National petitions and applications and agency availability, confidentiality, and impact statements of organization and functions are of comments submitted during agency Forest. The Proposed Action is to treat examples of documents appearing in this rulemakings. invasive plants using integrated section. Date: Monday, April 25, 2011, from 2 methods including chemical (herbicides p.m. to 5 p.m. and adjuvants), physical treatments Designated Federal Officer: Reeve T. (mechanical and manual treatment), and ADMINISTRATIVE CONFERENCE OF Bull. biological controls. These treatments THE UNITED STATES will be used on existing infestations Committee on Adjudication (approximately 2,287 acres) or new Committees on Rulemaking, The Committee on Adjudication will infestations, including new plant Regulation, and Adjudication meet to consider a draft species that currently are not found on recommendation on the use of video the Forest. Treatment could be ACTION: Notice of public meetings. hearings by Federal agencies, examining anywhere on Forest Service system lands including rangelands, wilderness, SUMMARY: Notice is hereby given of the costs and benefits of video hearings as they are currently being used and the timber harvest areas, along roads and public meetings of three committees of road rights-of-way (including the Assembly of the Administrative possibilities for expanding their use by agencies. The Committee on decommissioned roads), along trail Conference of the United States (ACUS). routes, at dispersed and developed Each committee will meet to discuss Adjudication will also hear from Lenni B. Benson and Russell Wheeler, recreation sites, and on other disturbed recommendations for consideration by sites (i.e. fires, flood events, and rock the full Conference. Complete details consultants for the ACUS study on Immigration Adjudication, who will sources) where invasive plants are regarding each committee’s meeting, located. Mulching, seeding and planting related research reports, how to attend provide information about the plan for the study and receive comments from of competitive, desirable vegetation may (including information about remote occur to restore treated sites. access and obtaining special the committee. DATES: accommodations for persons with Date: Wednesday, April 27, 2011, Comments concerning the scope disabilities), and how to submit from 9:15 a.m. to 12:15 p.m. of the analysis must be received by May comments to the committee can be Designated Federal Officer: Funmi E. 5, 2011. The draft environmental impact found in the ‘‘Research’’ section of the Olorunnipa. statement is expected March 2012 and the final environmental impact ACUS Web site, at http://www.acus.gov. Dated: March 31, 2011. statement is expected March 2013. Comments may be submitted by e- Jonathan R. Siegel, mail to [email protected], with the ADDRESSES: Send written comments to Director of Research & Policy. Teresa Raaf, Forest Supervisor, Malheur name of the relevant committee in the [FR Doc. 2011–8031 Filed 4–4–11; 8:45 am] subject line, or by postal mail to ‘‘[Name National Forest, P.O. Box 909, John Day, BILLING CODE 6110–01–P of Committee] Comments’’ at the address OR 97845. Comments may also be sent given below. via facsimile to 541–575–3002. Electronic comments in acceptable plain ADDRESSES: The meetings will be held at DEPARTMENT OF AGRICULTURE text (.txt), rich text (.rtf), or Word (.doc) 1120 20th Street, NW., Suite 706 South, may be submitted to: comments- Washington, DC 20036. Forest Service [email protected]. FOR FURTHER INFORMATION CONTACT: Please put ‘‘Malheur NF Invasive Plants Malheur National Forest; Oregon; Designated Federal Officer for the Treatment Project’’ occurs in the subject Malheur National Forest Site-Specific individual committee, ACUS, 1120 20th line. Invasive Plants Treatment Project Street, NW., Suite 706 South, FOR FURTHER INFORMATION CONTACT: Washington, DC 20036; Telephone 202– AGENCY: Forest Service, USDA. Carole Holly, Project Leader, Phone 480–2080. ACTION: Correction—Notice of intent to 541–575–3026 or e-mail: SUPPLEMENTARY INFORMATION: prepare an environmental impact [email protected]. Individuals who use Committee on Rulemaking statement. telecommunication devices for the deaf The Committee on Rulemaking will SUMMARY: On March 31, 2006 the (TDD) may call the Federal Information meet to consider a draft Malheur National Forest published a Relay Service (FIRS) at 1–800–877–8339 recommendation concerning legal issues Notice of Intent (NOI) to prepare an between 8 a.m. and 8 p.m., Eastern agencies face in conducting e- Environmental Impact Statement (EIS) Time, Monday through Friday. Rulemaking. for a similar project (Federal Register SUPPLEMENTARY INFORMATION: Date: Wednesday, April 20, 2011, Vol. 72, No. 62, page 16281–1628). from 9:30 a.m. to 12:30 p.m. There has been a delay in filing the 2006 Purpose and Need for Action (Updated) Designated Federal Officer: Emily F. draft EIS and the invasive plant Invasive plants displace or alter Schleicher. inventory and proposed action have native plant communities and cause

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long-lasting economic and ecological information regarding herbicides and routes, at dispersed and developed problems within and outside the the causes of the spread of invasive recreation sites, and on other disturbed National Forest. They can increase fire plants. sites (i.e. fires, flood events, and rock hazards, degrade fish and wildlife The Pacific Northwest Region sources) where invasive plants are habitat, out-compete native plants, Invasive Plant Program Preventing and located. Mulching, seeding and planting impair water quality and watershed Managing Invasive Plants FEIS (referred of competitive, desirable vegetation may health, and adversely affect a wide to as the R6 2005 FEIS) (USDA Forest occur to restore treated sites. A map of variety of other resource values such as Service, 2005a) and Record of Decision invasive plant locations can be found on scenic beauty and recreational for Invasive Plant Program Management the Malheur National Forest Web site at opportunities. Invasive plants can (referred to as the R6 2005 ROD) (USDA http://www.fs.fed.us/r6/malheur/ spread rapidly across the landscape to Forest Service 2005b). Vectors and land&resourcesmanagement/projects/. all land ownerships. Field inventories causes of invasive plant spread were Based on surveys, inventories and have identified about 30 different explored in detail and new standards for anecdotal reports accumulated over the invasive plant species within the prevention, site treatment and last several years, target invasive species boundaries of the Forest. Species of restoration, and an updated list of occupy approximately 2,287 acres on greatest concern include Canada thistle, herbicides for effectively responding to the Forest. The infestations are broadly houndstongue, diffuse knapweed, invasive plant threats were added. distributed, often occurring in areas of Dalmatian toadflax, whitetop, and sulfur The prevention standards have been high spread potential (e.g., along roads). cinquefoil, among others. Our ability to applied to land use decisions made There are likely additional invasive prevent or minimize the adverse since the R6 2005 ROD was adopted. plant sites that have not yet been impacts of these and other invasive However, the treatment and restoration identified. plants is greatest if populations can be part of the Malheur invasive plant The Proposed Action would treat treated while they are small and in the control program is not consistent with existing infestations according to Forest early stages of invasion. Additional the 2005 standards and needs to be Plan standards. Specific project design benefits of early stage treatments updated. New and existing invasive features would be implemented to include reduced treatment costs, less plant populations on the Malheur minimize unintended, adverse effects to chemical use, and less ground and National Forest require more timely, non-target plants, animals, water, and habitat disturbance. The purpose of effective and cost-efficient treatment people. New invasive plants detected on treating invasive plant infestations is to actions to comply with the intent of the the Forest (beyond the current maintain or improve the diversity, R6 2005 ROD (which was incorporated inventory) would also be treated using function, and sustainability of desired into the Malheur Forest Plan). an ‘‘Early Detection and Rapid Response native plant communities and other In addition, after the R6 2005 ROD (EDRR)’’ process. Ground based herbicide application natural resources that can be adversely signed, a new herbicide (aminopyralid) methods would be used based on impacted by invasive plant species. became available. Aminopyralid (also accessibility, topography, and the size of Without action, invasive plant known as Milestone TM) is specifically treatment areas. No aerial treatment is populations will become increasingly labeled for treatment of invasive plants proposed. Spot and selective spraying difficult and costly to control and will in forested settings. This herbicide is where individual and groups of plants further degrade forest and grassland effective on hard to control invasive are targeted would be the primary ecosystems. Invasive plants will plant species such as hawkweed, method of application; however some continue to expand and spread every knapweed, and Canada thistle. It is herbicide broadcasting may occur from year without effective treatment (the R6 preferred by invasive plant specialists at the state and county level. ATV or trucks. Broadcast treatments 2005 FEIS estimated a rate of 8–12 would occur when necessary based on percent per year; this rate may be Previous Public Outreach the size, density or distribution of target reduced due to adherence to prevention The MNF scoped on this project species. ATVs may be used to facilitate standards in the R6 2005 ROD). previously (a (NOI) to prepare an EIS broadcast in otherwise inaccessible The Malheur National Forest has been requesting public input was published areas. Ongoing monitoring of each site treating invasive plants without the in the Federal Register Volume 71, No. would dictate the treatment method, authorization to rapidly respond to new 62/March 31, 2006 on pages 16281– whether herbicides are needed, and the infestations or the use of herbicides (an 16282). Regional and local workload type of continued or follow-up exception is that herbicides have been prevented us from being able to treatments needed. Acreage treated used in spot treatments totaling 10–20 complete an EIS during the intervening would average up to 2,300 acres per acres/year along roads on the former years. The new Proposed Action is year, with a total of 23,000 acres treated Snow Mountain Ranger District— based on an updated inventory of over the life of the project (about 10 Ochoco National Forest). However, invasive plants that was recently years). Herbicide treatments would be many invasive target species require completed (February 2011). done in accordance with label herbicides for effective treatment. advisories, USDA Forest Service Monitoring has shown physical Proposed Action policies, and Forest Plan management treatments alone cannot control invasive The Proposed Action is to treat direction. Specific design features species. A previous attempt to authorize invasive plants using integrated would be applied to minimize or the use herbicides was made, but the methods including chemical (herbicides eliminate the potential for invasive project was litigated and enjoined. In and adjuvants), physical treatments plant treatments to adversely affect non- December 2002, the U.S. District Court (mechanical and manual treatment), and target plants, animals, human health, (Blue Mountain Biodiversity Project v. biological controls. Treatment could be water quality, and aquatic organisms. US Forest Service, CV 01–703–HA) anywhere on Forest Service system The R6 2005 ROD (now part of the concluded that the Malheur National lands including rangelands, wilderness, Malheur Forest Plan) authorized the use Forest Environmental Assessment for timber harvest areas, along roads and of ten herbicide active ingredients. Each invasive plant control was insufficient road rights-of-way (including of the ten herbicides is known to be because it failed to address new decommissioned roads), along trail effective on the target species found on

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the Forest. A given herbicide may be through recently sprayed areas may submit anonymous comments will not effective on many target species but increase the risk, particularly to people have standing to appeal the subsequent each site would usually be treated with who have heightened sensitivity to decision under 36 CFR 215. only one of the ten approved herbicides chemicals. In addition, health Dated: March 28, 2011. (some tank mixes may be used); consequences could result from well Teresa Raaf, however, a different herbicide might be water and other drinking water Forest Supervisor. used in a follow-up treatment. The more contaminated by herbicides. herbicides choices in the toolbox, the Treatment Effectiveness: Existing [FR Doc. 2011–7727 Filed 4–4–11; 8:45 am] better the effect expected over time (R6 invasive species populations may BILLING CODE 3410–11–P 2005 FEIS page 4–18, 4–26). continue to expand and new A site-specific, non-significant populations could become established amendment to the Malheur Forest Plan without using all methods aggressively. DEPARTMENT OF AGRICULTURE is also proposed to add an 11th Wildlife: Herbicides, particularly Forest Service herbicide, aminopyralid, to the list of when applied through broadcast authorized herbicides for use on the spraying, may harm terrestrial wildlife Prince William Sound Resource Forest to treat invasive plants. species. Advisory Committee Aminopyralid was not labeled for Non-target Plants: Herbicides, wildland use in 2005; however, the R6 particularly when applied through AGENCY: Forest Service, USDA. 2005 ROD Standard 16 acknowledges broadcast spraying, may harm non- ACTION: Notice of meeting. that new herbicides may be added given target plants. proper analysis. Aminopyralid has Soil Biology: Herbicide use may harm SUMMARY: The Prince William Sound undergone extensive risk assessment soil organisms or soil biology. Resource Advisory Committee will meet since 2005. It is proposed for use Fish and Water: Herbicide treatments in Whittier, Alaska. The committee is because it would increase the on riparian areas have the potential to meeting as authorized under the Secure effectiveness of treatment for some adversely affect water quality and Rural Schools and Community Self- broadleaf target species, and reduce aquatic ecosystems. Determination Act (Pub. L. 110–343) and in compliance with the Federal potential adverse impacts, compared to Permits or Licenses Required herbicides authorized in the R6 2005 Advisory Committee Act. The purpose Pesticide application licenses will be ROD. Aminopyralid is likely to be of the meeting is to review, discuss and required for those implementing this effective on a large proportion of the select projects to be funded thru the project. Pesticide Use Proposals for current target species acreage. Secure Rural Schools Act. wilderness herbicide applications need DATES: The meeting will be held April Possible Alternatives to be signed by the Regional Forester; 22nd and April 23rd, 2011. otherwise Pesticide Use Proposals are The Forest Service is considering an ADDRESSES: The meeting will be held on alternative of treating without the use of signed by the Forest Supervisor. This the 15th floor of the Begich Towers Inc. aminopyralid and only using the 10 project may involve riparian herbicide building located at 100 Kenai Street, herbicides approved in the R6 2005 application subject to a Department of Whitter, AK. Written comments should ROD. The No Action alternative will Environmental Quality water quality be sent to Teresa Benson P.O. Box 280, also be considered, which would permit. Cordova, AK 99574. Comments may continue the current non-herbicide Scoping Process also be sent via e-mail to program on the Malheur National [email protected], or via facsimile to Forest. This notice of intent initiates a new scoping process to guide the (907) 424–7214. All comments, including names and Responsible Official development of the environmental addresses when provided, are placed in impact statement. Scoping comments The Responsible Official is the the record and are available for public from 2006 are part of the record and will Malheur National Forest Supervisor. inspection and copying. The public may be used to generate issues and inspect comments received at the Nature of Decision To Be Made alternatives for detailed study in the Cordova Ranger District (612 2nd Street, EIS. Scoping comments sent previously The Forest Supervisor will make the Cordova, AK) or the Glacier Ranger need not be re-sent; new comments are following decisions based on the District (145 Forest Station Road, also welcome. No public meetings are interdisciplinary analysis: (1) Whether Girdwood, AK). or not to authorize site-specific invasive planned. plant treatments using herbicides and It is important that reviewers provide FOR FURTHER INFORMATION CONTACT: other methods; (2) whether or not to their comments at such times and in Teresa Benson, Designated Federal implement an Early Detection and such manner that they are useful to the Official, c/o USDA Forest Service, P.O. Rapid Response process for infestations agency’s preparation of the Box 280, Cordova, Alaska 99574, that are detected over the next 5 to 15 environmental impact statement. telephone (907) 424–4742. years; (3) what mitigation measures Therefore, comments should be SUPPLEMENTARY INFORMATION: The (design features) are required and (4) provided prior to the close of the meeting is open to the public. The what monitoring and adaptive comment period and should clearly following business will be conducted: management will occur. articulate the reviewer’s concerns and The Prince William Sound Resource contentions. Advisory Committee (RAC) will be Preliminary Issues Comments received in response to discussing and voting on proposals that The following issues were identified this solicitation, including names and have been received from communities of in scoping that occurred in 2006: addresses of those who comment, will the Prince William Sound. The Human Health: The health of forestry be part of the public record for this proposals that may receive funding workers and the public may be at risk proposed action. Comments submitted would enhance forest ecosystems or from exposure to herbicides. Chemical anonymously will be accepted and restore and improve land health and spray drift or contact by walking considered; however, those who only water quality on the Chugach National

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Forest and other near-by lands Bhayana directly participated. See RDO, Charge One alleged that Respondent had including the communities of Chenega, at 2, 4. During the investigation, BIS violated Section 764.2(b) of the Cordova, Tatitlek, Valdez and Whittier. sought to determine, inter alia, the type Regulations when he caused, aided or The RAC is responsible for approving of graphite that had been exported by abetted the submission of a false and projects with funds made available from SparesGlobal, Inc. (‘‘SparesGlobal’’), of misleading SED. In Charge Two, the years 2008–2012. Pittsburgh, Pennsylvania, and the remaining charge at issue here,4 BIS The public is welcome to attend the ultimate end-user of the items. alleged that respondent violated Section April 22–23 RAC meeting. Committee Respondent was SparesGlobal’s primary 764.2(g) by making false and misleading discussion is limited to Forest Service sales representative for the transaction, statements to BIS Special Agents during staff and Committee members. However, working directly with the U.S. supplier the course of a BIS investigation. public input opportunity will be (Ameri-Source, Inc.) and freight Charge Two alleged, in full, as provided and individuals will have the forwarder (K.C. International Transport, follows: Inc.), and with SparesGlobal’s customer opportunity to address the Committee at Charge 2: 15 CFR 764.2(g): False Statement that time. (Taif Trading, LLC), a trading company Made to BIS During an Investigation Persons who wish to bring related located in Dubai, UAE. See RDO, at 4– matters to the attention of the 5; Order Partially Granting BIS’s Motion Bhayana made false and misleading 2 representations and statements in the course Committee may file written statements for Summary Decision, at 3, 5. of a BIS investigation. On or about September with the Committee staff before or after The transaction documentation 8, 2004, a BIS Special Agent asked about the the meeting. Public input sessions will included a mill test certificate certifying mill certificate relating to the Shipper’s be provided and individuals who made that the graphite being exported met the Export Declaration (SED) filed on December written requests by April 21st will have specifications for a type of graphite (CS 2, 2003, and referenced in Charge 1 above. In the opportunity to address the grade extruded graphite) produced by an e-mailed response to the Special Agent, Committee at those sessions. UCAR Carbon Company, doing business Bhayana stated: ‘‘The test certificate was provided by [our supplier] to us. We do not Dated: March 23, 2011. as GrafTech International Ltd. (‘‘UCAR/ GrafTech’’). As he later admitted, have any knowledge about its origin.’’ On or Teresa M. Benson, about November 3, 2004, Bhayana was again Respondent Bhayana knew that the District Ranger. asked about the mill certificate during an in- exported graphite items were not UCAR [FR Doc. 2011–8001 Filed 4–4–11; 8:45 am] person interview with BIS Special Agents, graphite and had not been produced by and again provided copies of this forged mill BILLING CODE 3410–11–P UCAR/Graftech. He also knew that the certificate to the Special Agents. During this mill test certificate, which was on interview, Bhayana also gave the BIS Special UCAR/GrafTech letterhead, had been Agents a signed written statement referencing DEPARTMENT OF COMMERCE created at Ameri-Source, Inc. (‘‘Ameri- the mill test certificate specifications or Source’’), not by UCAR/GrafTech. ‘‘specs,’’ in which, he indicated, ‘‘These specs Bureau of Industry and Security Respondent sent the mill test certificate which are being submitted here [to the Special Agents] are the material specs which [10–BIS–0001] to the freight forwarder to facilitate the were shipped under this shipment.’’ In fact, export, which occurred in December Manoj Bhayana, Respondent; Final Bhayana had worked with others to create 2003. RDO, at 4–5. the forged mill certificate falsifying the type Decision and Order During the course of BIS’s of graphite rod being exported and knew that This matter is before me upon a investigation of this matter, in a the certificate contained false information Recommended Decision and Order September 7, 2004 e-mail to a BIS when he provided it to the Special Agents. ‘‘ ’’ Special Agent, Respondent denied When confronted later in the same interview ( RDO ) of an Administrative Law Judge by the Special Agents with evidence that the (‘‘ALJ’’), as further described below.1 having any knowledge of the origin of the mill test certificate. Following certificate had been forged, Bhayana signed I. Background months of additional investigation, BIS a second written statement. In this second signed statement, Bhayana admitted that his As discussed in the RDO, the executed a search warrant at earlier statements to the Special Agents were allegations in this case stem from an SparesGlobal in November 2004. false. Specifically, Bhayana admitted that investigation by the Bureau of Industry Bhayana was present and was SparesGlobal’s supplier, Ameri-Source, Inc., and Security (‘‘BIS’’) of a sale and interviewed by BIS Special Agents. which was not the actual manufacturer or (unlicensed) export of graphite rods and During that interview, Respondent distributor of GrafTech’s UCAR graphite, pipes from the United States to provided the mill test certificate in ‘‘suppl[ied] * * * the certificate on Pakistan, via the United Arab Emirates response to the Special Agents’ [GrafTech] UCAR letterhead showing the [false] specs and mill test reports,’’ and then (‘‘UAE’’), in which Respondent Manoj questions about the exported items, knowing, but not informing the agents, ‘‘prepared some certificate and faxed it to us for the approval.’’ In so doing, Bhayana 1 I received the certified record from the ALJ, that the certificate contained false and committed one violation of Section 764.2(g) including the original copy of the RDO, for my misleading information. See RDO, at 5– of the Regulations. review on March 1, 2011. The RDO is dated 6. February 28, 2011, and incorporates the ALJ’s October 12, 2010 Order Partially Granting BIS’s In a Charging Letter issued on January (2002)), which has been extended by successive Motion for Summary Decision. As discussed further 15, 2010, BIS alleged that Respondent Presidential Notices, the most recent being that of infra, BIS moved for summary decision as to Charge Bhayana had committed two violations August 12, 2010 (75 FR 50,681 (Aug. 16, 2010)), has Two of the Charging Letter in July 2010. The Order of the Export Administration continued the Regulations in effect under the International Emergency Economic Powers Act (50 Partially Granting BIS’s Motion for Summary ‘‘ ’’ ‘‘ ’’ 3 Decision granted BIS summary decision on Charge Regulations ( EAR or Regulations ). U.S.C. 1701, et seq.). The violation remaining at Two, but reserved ruling as to the recommended issue in this case occurred in 2004. The Regulations sanction because Charge One was still pending. In 2 See note 1, supra. governing the violation at issue are found in the order to expedite resolution of this matter, BIS 3 The Regulations, which are currently codified at 2004 version of the Code of Federal Regulations (15 withdrew Charge One in November 2010. The 15 CFR parts 730–774 (2010), were issued pursuant CFR parts 730–774 (2004)). The 2010 Regulations Order Partially Granting BIS’s Motion for Summary to the Export Administration Act of 1979, as govern the procedural aspects of this case. Decision is part of the RDO, but where that Order amended (50 U.S.C. app. 2401–2420 (2000)) (the 4 As referenced supra at note 1 and as discussed is cited, for ease of reference, the citations are made ‘‘Act’’). Since August 21, 2001, the Act has been in further infra, BIS withdrew Charge One after BIS directly to the pertinent pages of that Order, rather lapse and the President, through Executive Order had moved for and been granted summary decision than citing it as an attachment to the RDO. 13,222 of August 17, 2001 (3 CFR, 2001 Comp. 783 as to Charge Two.

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Charging Letter, at 2.5 sum, to sanction Respondent’s violation Respondent’s attitude towards ensuring Respondent has been represented by of Section 764.2(g) appropriately and to compliance with the regulations still counsel throughout this litigation. In prevent or deter future violations. takes a backseat to personal factors.’’ Id. response to requests for admission On February 28, 2011, based on the (emphasis added). served by BIS, Respondent made a entire record (including the findings The ALJ rejected Respondent’s series of admissions, including that he and conclusions set forth in the Order repeated attempts to attribute his false knew throughout the investigation that Partially Granting BIS’s Motion for statements to an asserted lack of export the exported graphite rods and pipes Summary Decision), the ALJ issued the experience, training, or knowledge of were not UCAR graphite and had not RDO to the parties, in which he the Regulations. The ALJ ruled that even been produced by UCAR/GrafTech; that recommended that a denial period of accepting Respondent’s assertions as the mill test certificate had been created two years be assessed against true, his unlawful conduct did not at Ameri-Source, not by UCAR/ Respondent Bhayana. The RDO contains result from such factors. ‘‘Respondent’s GrafTech or any UCAR/GrafTech a detailed review of the facts and violation was not the result of a affiliate; and that when he was applicable law relating to both merits misinterpretation [of the Regulations], interviewed by BIS Special Agents in and sanctions issues in this case. but instead was an intentional decision November 2004, he knew, but did not Based on the record, the ALJ to provide misleading and false inform the agents, that the mill test determined, inter alia, that Respondent information rather than comply with the certificate he handed to them contained knowingly and willfully made false and requirements of the law and false and misleading information. See misleading statements during the course regulations.’’ RDO, at 10; see also id., at Order Partially Granting BIS’s Motion of a BIS investigation and that those 12 (‘‘Respondent’s actions were not an for Summary Decision, at 6–7, 9–10. statements impeded and hampered the unintentional or unknowing violation of BIS moved for summary decision as to investigation. See RDO, at 8 the [R]egulations.’’); see generally id., at Charge Two on July 30, 2010, and as (‘‘Respondent willfully committed a 9–13. part of that motion requested that the violation of the EAR’’ and ‘‘knowingly The ALJ also rejected Respondent’s ALJ recommend that Respondent’s tried to hide the fact that [the] mill test efforts to attribute responsibility for his export privileges be denied for a period certificate contained false and statements to his ‘‘low level’’ position at of at least two years. As set forth in his misleading information when SparesGlobal or justify his misconduct October 12, 2010 Order Partially questioned on it by BIS investigators.’’); based on his asserted fear that he would Granting BIS’s Motion for Summary id., at 9 (Respondent ‘‘imped[ed] an lose his job or work visa, concluding as Decision, the ALJ determined that export control investigation’’); id., at 10 follows: Charge Two had been proven by BIS (‘‘Respondent’s violation * * * was an Even if this [assertion] is accepted as and granted the motion for summary intentional decision to provide accurate, it does not provide a defense to decision as to that violation of Section misleading and false information rather making false statements to Government 764.2(g), but reserved ruling on a than comply with the requirements of officials during a formal investigation. * * * recommended sanction because Charge When a person provides information or the law and regulations’’); id., at 11 statements during an investigation, the law One was still pending. (‘‘Respondent’s actions hampered BIS’s allows persons to either provide truthful On November 12, 2010, BIS withdrew investigation.’’); and id., at 14 (a two- statements or make an assertion of privilege. Charge One of the Charging Letter in year denial order is an appropriate This applies equally to all individuals, even order to expedite resolution of this case. sanction in this case and ‘‘necessary for ‘‘lower’’ level employees, during the course of A briefing schedule was established on deterring persons from providing false investigations so [that] violations at all levels the issue of sanctions, and on November and misleading information that can be effectively investigated. In summary, Respondent chose to mislead the 23, 2010, Respondent filed his frustrates enforcing compliance with the Memorandum Regarding Possible investigators and appease his bosses, instead regulations.’’). of being truthful with BIS and complying Sanctions, contending at bottom that no The ALJ determined that Respondent with the regulations. Such a decision does sanction should be imposed against had demonstrated a serious disregard not show a good-faith misinterpretation of him. In his sanctions memorandum, for his export compliance the rules and is not a valid basis for Respondent asserted, inter alia, that he responsibilities when he made the false mitigation of sanctions. had started an ‘‘export business’’ after he and misleading statements at issue. See RDO, at 12–13. had left SparesGlobal in November RDO, at 9, 13–14. The ALJ also II. Review Under Section 766.22 2008, but that he could not afford to determined that the record shows that The RDO, together with the entire implement an effective export Respondent admittedly does not have record in this case, has been referred to compliance program. See RDO, at 13–14 the resources to implement an effective me for final action under Section 766.22 (discussing and citing Respondent’s compliance program in connection with of the Regulations. I find that the record Memorandum Regarding Possible the ‘‘export business’’ that Respondent supports the ALJ’s findings of fact and Sanctions, filed November 23, 2010, at claims to have started after he left conclusions of law that Respondent 11). In response, on December 6, 2010, SparesGlobal in late 2008.6 Id. at 13–14 violated Section 764.2(g) by making BIS renewed its request for a denial (quoting and citing Respondent’s order of at least two years in order, in false and misleading statements and Memorandum Regarding Possible representations to BIS during the course Sanctions, at 11). The ALJ found, 5 of an investigation. In addition to other As a result of the investigation, criminal charges furthermore, that compliance with the were brought against SparesGlobal, which in evidence submitted by BIS, Respondent October 2007, pled guilty in the United States export control laws still is not a priority effectively admitted the violation during District Court for the Western District of for Respondent and that Respondent’s Pennsylvania to conspiracy under 18 U.S.C. 371. discovery in response to BIS’s requests continued efforts to excuse his for admission. Moreover, Respondent BIS filed administrative charges against Ameri- ‘‘ Source (Case No. 08–BIS–15) and Ameri-Source misconduct demonstrate[] has not asserted in his response to the director Thomas Diener (Case No. 08–BIS–16) in RDO that the ALJ committed any error December 2008. Ameri-Source and Mr. Diener 6 As noted supra, BIS filing the Charging Letter settled those charges shortly after they were filed, in January 2010, and the record also indicates that as to the merits or that any of the ALJ’s with the final settlement orders issuing on February BIS issued a Proposed Charging Letter to findings or conclusions on the merits is 6, 2009. Respondent in January 2009. erroneous.

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I also find that the two-year denial the extent to which it could harm the subject to the Regulations that has been order recommended by the ALJ upon national security. Although the or will be exported from the United his review of the entire record is mitigation credit discussion quoted States, including financing or other appropriate, given the nature of the above did not affect the outcome of this support activities related to a violations, the facts of this case, and the case, I want to clarify that a respondent transaction whereby the Denied Person importance of deterring Respondent and who makes false statements to BIS acquires or attempts to acquire such others from seeking, through the during an investigation cannot properly ownership, possession or control; provision of false and misleading claim, and should not be accorded, information to BIS Special Agents, to mitigation credit relating to the subject C. Take any action to acquire from or thwart or impede BIS’s enforcement of of those false statements. to facilitate the acquisition or attempted the Regulations.7 Those who make false In short, a respondent should not be acquisition from the Denied Person of or misleading statements to BIS Special allowed to reap any benefit from such any item subject to the Regulations that Agents during the course of an false or misleading statements. With this has been exported from the United investigation strike at the heart of BIS’s clarification, I affirm the RDO.9 States; efforts to protect and promote the Accordingly, it is therefore ordered, D. Obtain from the Denied Person in national security. A denial order also is First, that, for a period of two (2) years the United States any item subject to the appropriate here given the ALJ’s from the date that this Order is Regulations with knowledge or reason findings, which are fully supported by published in the Federal Register, to know that the item will be, or is the record, that Respondent does not Manoj Bhayana, of 65 W. Manila intended to be, exported from the possess the resources or the necessary Avenue, Pittsburgh, Pennsylvania United States; or commitment to meet his compliance 15220, and his representatives, assigns, obligations under the export control agents or employees (hereinafter E. Engage in any transaction to service laws.8 collectively referred to as ‘‘Denied any item subject to the Regulations that Accordingly, based on my review of Person’’) may not participate, directly or has been or will be exported from the the entire record, I affirm the findings of indirectly, in any way in any transaction United States and which is owned, fact and conclusions of law in the RDO involving any commodity, software or possessed or controlled by the Denied without modification, but with one technology (hereinafter collectively Person, or service any item, of whatever clarification. The RDO states at one referred to as ‘‘item’’) exported or to be origin, that is owned, possessed or point that ‘‘[w]hile it may not fit clearly exported from the United States that is controlled by the Denied Person if such within Mitigation Factor 4 [of the EAR’s subject to the Regulations, or in any service involves the use of any item Penalty Guidance], the fact that other activity subject to the Regulations, subject to the Regulations that has been sensitive materials were not involved is including, but not limited to: or will be exported from the United ’’ given some weight in mitigation and A. Applying for, obtaining, or using States. For purposes of this paragraph, that ‘‘since Respondent’s representation any license, License Exception, or servicing means installation, seems to concern a non-sensitive item, export control document; that is a factor that can be considered maintenance, repair, modification or B. Carrying on negotiations testing. toward mitigation.’’ Id. at 11. I note first concerning, or ordering, buying, that the violation at issue is for making receiving, using, selling, delivering, Third, that, after notice and false statements during an investigation, storing, disposing of, forwarding, opportunity for comment as provided in not for making or causing an unlicensed transporting, financing, or otherwise Section 766.23 of the Regulations, any export. Moreover, the false statements servicing in any way, any transaction person, firm, corporation, or business made by Respondent went directly to involving any item exported or to be organization related to Manoj Bhayana the type and specifications of the items exported from the United States that is by affiliation, ownership, control, or that had been exported, information that subject to the Regulations, or in any position of responsibility in the conduct was crucial for BIS to assess whether the other activity subject to the Regulations; of trade or related services may also be export at issue required a license and or made subject to the provisions of this C. Benefitting in any way from any Order. 7 See, e.g., Guidance on Charging and Penalty transaction involving any item exported Determinations in Settlement of Administrative Fourth, that this Order does not Enforcement Cases (‘‘Penalty Guidance’’), or to be exported from the United States prohibit any export, reexport, or other Supplement No. 1 to part 766 of the Regulations, that is subject to the Regulations, or in transaction subject to the Regulations at ¶ III.A (Degree of Willfulness) (in cases involving any other activity subject to the where the only items involved that are a knowing or willful violation, a denial of export Regulations. privileges is appropriate, and/or a greater monetary subject to the Regulations are the penalty than BIS typically would seek); see also id. Second, that no person may, directly (even in cases involving simple negligence, a denial or indirectly, do any of the following: foreign-produced direct product of U.S.- order may be appropriate where, for example, the A. Export or reexport to or on behalf origin technology. violation involves essential interests protected by of the Denied Person any item subject to the Regulations, the violation is of such a nature Fifth, that this Order shall be served that a monetary penalty is an insufficient sanction, the Regulations; on Manoj Bhayana and on BIS, and shall or the nature of the violation indicates that a denial B. Take any action that facilitates the be published in the Federal Register. In order is needed to prevent future violations). acquisition or attempted acquisition by addition, the ALJ’s Recommended Although focused on the settlement context, the the Denied Person of the ownership, Penalty Guidance can be instructive where Decision and Order, except for the considered and applied consistent with the factual possession, or control of any item section related to the Recommended context of a litigated case. Order, shall also be published in the 8 9 See, e.g., Penalty Guidance, Supp. No. 1 to part The RDO inadvertently included (as Attachment Federal Register. 766, at ¶ IV.B (‘‘An otherwise appropriate denial or B) an outdated version of Section 766.22(e) of the exclusion order will be suspended on the basis of Regulations, regarding a possible appeal of the Final This Order, which constitutes the adverse economic consequences only if it is found Decision and Order. Section 766.22(e) recently was final agency action in this matter, is that future export control violations are unlikely deleted. See Export Administration Regulations; and if there are adequate measures (usually a Technical Amendments, 75 FR 33,682 (June 15, effective upon publication in the substantial civil penalty) to achieve the necessary 2010). Thus, Respondent should disregard Federal Register. deterrent effect.’’) (parenthetical in original). Attachment B of the RDO.

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Dated: March 28, 2011. Export Administration Regulations one violation of Section 764.2(b) of the Eric L. Hirschhorn, (EAR or Regulations).10 On January 15, regulations. Under Secretary of Commerce for Industry 2010, the Bureau of Industry and Charge 2 15 CFR 764.2(g)—False Statement and Security. Security (BIS or Agency) issued a Made to BIS During an Investigation Charging Letter against Respondent. In Certificate of Service Bhayana made false and misleading that Letter, BIS alleged Respondent representations and statements in the course I hereby certify that, on this 29st day committed two (2) violations of the of a BIS investigation. On or about September of March, 2011, I have served the Export Administration Act of 1979 8, 2004, a BIS Special Agent asked about the foregoing DECISION AND ORDER (Act), as amended and codified at 50 mill certificate relating to the Shipper’s signed by Eric L. Hirschhorn, Under U.S.C. App. §§ 2401–20 (2000), and the Export Declaration (SED) filed on December Secretary of Commerce for Industry and Export Administration Regulations 2, 2003, and referenced in Charge 1 above. In Security, in the matter of Manoj (EAR or Regulations), as amended and an emailed response to the Special Agent, ‘‘ Bhayana (Docket No: 10–BIS–0001) to codified at 15 CFR parts 730–74 (2000 Bhayana stated: The test certificate was provided by [our supplier] to us. We do not be send via United Parcel Service 11 & 2007) while working for ’’ postage pre-paid to: have any knowledge about its origin. On or SparesGlobal, Inc (SparesGlobal). The about November 3, 2004, Bhayana was asked Louis W. Emmi, Esquire, Attorney At charges read as follows: again about the mill certificate during an in- Law, 201 Lebanon Shops, 300 Mt. Charge 1 15 CFR 764.2(b)—Causing, Aiding person interview with BIS Special Agents, Lebanon Boulevard, Pittsburg, PA or Abetting a Violation of the Regulations and again provided copies of this forged mill 15234, (fax): 412–341–8464 (By certificate to the Special Agents. During this Facsimile and United Parcel Service). On or about December 2, 2003, Bhayana, interview Bhayana also gave the BIS Special while employed as a sales representative at Adrienne Frazier, Joseph Jest, John Agents a signed written statement referencing SparesGlobal, Inc., caused, aided, abetted the mill test certificate specifications or Masterson, Attorneys for Bureau of and permitted the submission of false and Industry and Security, Office of Chief ‘‘specs,’’ in which he indicated, ‘‘These specs misleading representations and statements to which are being submitted here [to Special Counsel for Industry and Security, the U.S. Government in connection with the Agents] are the material specs which were U.S. Department of Commerce, Room preparation and submission of a Shipper’s shipped under this shipment.’’ In fact, Export Declaration (SED), an export control HCHB 3839, 14th Street and Bhayana had worked with others to create document. The SED falsely represented and Constitution Ave., NW., Washington, the forged mill certificate falsifying the type stated that the item being exported from the DC 20230, (fax): 202–482–0085 of graphite rod being exported and knew that United States was ‘‘UCAR–GRAPHITE’’ and the certificate contained false information (Served via hand delivery). that the ultimate consignee was located in Honorable Michael J. Devine, U.S. Coast the United Arab Emirates (UAE). Bhayana when he provided it to the Special Agents. Guard, U.S. Customs House, 40 South and others created a forged mill certificate to When confronted later in the same interview Gay Street, Room 412, Baltimore, MD indicate that the item was ‘‘UCAR– by the Special Agents with evidence that the 20102, (fax): 410–962–5155, (By GRAPHITE.’’ Bhayana submitted the certificate had been forged, Bhayana signed a second written statement. In this second Facsimile and United Parcel Service). fraudulent mill certificate to the freight forwarder and told the freight forwarder that signed statement, Bhayana admitted that his ALJ Docketing Center, Attention: earlier statements to the Special Agents were Hearing Docket Clerk, 40 S. Gay the ultimate consignee was in the UAE, when the actual ultimate consignee was in false. Specifically, Bhayana admitted that Street, Room 412, Baltimore, Pakistan. Based on the information provided SparesGlobal’s supplier, Ameri-Source, Inc., Maryland 20212–4022 (By Untied by Bhayana, the freight forwarder filed the which was not the actual manufacturer or Parcel Service). SED stating that the item was ‘‘UCAR distributer of GrafTech’s UCAR graphite, lllllllllllllllllllll GRAPHITE’’ and the ultimate consignee was ‘‘suppl[ied] * * * the certificate on Andrea A. Monroe in the UAE. In so doing, Bhayana committed [GrafTech] UCAR letterhead showing the ’’ Office of the Under Secretary for Industry [false] specs and mill test reports, and the ‘‘ and Security 10 The Export Administration Regulations, 15 prepared some certificate and faxed it to us CFR parts 730–744, are issued under the Export for the approval.’’ In so doing, Bhayana United States of America Department of Administration Act of 1979 (EAA). The Act is committed one violation of Section 764.2(g) Commerce Bureau of Industry and codified at 50 U.S.C. app. §§ 2401–20 (2000), as of the Regulations. amended by the Notice on August 13, 2009 (74 FR Security 41,325 (Aug. 14, 2009)). On July 30, 2010, BIS filed a Motion IN THE MATTER OF: Manoj Bhayana, 11 The EAA and all regulations promulgated there for Summary Decision (BIS Motion) on Respondent. under expired on August 20, 2001. See 50 U.S.C. Charge 2, asserting it was entitled to App. 2419. Three days before its expiration, on summary decision as a matter of law. Docket No. 10–BIS–0001 August 17, 2001, the President declared the lapse of the EAA constitutes a national emergency. See Attached to its motion were fifteen (15) Recommended Decision and Order Exec. Order. No. 13222, reprinted in 3 CFR at 783– exhibits marked Government Exhibit Issued: February 28, 2011 784, 2001 Comp. (2002). Exercising authority under (Gov’t Ex.) 1–15. In support of the the International Emergency Economic Powers Act Motion BIS argued there were no Issued By: Hon. Michael J. Devine Presiding (‘‘IEEPA’’), 50 U.S.C. 1701–1706 (2002), the President maintained the effectiveness of the EAA genuine issues as to any material fact Appearances and its underlying regulations throughout the because of Bhayana’s statements to BIS For the Bureau of Industry and Security expiration period by issuing Exec. Order. No. 13222 Special Agents during the course of a Adrienne Frazier, Esq., Office of Chief on August 17, 2001. Id. The effectiveness of the BIS investigation and due to Bhayana’s Counsel for Industry & Security, U.S. export control laws and regulations were further extended by successive Notices issued by the admissions regarding the false mill Department of Commerce, Room H– President; the most recent being that of August 15, certificate in the transaction that is the 3839, 14th Street & Constitution Ave., 2007. See Notice: Continuation of Emergency subject of this matter. BIS’s Motion did NW, Washington, DC 20230. Regarding Export Control Regulations, 72 FR 46, not address Charge 1. For Respondent Manoj Bhayana 137 (August 15, 2007). Courts have held that the On October 12, 2010, the undersigned Louis W. Emmi, Esq., 201 Lebanon Shops, continuation of the operation and effectiveness of 300 Mt. Lebanon Boulevard, Pittsburgh, the EAA and its regulations through the issuance issued an Order Partially Granting BIS’s PA 15234. of Executive Orders by the President constitutes a Motion for Summary Decision. In that valid exercise of authority. See Wisconsin Project Order, the undersigned found Charge 2 I. Preliminary Statement on Nuclear Arms Control v. United States Dep’t of Commerce, 317 F.3d 275, 278–79 (DC Cir. 2003); had been proven, but reserved ruling as This case arises from Manoj Times Publ’g Co. v. U.S. Department of Commerce, to the recommended sanction for the Bhayana’s (Respondent) violation of the 236 F.3d 1286, 1290 (11th Cir. 2001). violation because Charge 1 remained

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pending. That Order included Findings knowledge of the origin of the mill test settlement. Both parties have referenced of Fact and Ultimate Findings of Fact certificate. (BIS Motion—Ex. 5 at 7). Supplement No. 1 in their final and Conclusions of Law and is included 8. As part of BIS’s investigation, Respondent arguments and briefs in support of their as Attachment A of this Recommended was interviewed by BIS Special Agents position in this matter. at SparesGlobal’s offices on or about Both general factors and specific Decision and Order. November 3, 2004. (BIS Motion—Ex. 5 at On November 5, 2010, a prehearing 7–8). mitigating and aggravating factors are conference was held to discuss 9. During the interview, Respondent handed discussed in Supplement No. 1. Certain scheduling concerns in light of the the BIS Special Agents his file relating to factors may be given greater weight than Order Partially Granting Summary this export transaction, which included other factors. The Mitigating Factors Decision. During that prehearing the fraudulent mill test certificate. (BIS include: Motion—Ex. 5 at 7–8).12 conference call, BIS informed the 1. The party self-disclosed the violations undersigned and Respondent they III. Recommended Ultimate Findings of (given great weight). intended to withdraw Charge 1. On Fact and 2. The party created an effective export November 12, 2010, BIS filed its Notice compliance program (given great of Withdrawal of Charge 1. Conclusions of Law weight). With the withdrawal of Charge 1, the 1. Respondent and the subject matter of this 3. The violations resulted from a good-faith only issue remaining is the appropriate proceeding are properly within the misinterpretation. jurisdiction of the BIS in accordance sanction for the violation found proved 4. The export would likely have been granted with the Export Administration Act of upon request. in Charge 2. On November 23, 2010, 1979 (50 U.S.C. App. §§ 2401–2420) and 5. The party does not have a history of past Respondent filed his final written brief the Export Administration Regulations export violations. and closing arguments. On December 6, (15 CFR parts 730–774). 6. The party cooperated to an exception 2010, BIS submitted their final written 2. When Respondent handed the file and the degree during the investigation. brief and closing arguments. The mill test certificate to the BIS Special 7. The party provided substantial assistance following recommended findings of fact Agents on or about November 3, 2004, he in the BIS investigation. and recommended decision is based on knew the certificate had been created at 8. The violation did not involve harm of the a careful review of the facts and record Ameri-Source and not by UCAR/ nature the regulations were intended to GrafTech or any UCAR/GrafTech protect. as a whole including the parties final affiliate. (BIS Motion—Ex. 5 at 7–8). 9. The party had little export experience and briefs, the facts found in the Order 3. When Respondent handed the BIS Special was not familiar with the requirement. Partially Granting the BIS Motion for Agents the file and mill test certificate on 15 CFR part 766, Supp No. 1, at § III(B). Summary Decision and the applicable or about November 3, 2004, Bhayana The Aggravating Factors include: law and regulations. knew the certificate contained false and misleading information. (Id.). 1. The party deliberately hid the violations II. Recommended Findings of Fact 4. When Respondent handed the file and (given great weight). 1. SparesGlobal, Inc., of Pittsburgh, PA, certificate to the BIS Special Agents on 2. The party seriously disregarded export exported graphite rods and pipes from or about November 3, 2004, he knew, but responsibilities (given great weight). the United States on or about December did not inform the agents that some of 3. The violation was significant in view of 2, 2003. (BIS Motion—Ex. 5 at 3–4; Ex. the information in the file contained the sensitivity of the item (given great 6). false, inaccurate, and/or misleading weight). 2. Respondent was SparesGlobal’s primary information. (Id.). 4. The violation was likely to involve harm sales contact for this transaction. (BIS 5. Respondent is found to have made false of the nature the regulations intended to Motion—Ex. 5 at 1). and misleading representations to BIS protect. 3. During the transaction, Respondent was in Special Agents during the course of an 5. The value of the exports was high, contact with the U.S. company that investigation subject to the EAR, a resulting in need to serve an adequate supplied the graphite rods and pipes for violation of 15 CFR 764.2(g). penalty for deterrence. the transaction, Ameri-Source, Inc.; the 6. Other violations of law and regulations freight forwarder for the transaction, K.C. IV. Recommended Sanction occurred. 7. The party has a history of past export International Transport, Inc.; and A. Regulations SparesGlobal’s customer Taif Trading, violations. LLC, located in Dubai, UAE. (BIS Section 764.3 of the EAR establishes 8. The party lacked a systematic export Motion—Ex. 5 at 4–5). the sanctions that BIS may seek for the compliance effort. 4. The transaction documentation included a violations charged in this proceeding. 15 CFR part 766, Supp No. 1, at § III(B). mill test certificate certifying that the The sanctions permitted include: (1) A By examining the basic factors graphite being exported met the civil penalty, (2) a denial of export specifications for a type of graphite (CS associated with the violations and by grade extruded graphite) produced by privileges under the Regulations, and (3) considering the appropriate mitigating UCAR Carbon Company and Respondent an exclusion from practice. See 15 CFR and aggravating circumstances, an sent this certificate to the freight 764.3. Supplement Number 1 to 15 CFR appropriate penalty is determined. A forwarder, K.C. International Transport, part 766 (Supplement No. 1) provides review of the factors and circumstances Inc. to facilitate the export transaction at published nonbinding guidance on what specific to this case are discussed issue. (BIS Motion—Ex. 5 at 4–5; Ex. 8) BIS considers in making penalty below. 5. Respondent admitted that the exported determinations in considering B. Respondent’s Violations graphite rods were not UCAR graphite settlement of civil administrative and were not produced by UCAR/ In this case, Respondent is found to GrafTech. (BIS Motion—Ex. 5 at 5). enforcement cases. Various factors are 6. Respondent knew the mill test certificate considered by BIS including the degree have provided false or misleading had been created by Ameri-Source, Inc., of willfulness, the destination involved, statements to a BIS Special Agent and that it had been created using whether there were any related during the course of an investigation. UCAR/GrafTech letterhead. (BIS violations, and the timing of any (Order Partially Granting BIS’s Motion Motion—Ex. 5 at 6–8). for Summary Decision (Order)).13 As set 7. During a BIS investigation concerning this 12 The legal analysis for the determination to export transaction, in a September 7, grant the Motion for Summary Decision is 13 The Order Partially Granting BIS’s Motion for 2004 email that he sent to a BIS Special contained in the discussion section of that Order. Summary Decision issued by this court on October Agent, Respondent denied having any See Attachment A. 12, 2010 is Attachment A of this recommended

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forth in the Ultimate Findings of Fact importance. If an individual intends to within Mitigation Factor 4. See 15 CFR and Conclusions of Law, Respondent engage in the export of goods, part 766, Supp No. 1, at § III(B). The handed BIS Special Agents a file and compliance with export controls is record does not contain any evidence mill test certificate that Respondent mandatory, and maintaining that shows the exported goods (graphite) knew contained false and misleading employment is not an excuse for were a prohibited item. BIS asserts this information. (Order at 4). When violating the regulations. mitigation factor should not apply, since Respondent handed the file and No other aggravating factors seem the items in question were materials certificate to the BIS Special Agents, he applicable in this case. No evidence was subject to the EAR (15 CFR 734.3(a)) and knew, but did not inform the agents that presented that would establish Respondent was charged with making a some of the information in the file Respondent’s violation had false statement, not with making an contained false, inaccurate, and/or circumstances that fit within one of the unlicensed export. It appears the export misleading information. (Id.). Upon other aggravating factors. While transaction that formed the basis of the further investigation by BIS, Respondent Respondent admits his current company misrepresentation and violation would admitted to his false statements. (Order has not created a systematic export likely have been granted anyway. While at 6). compliance effort, no evidence was it may not fit clearly within Mitigation presented that shows he was Factor 4, the fact that sensitive materials Aggravating Factors responsible for or lacked a systematic were not involved is given some weight As addressed within the Ultimate export compliance effort at the time of in mitigation. If Respondent had made Findings of Fact and Conclusions of the violation. However, as discussed false statements about a highly sensitive Law, Respondent willfully committed a above, two aggravating factors are found and controlled item, such as nuclear violation of the EAR. While Respondent to exist that are given great weight when material, that would certainly be an has presented argument asserting his determining an appropriate sanction. aggravating factor. Likewise, since excuses for providing false information First, Respondent made a deliberate Respondent’s misrepresentation seems to BIS, he nevertheless knowingly and attempt to hide or conceal the violation to concern a non-sensitive item, that is willfully provided misleading and second, Respondent’s conduct a factor considered towards mitigation. information. An aggravating factor that demonstrated a serious disregard for Respondent’s third argument for is given great weight is a party’s export compliance responsibilities. mitigation is that he has not been found to have committed any past export deliberateness in hiding a violation, Mitigating Factors Aggravating Factor 1. 15 CFR part 766, violations, Mitigation Factor 5. See id. Supp No. 1, at § III(B). In this case, Within Respondent’s Memorandum No evidence has been provided showing Respondent knowingly tried to hide the Regarding Possible Sanctions for his Respondent has violated the EAR in the Violation (Memorandum), Respondent fact that a mill test certificate contained past. As such, Mitigation Factor 5 argues that several mitigating factors are false and misleading information when applies in this case. relevant in his case. First, he suggests questioned on it by BIS investigators. Respondent’s fourth argument for the violation was an isolated occurrence The court finds Respondent attempted mitigation is that he cooperated to an or the result of a good-faith to deliberately hide a violation. It was exceptional degree with BIS’s efforts to misinterpretation. (See Memorandum at only after further investigation and investigate SparesGlobal’s conduct, 7). This mitigation factor follows the confrontation with BIS Special Agents Mitigation Factor 6 and 7. See id. This general principle that while ignorance that Respondent eventually admitted to argument is not persuasive. The central of the law is typically not an excuse for his attempt to hide the true facts. violation relevant to this case revolves non-compliance, willful violations often An additional aggravating factor is around Respondent making false and receive higher penalties than misleading statements to BIS during the when a party demonstrates a serious unintentional violations. See Cheek v. course of an investigation. Attempting disregard for export compliance U.S., 498 U.S. 192, 199 (1991); See also to mislead the investigator does not responsibilities, Aggravating Factor 2. Iran Air v. U.S., 996 F.2d 1253 (DC Cir. equate to providing an exceptional Id. One such responsibility is to provide 1993). To support this assertion, degree of cooperating with BIS’s truthful statements to BIS Special Respondent states he was a low level investigation. To the contrary, Agents as they work to enforce our employee, worked long hours and did Respondent’s actions hampered BIS’s country’s export control laws. In this not take vacations, and felt great investigation. case, Respondent seriously disregarded pressure to obey his superior’s orders. Respondent’s fifth argument for his export compliance responsibilities. However, this does not present a good- mitigation is that at the time of the While working as an exporter, faith misinterpretation of the violation he had little or no export Respondent is found to have misled BIS regulations. Instead, this argument experience and was not familiar with during the course of an investigation to highlights the fact Respondent knew he export practices, Mitigation Factor 9. enforce export controls. Respondent’s was misleading investigators. Even if his See id. This mitigation factor is explanation for his actions included his assertions are accepted as accurate, it seemingly in place to account for assertions that he was just a low level demonstrates only that he decided to individuals who unknowingly violate employee, that the value of the commit a violation because he felt an export regulation, despite their good shipment was low, and that he might pressure from the company to do so. intentions to follow the regulations. In lose his job if he told the truth. Even if Respondent’s violation was not the this case, even if Respondent had little considered as accurate, Respondent’s result of a misinterpretation, but instead export experience, it has been found he justifications for impeding an export was an intentional decision to provide knowingly mislead investigators. control investigation demonstrate that misleading and false information rather Respondent’s actions were not an compliance with his export than comply with the requirements of unintentional or unknowing violation of responsibilities was of secondary the law and regulations. the regulations. To the contrary, Respondent’s second argument for Respondent made a conscious effort to decision and order. In that Order, Respondent was found to have violated Charge 2—providing false or mitigation is based upon the assertion mislead in an attempt to appease his misleading statements to a BIS Special Agent that the product he lied about did not bosses. Since Respondent’s violation is during the course of an investigation. require a license to ship, thus falling not a result of his inexperience with

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export regulations, Mitigation Factor 9 is found that future export control Undersecretary in keeping with 15 CFR is found not to apply to this case. violations are unlikely and if there are § 766.17(c) and 766.22. Finally, Respondent also asserts adequate measures to achieve a V. Recommended Order 6 throughout his pleadings that because necessary deterrent, usually a he was a low level employee, seemingly substantial civil penalty. Id. Here, since Redacted Section (Pages 15 to 18) more important people should be more Respondent asserts he has limited Within thirty (30) days after receipt of culpable. Even if this is accepted as means, providing a suspended civil this Recommended Decision and Order, accurate, it does not provide a defense penalty would not provide the intended the Under Secretary shall issue a written to making false statements to future deterrence. order, affirming, modifying, or vacating Government officials during a formal Additionally, while Respondent has the Recommended Decision and Order. apparently accepted the court’s ruling in investigation. Allowing lower level See 15 CFR 766.22(c). A copy of the regards to Charge Two, Respondent’s employees to escape liability based on Agency regulations for Review by the arguments minimize his responsibility ignorance would provide an avenue to Under Secretary can be found as for his own lapse of judgment. In his frustrate enforcement of legal export Attachment B. requirements. Additionally, violations Response, Respondent continues to by other persons or entities and actions attempt to excuse his actions by Hon. Michael J. Devine, against other persons or entities for describing his lower level position with Administrative Law Judge. violating the law are a collateral matter the company and excusing the behavior Done and dated February 28, 2011 at that is not demonstrated to be relevant on the outside pressures he felt. The Baltimore, Maryland. to these proceedings. In response to desire for continued employment is not Attachment A: Summary Decision Order of a valid excuse for providing false and October 12, 2010. Respondent’s assertions, BIS contends Attachment B: Notice of Review and Appeal the administrative proceedings against misleading information to investigators. rights 15 CFR 766.22. Respondent were apparently part of an Second, Respondent now runs his own enforcement effort against Respondent’s company; however, he has not Attachment B employer, SparesGlobal.14 The Court’s developed an effective export Notice of Review by Under Secretary decision is limited to the matters compliance program. (Memorandum at 15 CFR 766.22 Review by Under properly presented in the record. When 11). Respondent excuses his failure to develop an effective export compliance Secretary. a person provides information or (a) Recommended decision. For statements during an investigation, the program because ‘‘[h]e is not currently in a financial position * * *’’ to do so. proceedings not involving violations law allows persons to either provide relating to part 760 of the EAR, the truthful statements or make an assertion (Id.) Such a response demonstrates Respondent’s attitude towards ensuring administrative law judge shall of a privilege. This applies equally to all immediately refer the recommended individuals, even ‘‘lower’’ level compliance with the regulations still takes a backseat to personal factors. decision and order to the Under employees, during the course of Secretary. Because of the time limits investigations so violations at all levels There could be pressure from a company he is working with to violate provided under the EAA for review by can be effectively investigated. In the Under Secretary, service of the summary, Respondent chose to mislead the regulations and the pressure to do so to maintain a profit would seem to be recommended decision and order on the the investigators and appease his bosses, parties, all papers filed by the parties in instead of being truthful with BIS and no different that the pressure from SparesGlobal to keep his job. Finally, response, and the final decision of the complying with the regulations. Such a Under Secretary must be by personal decision does not show a good-faith the reference to any offers discussed during settlement negotiations by either delivery, facsimile, express mail or misinterpretation of the rules and is not other overnight carrier. If the Under a valid basis for mitigation of sanctions. party is generally inappropriate. While Respondent has pointed to Secretary cannot act on a recommended C. Denial of Export Privileges mitigating factors that apply, including decision and order for any reason, the In addition to the above mitigating his otherwise clean exporting history Under Secretary will designate another factors, Respondent also argues that and the non-sensitive nature of the parts Department of Commerce official to adverse financial hardships would he was exporting, I find that a two (2) receive and act on the recommendation. (b) Submissions by parties. Parties result from a denial of export privileges. year denial of export privileges as shall have 12 days from the date of Respondent asserts that his only source suggested by BIS is appropriate. issuance of the recommended decision of income is from his exporting Respondent seems to have many personal factors affecting his ability to and order in which to submit business, which made $29,450 last year. comply with the export regulations. simultaneous responses. Parties (Memorandum at 14). Furthermore, he And, while the court is sympathetic to thereafter shall have eight days from states if he is prevented from working in Respondent’s predicament, the court’s receipt of any response(s) in which to the export field, he would lose his determination in this matter is limited submit replies. Any response or reply Green Card status and would be forced to issuing a decision in keeping with the must be received within the time to return to India with his family. law and regulations to ensure specified by the Under Secretary. (Memorandum at 15). (c) Final decision. Within 30 days In accordance with the regulations, compliance with the export regulations. The court finds the argument of BIS after receipt of the recommended the financial impact of a denial of persuasive. An appropriate sanction is decision and order, the Under Secretary export privileges can be considered in necessary for deterring persons from shall issue a written order affirming, determining if such a denial should be providing false and misleading modifying or vacating the recommended suspended. 15 CFR part 766, Supp No. information that frustrates enforcing decision and order of the administrative 1, at § IV(B). However, a denial of export compliance with the regulations. In this law judge. If he/she vacates the privileges will only be suspended if it case, a two (2) year denial of export recommended decision and order, the 14 The issues of selective prosecution or abuse of privileges is deemed appropriate. Under Secretary may refer the case back discretion in proceeding in this matter have not Respondent may continue to seek to the administrative law judge for been raised in this matter. administrative clemency from the further proceedings. Because of the time

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limits, the Under Secretary’s review will part 908. NOAA uses the data for DEPARTMENT OF COMMERCE ordinarily be limited to the written scientific research, historical statistics, record for decision, including the international reports and other National Oceanic and Atmospheric transcript of any hearing, and any purposes. Administration submissions by the parties concerning the recommended decision. II. Method of Collection Proposed Information Collection; (d) Delivery. The final decision and Comment Request; Southeast Region Respondents have a choice of either implementing order shall be served on Gulf of Mexico Red Snapper IFQ electronic or paper forms. Methods of the parties and will be publicly Program available in accordance with § 766.20 of submittal include e-mail of electronic forms, mail and facsimile transmission AGENCY: National Oceanic and this part. Atmospheric Administration (NOAA). (e) Appeals. The charged party may of paper forms. ACTION: Notice. appeal the Under Secretary’s written III. Data order within 15 days to the United SUMMARY: The Department of States Court of Appeals for the District OMB Control Number: 0648–0025. Commerce, as part of its continuing of Columbia pursuant to 50 U.S.C. app. Form Number: NOAA Forms 17–4 effort to reduce paperwork and § 2412(c)(3). and 17–4A. respondent burden, invites the general [FR Doc. 2011–7847 Filed 4–4–11; 8:45 am] public and other federal agencies to take Type of Review: Regular submission. BILLING CODE 3510–DT–P this opportunity to comment on Affected Public: Business or other for- proposed and/or continuing information profit organizations. collections, as required by the DEPARTMENT OF COMMERCE Estimated Number of Respondents: Paperwork Reduction Act of 1995. 55. DATES: Written comments must be National Oceanic and Atmospheric submitted on or before June 6, 2011. Administration Estimated Time Per Response: 30 ADDRESSES: minutes per report (2 reports each). Direct all written comments to Diana Hynek, Departmental Proposed Information Collection; Estimated Total Annual Burden Comment Request; Weather Paperwork Clearance Officer, Hours: 55. Modification Activities Reports Department of Commerce, Room 6616, Estimated Total Annual Cost to 14th and Constitution Avenue, NW., AGENCY: National Oceanic and Public: $275. Washington, DC 20230 (or via the Atmospheric Administration (NOAA), Internet at [email protected]). Commerce. IV. Request for Comments FOR FURTHER INFORMATION CONTACT: ACTION: Notice. Comments are invited on: (a) Whether Requests for additional information or copies of the information collection SUMMARY: The Department of the proposed collection of information instrument and instructions should be Commerce, as part of its continuing is necessary for the proper performance directed to Rich Malinowski, (727) 824– effort to reduce paperwork and of the functions of the agency, including 5305 or [email protected]. respondent burden, invites the general whether the information shall have public and other Federal agencies to practical utility; (b) the accuracy of the SUPPLEMENTARY INFORMATION: take this opportunity to comment on agency’s estimate of the burden I. Abstract proposed and/or continuing information (including hours and cost) of the This request is for an extension of a collections, as required by the proposed collection of information; (c) currently approved information Paperwork Reduction Act of 1995. ways to enhance the quality, utility, and collection. National Marine Fisheries DATES: Written comments must be clarity of the information to be Service (NMFS) Southeast Region submitted on or before June 6, 2011. collected; and (d) ways to minimize the manages the Unites States (U.S.) ADDRESSES: Direct all written comments burden of the collection of information fisheries of the exclusive economic zone to Diana Hynek, Departmental on respondents, including through the (EEZ) off the South Atlantic, Caribbean, Paperwork Clearance Officer, use of automated collection techniques and Gulf of Mexico under the Fishery Department of Commerce, Room 6616, or other forms of information Management Plans (FMP) for each 14th and Constitution Avenue, NW., technology. Region. The Regional Fishery Washington, DC 20230 (or via the Comments submitted in response to Management Councils prepared the Internet at [email protected]). this notice will be summarized and/or FMPs pursuant to the Magnuson- FOR FURTHER INFORMATION CONTACT: included in the request for OMB Stevens Fishery Conservation and Requests for additional information or Management Act. NMFS manages the approval of this information collection; copies of the information collection red snapper fishery in the waters of the they also will become a matter of public instrument and instructions should be Gulf of Mexico under the Reef Fish directed to Karen Williams, (301) 734– record. FMP. The Individual Fishing Quota 1196 or [email protected]. Dated: March 31, 2011. (IFQ) program was implemented to SUPPLEMENTARY INFORMATION: Gwellnar Banks, reduce the overcapacity in the fishery and end the derby fishing conditions I. Abstract Management Analyst, Office of the Chief Information Officer. that resulted from that Section 6(b) of Public Law 92–205 [FR Doc. 2011–8002 Filed 4–4–11; 8:45 am] overcapitalization. requires that persons who engage in The recordkeeping and reporting weather modification activities (e.g., BILLING CODE 3510–KD–P requirements at 50 CFR part 622 form cloud seeding) provide reports prior to the basis for this collection of and after the activity. They are also information. NMFS Southeast Region required to maintain certain records. requests information from fishery The requirements are detailed in 15 CFR participants. This information, upon

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receipt, results in an increasingly more DEPARTMENT OF COMMERCE Estimated Time per Response: 2 efficient and accurate database for hours, 30 minutes. management and monitoring of the National Oceanic and Atmospheric Estimated Total Annual Burden fisheries of the EEZ of Gulf of Mexico. Administration Hours: 2,400. Estimated Total Annual Cost to II. Method of Collection Proposed Information Collection; Public: $0 in recordkeeping/reporting Paper applications, electronic reports, Comment Request; Cooperative costs. and telephone calls are required from Charting Programs IV. Request for Comments participants, and methods of submittal AGENCY: National Oceanic and include internet, electronic forms, and Atmospheric Administration (NOAA). Comments are invited on: (a) Whether facsimile transmission of paper forms. ACTION: Notice. the proposed collection of information is necessary for the proper performance III. Data SUMMARY: The Department of of the functions of the agency, including OMB Control Number: 0648–0551. Commerce, as part of its continuing whether the information shall have Form Number: None. effort to reduce paperwork and practical utility; (b) the accuracy of the Type of Review: Regular submission respondent burden, invites the general agency’s estimate of the burden (extension of a currently approved public and other Federal agencies to (including hours and cost) of the collection). take this opportunity to comment on proposed collection of information; (c) Affected Public: Business or other for- proposed and/or continuing information ways to enhance the quality, utility, and profit organizations. collections, as required by the clarity of the information to be Estimated Number of Respondents: Paperwork Reduction Act of 1995. collected; and (d) ways to minimize the 11,685. DATES: Written comments must be burden of the collection of information Estimated Total Annual Burden submitted on or before June 6, 2011. on respondents, including through the Hours: 1,038. ADDRESSES: Direct all written comments use of automated collection techniques Estimated Time Per Response: to Diana Hynek, Departmental or other forms of information Notification of Landing Time Form, Paperwork Clearance Officer, technology. three minutes; Dealer Account Department of Commerce, Room 6616, Comments submitted in response to Activation, Shareholder Account 14th and Constitution Avenue, NW., this notice will be summarized and/or Activation, and Transfer of Allocation, 5 Washington, DC 20230 (or via the included in the request for OMB minutes; Dealer Transaction Report, Internet at [email protected]). approval of this information collection; seven minutes; Annual Dealer Report, FOR FURTHER INFORMATION CONTACT: they also will become a matter of public Fisherman Account Activation, Annual Requests for additional information or record. Shareholder Report, and Active Vessels copies of the information collection Dated: March 21, 2011. Report, 10 minutes; Transfer for instrument and instructions should be Allocation Form, 15 minutes. Gwellnar Banks, directed to Ken Forster, (301) 713–2717 Management Analyst, Office of the Chief Estimated Total Annual Cost to x153 or [email protected]. Public: $383,764. Information Officer. SUPPLEMENTARY INFORMATION: [FR Doc. 2011–8015 Filed 4–4–11; 8:45 am] IV. Request for Comments I. Abstract BILLING CODE 3510–JE–P Comments are invited on: (a) Whether This request is for an extension of a the proposed collection of information current information collection. DEPARTMENT OF COMMERCE is necessary for the proper performance The U.S. Coast Guard Auxiliary of the functions of the agency, including members report observations of changes National Oceanic and Atmospheric whether the information shall have that require additions, corrections or Administration practical utility; (b) the accuracy of the revisions to Nautical Charts, on the agency’s estimate of the burden NOAA Form 77–05. The U.S. Power RIN 0648–XP18 (including hours and cost) of the Squadrons use a Web site to report the Marine Mammals; File No. 14334 proposed collection of information; same information. The information (c) ways to enhance the quality, provided is used by NOAA National AGENCY: National Marine Fisheries utility, and clarity of the information to Ocean Service to maintain and prepare Service (NMFS), National Oceanic and be collected; and (d) ways to minimize new additions that are used nationwide Atmospheric Administration (NOAA), the burden of the collection of by commercial and recreational Commerce. information on respondents, including navigators. through the use of automated collection ACTION: Notice; issuance of permit techniques or other forms of information II. Method of Collection amendment. technology. Methods of submittal include Internet SUMMARY: Notice is hereby given that Comments submitted in response to and facsimile transmission of paper that the Alaska SeaLife Center (ASLC), this notice will be summarized and/or forms. 301 Railway Avenue, Seward, AK 99664 included in the request for OMB III. Data (Dr. Ian Dutton, Responsible Party), has approval of this information collection; been issued a major amendment to OMB Control Number: 0648–0022. they also will become a matter of public Permit No. 14334. record. Form Number: NOAA 77–5. Type of Review: Regular submission ADDRESSES: The permit amendment and Dated: March 31, 2011. (extension of a current information related documents are available for Gwellnar Banks, collection). review upon written request or by Management Analyst, Office of the Chief Affected Public: Individuals or appointment in the following offices: Information Officer. households; not-for-profit institutions. Permits, Conservation and Education [FR Doc. 2011–8045 Filed 4–4–11; 8:45 am] Estimated Number of Respondents: Division, Office of Protected Resources, BILLING CODE 3510–22–P 600. NMFS, 1315 East-West Highway, Room

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13705, Silver Spring, MD 20910; phone DEPARTMENT OF COMMERCE of the Pribilof Island group in the Bering (301)713–2289; fax (301)713–0376; and Sea during collection of scat samples to National Oceanic and Atmospheric Alaska Region, NMFS, P.O. Box be used for characterizing the diet of Administration 21668, Juneau, AK 99802–1668; phone marine mammals in the region. The (907)586–7221; fax (907)586–7249. RIN 0648–XA346 amendment is valid through August 31, 2014. FOR FURTHER INFORMATION CONTACT: Marine Mammals; File Nos. 14330 and File No. 14335. On December 22, Amy Sloan or Tammy Adams, 14335 2010, notice was published in the (301)713–2289. Federal Register (75 FR 80470) that a AGENCY: National Marine Fisheries request for an amendment Permit No. SUPPLEMENTARY INFORMATION: On Service (NMFS), National Oceanic and December 13, 2010, notice was 14335 to conduct research on Steller sea Atmospheric Administration (NOAA), lions had been submitted by the Alaska published in the Federal Register (75 Commerce. FR 77616) that a request for an SeaLife Center. The permit has been ACTION: Notice; issuance of permit amendment Permit No. 14334 to amended to revise terms and conditions amendments. conduct research on Steller sea lions related to mitigation for temporary captivity, and associated post-surgical (Eumetopias jubatus) had been SUMMARY: Notice is hereby given that submitted by the above-named and hot-branding monitoring. the following applicants have been In compliance with the National applicant. The requested permit issued major amendments to permits for amendment has been issued under the Environmental Policy Act of 1969 (42 research on marine mammals in Alaska: U.S.C. 4321 et seq.), NMFS has authority of the Marine Mammal (File No. 14330) the Aleut Community Protection Act of 1972, as amended (16 determined that the activities proposed of St. Paul Island, Tribal Government, are consistent with the Preferred U.S.C. 1361 et seq.), the regulations Ecosystem Conservation Office, St. Paul governing the taking and importing of Alternative in the Final Programmatic Island, AK; and (File No. 14335) the Environmental Impact Statement for marine mammals (50 CFR part 216), the Alaska SeaLife Center, Seward, AK. Endangered Species Act of 1973, as Steller Sea Lion and Northern Fur Seal ADDRESSES: The permit amendments amended (ESA; 16 U.S.C. 1531 et seq.), Research (NMFS 2007), and that and related documents are available for issuance of the permit amendments and the regulations governing the review upon written request or by taking, importing, and exporting of would not have a significant adverse appointment in the following offices: impact on the human environment. endangered and threatened species (50 Permits, Conservation and Education CFR parts 222–226). As required by the ESA, issuance of Division, Office of Protected Resources, these permit amendments was based on Permit No. 14334–01 increases the NMFS, 1315 East-West Highway, Room a finding that such permit: (1) Was number of Steller sea lion mortalities 13705, Silver Spring, MD 20910; phone applied for in good faith; (2) will not allowed under the permit (from two to (301) 713–2289; fax (301) 713–0376; and operate to the disadvantage of such four over the duration of the permit), Alaska Region, NMFS, P.O. Box endangered species; and (3) is authorizes the transfer of sea lions to 21668, Juneau, AK 99802–1668; phone consistent with the purposes and and from an additional facility (The (907) 586–7221; fax (907) 586–7249. policies set forth in section 2 of the Dolfinarium in Harderwijk, FOR FURTHER INFORMATION CONTACT: ESA. Netherlands), and makes a correction to Tammy Adams or Amy Sloan, (301) an error in the take table. Dated: March 31, 2011. 713–2289. P. Michael Payne, In compliance with the National SUPPLEMENTARY INFORMATION: The Chief, Permits, Conservation and Education Environmental Policy Act of 1969 (42 requested permit amendments have Division, Office of Protected Resources, U.S.C. 4321 et seq.), NMFS has been issued under the authority of the National Marine Fisheries Service. determined that the activities proposed Marine Mammal Protection Act of 1972, [FR Doc. 2011–8076 Filed 4–4–11; 8:45 am] are consistent with the Preferred as amended (16 U.S.C. 1361 et seq.), the BILLING CODE 3510–22–P Alternative in the Final Programmatic regulations governing the taking and Environmental Impact Statement for importing of marine mammals (50 CFR Steller Sea Lion and Northern Fur Seal part 216), the Endangered Species Act of DEPARTMENT OF COMMERCE Research (NMFS 2007), and that 1973, as amended (ESA; 16 U.S.C. 1531 issuance of the permit would not have et seq.), the regulations governing the National Oceanic and Atmospheric a significant adverse impact on the taking, importing, and exporting of Administration human environment. endangered and threatened species (50 RIN 0648–XA348 As required by the ESA, issuance of CFR parts 222–226), and the Fur Seal this permit was based on a finding that Act of 1966, as amended (16 U.S.C. 1151 Endangered Species; File No. 16174 such permit: (1) Was applied for in good et seq.). faith; (2) will not operate to the File No. 14330. On January 4, 2011, AGENCY: National Marine Fisheries disadvantage of such endangered notice was published in the Federal Service (NMFS), National Oceanic and species; and (3) is consistent with the Register (76 FR 329) that a request for Atmospheric Administration (NOAA), purposes and policies set forth in an amendment Permit No. 14330 to Commerce. section 2 of the ESA. conduct research on Steller sea lions ACTION: Notice; receipt of application. (Eumetopias jubatus) had been Dated: March 21, 2011. submitted by the Aleut Community of SUMMARY: Notice is hereby given that P. Michael Payne, St. Paul Island. The permit has been Michael Salmon, PhD, Florida Atlantic Chief, Permits, Conservation and Education amended to include authorization for University, 777 Glades Road, P.O. Box Division, Office of Protected Resources, harassment of additional Steller sea 3091, Boca Raton, FL 33431, has applied National Marine Fisheries Service. lions and harbor seals (Phoca vitulina) in due form for a permit to take green [FR Doc. 2011–8074 Filed 4–4–11; 8:45 am] on St. Paul, St. George, Otter, and sea turtles (Chelonia mydas) for BILLING CODE 3510–22–P Walrus Islands, and Sea Lion Rock, all purposes of scientific research.

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DATES: Written, telefaxed, or e-mail specific reasons why a hearing on this DEPARTMENT OF DEFENSE comments must be received on or before application would be appropriate. May 5, 2011. FOR FURTHER INFORMATION CONTACT: Office of the Secretary ADDRESSES: The application and related Colette Cairns or Amy Hapeman, (301) documents are available for review by 713–2289. [Transmittal Nos. 11–08] selecting Records Open for Public SUPPLEMENTARY INFORMATION: Comment from the Features box on the The 36(b)(1) Arms Sales Notification Applications and Permits for Protected subject permit is requested under the Species (APPS) home page, https:// authority of the Endangered Species Act AGENCY: Defense Security Cooperation apps.nmfs.noaa.gov, and then selecting of 1973, as amended (ESA; 16 U.S.C. Agency, DoD File No. 16174 from the list of available 1531 et seq.) and the regulations ACTION: applications. governing the taking, importing, and Notice These documents are also available exporting of endangered and threatened upon written request or by appointment species (50 CFR 222–226). SUMMARY: The Department of Defense is in the following offices: Dr. Salmon proposes to characterize publishing the unclassified text of a Permits, Conservation and Education juvenile green turtle abundance and section 36(b)(1) arms sales notification. Division, Office of Protected Resources, distribution in nearshore developmental This is published to fulfill the NMFS, 1315 East-West Highway, Room habitats off the East coast of southern requirements of section 155 of Public 13705, Silver Spring, MD 20910; phone Florida. Annually, up to 30 green sea Law 104–164 dated 21 July 1996. (301) 713–2289; fax (301) 713–0376; and turtles would be captured by hand, Southeast Region, NMFS, 263 13th transported to shore, measured, FOR FURTHER INFORMATION CONTACT: Ms. Avenue South, Saint Petersburg, FL weighed, photographed, passive B. English, DSCA/DBO/CFM, (703) 601– 33701; phone (727) 824–5312; fax (727) integrated transponder and flipper 3740. 824–5309. tagged, temporarily carapace marked, SUPPLEMENTARY INFORMATION: The Written comments on this application satellite tagged, held overnight, following is a copy of a letter to the should be submitted to the Chief, transported to site of capture, released, Speaker of the House of Representatives, Permits, Conservation and Education and recaptured at the conclusion of the Transmittals 11–08 with attached Division: study for gear removal. No mortalities • transmittal, and policy justification. By e-mail to would be authorized under the permit. [email protected] (include The permit would be valid for 5 years Dated: March 30, 2011. the File No. in the subject line of the from the date of issuance. Morgan F. Park, email), Alternate OSD Federal Register Liaison • By facsimile to (301) 713–0376, or Dated: March 31, 2011. • At the address listed above. P. Michael Payne, Officer, Department of Defense. Those individuals requesting a public Chief, Permits, Conservation and Education BILLING CODE 5001–06–P hearing should submit a written request Division, Office of Protected Resources, to the Chief, Permits, Conservation and National Marine Fisheries Service. Education Division at the address listed [FR Doc. 2011–8069 Filed 4–4–11; 8:45 am] above. The request should set forth the BILLING CODE 3510–22–P

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[FR Doc. 2011–7970 Filed 4–4–11; 8:45 am] BILLING CODE 5001–06–C

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DEPARTMENT OF DEFENSE SUMMARY: The Department of Defense is Speaker of the House of Representatives, publishing the unclassified text of a Transmittals 10–78 with attached Office of the Secretary section 36(b)(1) arms sales notification. transmittal, policy justification, and This is published to fulfill the Sensitivity of Technology. [Transmittal Nos. 10–78] requirements of section 155 of Public Law 104–164 dated 21 July 1996. Dated: March 30, 2011. 36(b)(1) Arms Sales Notification FOR FURTHER INFORMATION CONTACT: Ms. Morgan F. Park, B. English, DSCA/DBO/CFM, (703) 601– Alternate OSD Federal Register Liaison AGENCY: Defense Security Cooperation Officer, Agency, DoD. 3740. SUPPLEMENTARY INFORMATION: The Department of Defense. ACTION: Notice. following is a copy of a letter to the BILLING CODE 5001–06–P

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[FR Doc. 2011–7971 Filed 4–4–11; 8:45 am] BILLING CODE 5001–06–C

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DEPARTMENT OF DEFENSE received without change, including any Dated: March 30, 2011. personal identifiers or contact Morgan F. Park, Office of the Secretary information. Alternate OSD Federal Register Liaison Officer, Department of Defense. [Docket ID DOD–2010–OS–0034] FOR FURTHER INFORMATION CONTACT : Mr. [FR Doc. 2011–8011 Filed 4–4–11; 8:45 am] Jim Teague, United States Defense Transportation Regulation, BILLING CODE 5001–06–P Part IV Transportation Command, TCJ5/4–PI, 508 Scott Drive, Scott Air Force Base, IL AGENCY: United States Transportation 62225–5357; (618) 256–9605. DEPARTMENT OF DEFENSE Command (USTRANSCOM), DOD. SUPPLEMENTARY INFORMATION: Request Office of the Secretary ACTION: Notice. comments be submitted in the identified SUMMARY: Reference Federal Register Excel-format sample posted with the Notification of Open Meeting of the Notice (FRN), Docket ID: DOD–2010– business rules. National Defense University Board of OS–0034, published 1 April 2010, DOD In furtherance of DOD’s goal to Visitors (BOV) develop and implement an efficient has updated portions of the Phase III AGENCY: National Defense University, draft Business Rules for the Defense personal property program to facilitate DoD. Personal Property Program (DP3) in the quality movements for our military ACTION: Defense Transportation Regulation members and civilian employees, the Notice of Open Meeting; Date (DTR) Part IV (DTR 4500.9R). The Phase III Business Rules were developed Change. updates/revisions to the Phase III by the Military Services and SDDC. The SUMMARY: On January 10, 2011 (76 FR business rules include the elimination following revised Phase III iCM 1408), the Department of Defense of the Domestic and International Local Business Rules are available for review published a notice of an open meeting Move (dLM and iLM) and Intra-Country and comment on the USTRANSCOM of the National Defense University Move (iCM) Tender of Service. Web site at: http://www.transcom.mil/ (NDU) Board of Visitors. The dates of Requirements for Domestic Local Moves dtr/part-iv/phaseiii.cfm: the meeting have been changed and are (dLM) can be met using the existing DP3 Attachment V.C.3—TSP updated below. The location remains domestic ‘‘dHHG’’ market using Qualifications; unchanged. intrastate/interstate domestic shipment code ‘‘D’’ and the 400NG solicitation. In Attachment V.D.3—Rate Filing; DATES: The meeting will be held on May addition, Phase III development efforts Attachment V.E.3—Customer 24 & 25, 2011 from 11:30 a.m. to 5 p.m. will incorporate International Local Satisfaction Survey; on the 24th and continuing on the 25th from 8 a.m. to 12:30 p.m. Moves (iLM) into the DP3 international Attachment V.F.3—Best Value Score; ‘‘iHHG’’ market using a new shipment ADDRESSES: The Board of Visitors code of service (COS) ‘‘C’’ and the SDDC Attachment V.G.3—Electronic Bill meeting will be held at Marshall Hall, International Tender (IT). Payment; Building 62, Room 155, the National Implementation timelines will be based Attachment V.J.3—Shipment Defense University, 300 5th Avenue, on completion of Defense Personal Management. SW., Fort McNair, Washington, DC Property System (DPS) Phase III 20319–5066. All associated proposed changes will be programming to account for the above FOR FURTHER INFORMATION CONTACT: The efforts projected for FY14. incorporated into the 400NG and IT and point of contact for this notice of Open posted on the SDDC Web site prior to Meeting is Ms. Joycelyn Stevens @ (202) DATES: Comments must be received on rate filing. In addition, SDDC will or before June 6, 2011. 685–0079, Fax (202) 685–3920 or conduct an ‘‘Open Season’’ to allow [email protected]. ADDRESSES: Do not submit comments companies that currently service Local directly to the point of contact under Move shipments in CONUS and Dated: March 25, 2011. FOR FURTHER INFORMATION CONTACT or OCONUS and those that currently Morgan F. Park, mail your comments to any address service intra-theater moves to qualify Alternate OSD Federal Register Liaison other that what is shown below. Doing and participate in these extended Officer, Department of Defense. so will delay the posting of the markets. [FR Doc. 2011–8012 Filed 4–4–11; 8:45 am] submission. You may submit comments, BILLING CODE 5001–06–P identified by docket number and title, Any subsequent modification(s) to the by any of the following methods: business rules beyond the above stated • Federal eRulemaking Portal: http:// changes will be published in the DEPARTMENT OF DEFENSE www.regulations.gov. Follow the Federal Register and incorporated into instructions for submitting comments. the Defense Transportation Regulation Office of the Secretary • Mail: Federal Docket Management (DTR) Part IV (DTR 4500.9R). These Reserve Forces Policy Board (RFPB) System Office, 1160 Defense Pentagon, program requirements do not impose a Member Solicitation OSD Mailroom 3C843, Washington, DC legal requirement, obligation, sanction or penalty on the public sector, and will 20301–1160. AGENCY: Office of the Secretary, DoD. Instructions: All submissions received not have an economic impact of $100 million or more. ACTION: Notice of Advisory Committee must include the agency name and Member Solicitation. docket number for this Federal Register Additional Information: document. The general policy for SUMMARY: Pursuant to the Federal comments and other submissions from A complete version of the DTR is Advisory Committee Act of 1972 (5 members of the public is to make these available via the Internet on the U.S.C., Appendix, as amended), the submissions available for public USTRANSCOM homepage at http:// Sunshine in the Government Act of viewing on the Internet at http:// www.transcom.mil/j5/pt/ 1976 (5 U.S.C. 552b, as amended), and www.regulations.gov as they are dtr_part_iv.cfm. 41 CFR 102–3.150, the Department of

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Defense announces the following management and operation of Federal ACTION: Notice to Add a New System of Federal advisory committee member advisory committees. Typically, groups Records. solicitation: subject to FACA require open, pre- Name of Committee: Reserve Forces announced meetings; public access to SUMMARY: The Department of the Navy Policy Board (RFPB). discussions, deliberations, records and proposes to add a new system of records Background: Secretary of Defense, documents; opportunity for the public to its inventory of record systems George C. Marshall, abolished the to provide, at a minimum, written subject to the Privacy Act of 1974 (5 Civilian Components Policy Board in comments; fairly balanced membership; U.S.C. § 552a), as amended. June, 1951 and created the Reserve and the evaluation of conflicts of DATES: The changes will be effective on Forces Policy Board. The Congress and interest for certain members. Section May 5, 2011 unless comments are President Harry S. Truman codified this 5(b)(2) of the FACA requires ‘‘* * * the received that would result in a contrary decision in the Armed Forces Reserve membership of the advisory committee determination. Act of July 1952. The Reserve Forces to be fairly balanced in terms of the Policy Board, thus created, has points of view represented and the ADDRESSES: You may submit comments, remained essentially the same in its functions to be performed by the identified by docket number and/ mission and responsibility for nearly advisory committee.’’ Regulatory Information Number (RIN) sixty years. There is in the Office of the Forward Nominations for and title, by any of the following Secretary of Defense a Reserve Forces Membership: A biography describing methods: Policy Board. professional background and * Federal Rulemaking Portal: http:// Changes to Functions: Ike Skelton qualifications should be submitted www.regulations.gov. Follow the National Defense Authorization Act for either by e-mail: [email protected], or by instructions for submitting comments. Fiscal Year 2011. SEC. 514. Revision of (703) 692–1062 (Facsimile—FAX) to the Structure and Functions of the Reserve Reserve Forces Policy Board’s * Mail: Federal Docket Management Forces Policy Board. Designated Federal Officer No Later System Office, 1160 Defense Pentagon, Than The Close Of Business OSD Mailroom 3C843, Washington, DC 10 USCS § 10301. Reserve Forces Policy 20301–1160. Board Wednesday, April 13, 2011. The Designated Federal Officer’s contact Instructions: All submissions received ‘‘(b) Functions.—The Board shall information can be obtained from the must include the agency name and serve as an independent adviser to the GSA’s FACA Database—https:// docket number or Regulatory Secretary of Defense to provide advice www.fido.gov/facadatabase/public.asp. Information Number (RIN) for this and recommendations to the Secretary Federal Register document. The general on strategies, policies, and practices Note: All nominees will be subject to Congressional Lobbyist Disclosure. policy for comments and other designed to improve and enhance the Individuals appointed by the Secretary of submissions from members of the public capabilities, efficiency, and Defense to serve on the Reserve Forces Policy is to make these submissions available effectiveness of the reserve components. Board will be appointed as experts and for public viewing on the Internet at ‘‘(c) Membership.—The Board consists consultants under the authority of 5 U.S.C. http://www.regulations.gov as they are of 20 members, appointed or designated 3109, serve as special government employees received without change, including any as follows: and be required to comply with all personal identifiers or contact Department of Defense ethics requirements, ‘‘(6) Ten persons appointed or information. designated by the Secretary of Defense, to include the filing of confidential financial each of whom shall be a United States disclosure statements. In addition, those FOR FURTHER INFORMATION CONTACT: Ms. appointed will serve without compensation citizen having significant knowledge of except for travel and per diem in conjunction Robin Patterson (202) 685–6545, or and experience in policy matters with official Board business. HEAD, FOIA/Privacy Act Policy Branch, relevant to national security and reserve Acting, the Department of the Navy, component matters and shall be one of FOR FURTHER INFORMATION CONTACT: Lt 2000 Navy Pentagon, Washington, DC the following: Col Julie A. Small, Designated Federal 20350–2000. ‘‘(A) An individual not employed in Officer, (703) 697–4486 (Voice), (703) SUPPLEMENTARY INFORMATION: The any Federal or State department or 693–5371 (Facsimile), [email protected]. Department of the Navy systems of agency. Mailing address is Reserve Forces Policy ‘‘(B) An individual employed by a Board, 7300 Defense Pentagon, records notice subject to the Privacy Act Federal or State department or agency. Washington, DC 20301–7300. Web site: of 1974 (5 U.S.C. 552a), as amended, has ‘‘(C) An officer of a regular component http://ra.defense.gov/rfpb/. been published in the Federal Register of the armed forces on active duty, or an and is available from the FOR FURTHER Dated: March 30, 2011. INFORMATION CONTACT address above. officer of a reserve component of the Morgan F. Park, armed forces in an active status, who— The proposed systems reports, as ‘‘ Alternate OSD Federal Register Liaison required by 5 U.S.C. 552a (r) of the (i) is serving or has served in a senior Officer, Department of Defense. position on the Joint Staff, the Privacy Act of 1974, as amended, were [FR Doc. 2011–8013 Filed 4–4–11; 8:45 am] headquarters staff of a combatant submitted on March 25, 2011, to the command, or the headquarters staff of BILLING CODE 5001–06–P House Committee on Government an armed force; and ‘‘(ii) has experience Report, the Senate Committee on in joint professional military education, DEPARTMENT OF DEFENSE Homeland Security and Governmental joint qualification, and joint operations Affairs, and the Office of Management matters. Department of the Navy and Budget (OMB) pursuant to The Federal Advisory Committee Act paragraph 4c of Appendix I to OMB (FACA), as amended (5 U.S.C. App.) [Docket ID USN–2011–0005] Circular No. A–130, ‘‘Federal Agency and the FACA Implementing Privacy Act of 1974; System of Responsibilities for Maintaining ’’ Regulations (FACA Regulations)(41 CFR Records Records About Individual, dated 101–6 and 102–3) provide the basis for February 8, 1996 (February 20, 1996, 61 and guidance concerning the AGENCY: Department of the Navy, DoD. FR 6427).

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Dated: March 29, 2011. more effective scheduling of unassigned audit, or other operational purposes, Morgan F. Park, personnel and to categorize indirect whichever is later. Audit Schedules are Alternate OSD Federal Register Liaison time expended for end-of-year reporting; maintained for 3 years then destroyed, Officer, Department of Defense. to plan workloads, to assist in providing or destroyed when no longer needed. time and attendance to the centralized Annual Audit Plan records are N07510–1 payroll system; and to request, schedule maintained for 11 years then destroyed. SYSTEM NAME: and track auditor training requirements. Time and attendance records are maintained for 6 years then destroyed. Naval Audit Service Information ROUTINE USES: Management System (NASIMS). Records are destroyed by degaussing or In addition to those disclosures erasing from the system. SYSTEM LOCATION: generally permitted under 5 U.S.C. SYSTEM MANAGER(S) AND ADDRESS(ES): Department of the Navy Assistant for 552a(b) of the Privacy Act of 1974, these Director, Information Management Administration, Office of Information records contained therein may and Analysis, Naval Audit Service, 1006 Technology, 1000 Navy Pentagon, specifically be disclosed outside the Beatty Place SE., Washington Navy Washington, DC 20350–1000. DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows: Yard, DC 20374–5005. CATEGORIES OF INDIVIDUALS COVERED BY THE The DoD ‘Blanket Routine Uses’ that NOTIFICATION PROCEDURE: SYSTEM: appear at the beginning of the Navy’s Individuals seeking to determine Department of the Navy military compilation of system of record notices whether this system of records contains members, civilians employed by the also apply to this system. information about themselves should Navy and contractors. POLICIES AND PRACTICES FOR STORING, address written inquiries to Naval Audit CATEGORIES OF RECORDS IN THE SYSTEM: RETRIEVING, ACCESSING, RETAINING, AND Service, Attn: FOIA, 1006 Beatty Place First, middle and last name, DISPOSING OF RECORDS: SE., Washington Navy Yard, DC 20374– nickname, last four digits of Social STORAGE: 5005. Security Number (SSN), Electronic Data The request should be signed and Records are stored on electronic include full name, dates of service, last Interchange Personal Identifier (EDIPI) storage media. (also known as the Department of four digits of Social Security Number Defense personal identifier), date of RETRIEVABILITY: (SSN), series, grade, duty station and a birth, race, gender, photograph, entered Records about individuals are complete mailing address. The system on duty date, position title, directorate, retrieved using a combination of name, manager may require an original division, team, pay plan, pay grade, geographic and demographic signature or a notarized signature as a series, security clearance level, characteristics (such as name, last four means of proving the identity of the educational information, location, room, digits of Social Security Number (SSN), individual requesting access to the home address, mailing address, work series, grade, dates of service and duty records. phone number, work cell phone station). RECORD ACCESS PROCEDURE: number, work e-mail address, personal SAFEGUARDS: Individuals seeking access to records e-mail address, home phone number, about themselves contained in this Access to this system of records and personal cell phone number, and system of records should address personal information is restricted by the emergency contact name, home phone written inquiries to Naval Audit use of Common Access Card (CAC). number, cell phone number, and work Service, Attn: FOIA, 1006 Beatty Place Access to personal information is phone number. SE., Washington Navy Yard, DC 20374– restricted to those who require the AUTHORITY FOR MAINTENANCE OF THE SYSTEM: 5005. records in the performance of their The request should be signed and 10 U.S.C. 136, Under Secretary of official duties. This system of records is include full name, dates of service, last Defense for Personnel and Readiness; 10 profile or role based, which limits the four digits of Social Security Number U.S.C. 5013, Department of the Navy; 10 user to specific data and/or application (SSN), series, grade, duty station and a U.S.C. 5014, Office of the Secretary of functions. Users in a specific profile complete mailing address. The system the Navy; 10 U.S.C. 5041, Headquarters, cannot view data outside of that manager may require an original Marine Corps; 5 U.S.C. 301, profile’s restriction. All individuals to signature or a notarized signature as a Departmental Regulations; DoD be granted access to this system of means of proving the identity of the Directive 8320.1, DoD Data records are to have received Information individual requesting access to the Administration; DoD Manual 7600.7–M, Assurance and Privacy Act training. records. DoD Audit Manual; SECNAVINST Computerized records are maintained in 7510.7F, Department of the Navy a controlled area accessible only to CONTESTING RECORD PROCEDURE: Internal Audit and E.O. 9397 (SSN), as authorized personnel. Entry to these The Navy’s rules for accessing records amended. areas is restricted to those personnel and for contesting contents and with a valid requirement and appealing initial agency determinations PURPOSE: authorization to enter. Physical entry is are published in SECNAVINST 5211.5 NASIMS is used by the Naval Audit restricted by the use of locks, guards, series and 32 CFR part 701 or may be Service to effectively and efficiently and administrative procedures. obtained from the system manager. manage and track the personnel and administrative functions and business RETENTION AND DISPOSAL: RECORD SOURCE CATEGORIES: processes of the agency. The Internal Audit Policy records are Information is obtained primarily information is used to maximize staff maintained for 3 years then destroyed, from the individual and/or Naval Audit resources and to provide project cost or destroyed 1 year after guidance is Service Human Resources staff and from summary data; to track staff hours superseded. Management Information official Department of Navy and allocated towards project preparation Systems Reports are destroyed when no Department of Defense official programs and active projects which will allow for longer needed for administrative, legal, of record: Defense Civilian Personnel

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Data System (DCPDS); Defense of Education is especially interested in requirements of the regulations must Enrollment Eligibility Reporting System public comment addressing the repay all or part of the cost of assistance, (DEERS); and Joint Personnel following issues: (1) Is this collection in accordance with regulations issued Adjudication System (JPAS). necessary to the proper functions of the by the Secretary. These regulations Department; (2) will this information be implement requirements governing, EXEMPTIONS CLAIMED FOR THE SYSTEM: processed and used in a timely manner; among other things, the service None. (3) is the estimate of burden accurate; obligation for scholars, reporting [FR Doc. 2011–8010 Filed 4–4–11; 8:45 am] (4) how might the Department enhance requirements by grantees, and BILLING CODE 5001–06–P the quality, utility, and clarity of the repayment of scholarships by scholars. information to be collected; and (5) how In order for the federal government to might the Department minimize the ensure that the goals of the program are DEPARTMENT OF EDUCATION burden of this collection on the achieved, certain data collection, respondents, including through the use recordkeeping, and documentation are Notice of Proposed Information of information technology. necessary. In addition this data Collection Requests Dated: March 31, 2011. collection is governed by the Darrin A. King, Government Performance Results Act AGENCY: Department of Education. (GPRA). GPRA requires Federal agencies ACTION: Comment request. Director, Information Collection Clearance Division, Information Management and to establish performance measures for Privacy Services, Office of Management. all programs, and the Office of Special SUMMARY: The Department of Education Education Programs’ has established (the Department), in accordance with Office of Special Education and performance measures for the Personnel the Paperwork Reduction Act of 1995 Rehabilitative Services Development Program. Data collection (PRA) (44 U.S.C. 3506(c)(2)(A)), Type of Review: Extension. from scholars who have received provides the general public and Federal scholarships under the Personnel agencies with an opportunity to Title of Collection: Special Education- Individual Reporting on Regulatory Development Program is necessary to comment on proposed and continuing evaluate these measures. collections of information. This helps Compliance Related to the Personnel Development Program’s Service Copies of the proposed information the Department assess the impact of its collection request may be accessed from information collection requirements and Obligation and the Government Performance and Results Act (GPRA). http://edicsweb.ed.gov, by selecting the minimize the reporting burden on the ‘‘Browse Pending Collections’’ link and public and helps the public understand OMB Control Number: 1820–0686. Agency Form Number(s): N/A. by clicking on link number 4557. When the Department’s information collection you access the information collection, requirements and provide the requested Frequency of Responses: On Occasion; Monthly; Quarterly; Semi- click on ‘‘Download Attachments’’ to data in the desired format. The Director, view. Written requests for information Information Collection Clearance Annually; Biennially. Affected Public: Businesses or other should be addressed to U.S. Department Division, Information Management and of Education, 400 Maryland Avenue, Privacy Services, Office of Management, for-profit; Federal Government; Individuals or households Not-for-profit SW., LBJ, Washington, DC 20202–4537. invites comments on the proposed Requests may also be electronically information collection requests as institutions; State, Local, or Tribal Government, State Educational mailed to [email protected] or faxed required by the Paperwork Reduction to 202–401–0920. Please specify the Act of 1995. Agencies or Local Educational Agencies. Total Estimated Number of Annual complete title of the information DATES: Interested persons are invited to Responses: 82,642. collection and OMB Control Number submit comments on or before June 6, Total Estimated Number of Annual when making your request. 2011. Burden Hours: 30,029. Individuals who use a ADDRESSES: Comments regarding burden Abstract: The data collection under telecommunications device for the deaf and/or the collection activity this revision and renewal request is (TDD) may call the Federal Information requirements should be electronically governed by the ‘‘Additional Relay Service (FIRS) at 1–800–877– mailed to [email protected] or Requirements’’ section of the Personnel 8339. mailed to U.S. Department of Education, Preparation to Improve Services and [FR Doc. 2011–8046 Filed 4–4–11; 8:45 am] 400 Maryland Avenue, SW., LBJ, Results for Children with Disabilities— BILLING CODE 4000–01–P Washington, D.C. 20202–4537. Please Combined Priority for Personnel note that written comments received in Preparation and Preparation of response to this notice will be Leadership Personnel notice, published DEPARTMENT OF EDUCATION considered public records. in the Federal Register on March 25, Notice of Submission for OMB Review SUPPLEMENTARY INFORMATION: Section 2005 and by Sections 304.23–304.30 of 3506 of the Paperwork Reduction Act of the June 5, 2006, regulations that AGENCY: Department of Education. 1995 (44 U.S.C. Chapter 35) requires implement Section 662(h) of the ACTION: Comment request. that Federal agencies provide interested Individual with Disabilities Education parties an early opportunity to comment Act Amendments of 2004, which SUMMARY: The Director, Information on information collection requests. The require that individuals who receive a Collection Clearance Division, Director, Information Collection scholarship through the Personnel Information Management and Privacy Clearance Division, Information Development Program funded under the Services, Office of Management, invites Management and Privacy Services, Act subsequently provide special comments on the submission for OMB Office of Management, publishes this education and related services to review as required by the Paperwork notice containing proposed information children with disabilities for a period of Reduction Act of 1995 (Pub. L. 104–13). collection requests at the beginning of two years for every year for which DATES: Interested persons are invited to the Departmental review of the assistance was received. Scholarship submit comments on or before May 5, information collection. The Department recipients who do not satisfy the 2011.

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ADDRESSES: Written comments should graduate students of superior ability the Department’s Institute of Education be addressed to the Office of selected on the basis of demonstrated Sciences (IES) commissioned this Information and Regulatory Affairs, achievement, exceptional promise and evaluation. It will be conducted under Attention: Education Desk Officer, financial need. This information a contract that IES awarded in February Office of Management and Budget, 725 collection provides the U.S. Department 2010. 17th Street, NW., Room 10222, New of Education with information needed The central research questions that Executive Office Building, Washington, to determine if fellows have made the study will address are: What are the DC 20503, be faxed to (202) 395–5806 or substantial progress toward meeting the characteristics of Teacher Residency e-mailed to program’s objectives and allows Programs (TRPs)? What are the [email protected] with a program staff to monitor and evaluate characteristics of participants in TRPs? cc: to [email protected]. Please note time-to-degree completion and the What is the average performance of that written comments received in graduation rate of Javits fellows. novice TRP teachers as measured by response to this notice will be Congress has mandated, through the value-added estimates benchmarked considered public records. Government Performance Results Act of against novice and all teachers in the SUPPLEMENTARY INFORMATION: Section 1993, that the U.S. Department of district? What are the retention rates of 3506 of the Paperwork Reduction Act of Education provide documentation novice TRP teachers and their novice 1995 (44 U.S.C. Chapter 35) requires regarding the progress being made by colleagues who did not go through that the Office of Management and the program. TRPs? Budget (OMB) provide interested Copies of the information collection The system will contain information Federal agencies and the public an early submission for OMB review may be on approximately 255 residents and 270 opportunity to comment on information accessed from the RegInfo.gov Web site mentors from 15 teacher residency collection requests. The OMB is at http://www.reginfo.gov/public/do/ programs and approximately 800 particularly interested in comments PRAMain or from the Department’s Web teachers and 20,000 students from 8 which: (1) Evaluate whether the site at http://edicsweb.ed.gov, by districts. proposed collection of information is selecting the ‘‘Browse Pending DATES: The Department seeks comment necessary for the proper performance of Collections’’ link and by clicking on link on the new system of records described the functions of the agency, including number 4495. When you access the in this notice, in accordance with the whether the information will have information collection, click on requirements of the Privacy Act. We practical utility; (2) Evaluate the ‘‘Download Attachments’’ to view. must receive your comments on the accuracy of the agency’s estimate of the Written requests for information should proposed routine uses for the system of burden of the proposed collection of be addressed to U.S. Department of records referenced in this notice on or information, including the validity of Education, 400 Maryland Avenue, SW., before May 5, 2011. the methodology and assumptions used; LBJ, Washington, DC 20202–4537. The Department filed a report (3) Enhance the quality, utility, and Requests may also be electronically describing the new system of records clarity of the information to be mailed to the Internet address covered by this notice with the Chair of collected; and (4) Minimize the burden [email protected] or faxed to 202– the Senate Committee on Homeland of the collection of information on those 401–0920. Please specify the complete Security and Governmental Affairs, the who are to respond, including through title of the information collection and Chair of the House Committee on the use of appropriate automated, OMB Control Number when making Oversight and Government Reform, and electronic, mechanical, or other your request. the Administrator of the Office of technological collection techniques or Individuals who use a Information and Regulatory Affairs, other forms of information technology. telecommunications device for the deaf Office of Management and Budget (TDD) may call the Federal Information Dated: March 31, 2011. (OMB) on March 31, 2011. This system Relay Service (FIRS) at 1–800–877– of records will become effective at the Darrin A. King, 8339. later date of—(1) the expiration of the Director, Information Collection Clearance [FR Doc. 2011–8094 Filed 4–4–11; 8:45 am] 40-day period for OMB review on May Division, Information Management and Privacy Services, Office of Management. BILLING CODE 4000–01–P 10, 2011, unless OMB waves 10 days of the 40-day review period for compelling Office of Postsecondary Education reasons shown by the Department, or (2) Type of Review: Extension. DEPARTMENT OF EDUCATION May 5, 2011, unless the system of Title of Collection: Annual Student records needs to be changed as a result Privacy Act of 1974; System of of public comment or OMB review. Activities Report. Records—Evaluation of Teacher OMB Control Number: 1840–0781. ADDRESSES: Address all comments about Residency Programs Agency Form Number(s): N/A. the proposed routine uses to Dr. Audrey Frequency of Responses: Annually. AGENCY: Institute of Education Sciences, Pendleton, Acting Associate Affected Public: Individuals or Department of Education. Commissioner, Evaluation Division, households. ACTION: Notice of a new system of National Center for Education Total Estimated Number of Annual records. Evaluation and Regional Assistance, Responses: 190. Institute of Education Sciences, U.S. Total Estimated Annual Burden SUMMARY: In accordance with the Department of Education, 555 New Hours: 570. Privacy Act of 1974, as amended Jersey Avenue, NW., room 502D, Abstract: Section 703 of the Higher (Privacy Act), the Department of Washington, DC 20208–0001. Education Act of 1965, as amended, Education (Department) publishes this Telephone: (202) 208–7078. If you authorizes the Secretary to award notice of a new system of records prefer to send comments through the fellowships under the Jacob K. Javits entitled ‘‘Evaluation of Teacher Internet, use the following address: Fellowship Program for graduate study Residency Programs’’ (18–13–24). The [email protected]. in the arts, humanities, and social National Center for Education You must include the term sciences. The fellowships support Evaluation and Regional Assistance at ‘‘Evaluation of Teacher Residency

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Programs’’ in the subject line of the required to send copies of the report to CATEGORIES OF RECORDS IN THE SYSTEM: electronic message. the Chair of the Senate Committee on The system of records will include During and after the comment period, Homeland Security and Governmental personally identifying information you may inspect all comments about Affairs and the Chair of the House about the students in the participating this notice at the U.S. Department of Committee on Oversight and teacher classrooms, including Education in room 502D, 555 New Government Reform. These reports are demographic information such as race, Jersey Avenue, NW., Washington, DC, included to permit an evaluation of the ethnicity, gender, age, and educational between the hours of 8:00 a.m. and 4:30 probable effect of the proposal on the background; information on attendance p.m., Eastern time, Monday through privacy rights of individuals. and disciplinary incidences; and scores Friday of each week except Federal Electronic Access to This Document on reading and mathematics holidays. achievement tests. The system of Assistance to Individuals With You can view this document, as well records will also include personally Disabilities in Reviewing the as all other documents of this identifying information about the Rulemaking Record Department published in the Federal mentors, residents and teachers Register, in text or Adobe Portable participating in the evaluation, On request, we will supply an Document Format (PDF) on the Internet including demographic information, appropriate aid, such as a reader or at the following site: http://www.ed.gov/ such as race, ethnicity, gender, and print magnifier, to an individual with a news/fedregister. To use PDF you must educational background, and teaching disability who needs assistance to have Adobe Acrobat Reader, which is experience. The system of records will review the comments or other available free at this site. also include employment information documents in the public rulemaking Note: The official version of this document on the teachers participating in the record for this notice. If you want to is the document published in the Federal evaluation. schedule an appointment for this type of Register. Free Internet access to the official AUTHORITY FOR MAINTENANCE OF THE SYSTEM: aid, please contact the person listed edition of the Federal Register and the Code under FOR FURTHER INFORMATION of Federal Regulations is available via the The evaluation is authorized under CONTACT. Federal Digital System at: http:// sections 171(b) and 173 of the Education www.gpo.gov/fdsys. FOR FURTHER INFORMATION CONTACT: Dr. Sciences Reform Act of 2002 (ESRA) (20 Audrey Pendleton. Telephone: (202) U.S.C. 9561(b) and 9563), and section Dated: March 31, 2010. 202(h)(1) of the Higher Education Act, 208–7078. If you use a John Q. Easton, telecommunications device for the deaf as amended by the Higher Education Director, Institute of Education Sciences. (TDD), you may call the Federal Relay Opportunity Act of 2008 (HEA) (20 Service (FRS), toll free, at 1–800–877– For the reasons discussed in the U.S.C. 1022a(h)). The grant programs 8339. preamble, the Director of the Institute of that are the subject of this evaluation are Individuals with disabilities may Education Sciences, U.S. Department of authorized under Part A of Title II of the obtain this document in an alternative Education, publishes a notice of a new HEA (sec. 201–204) (20 U.S.C. 1022– format (e.g., braille, large print, system of records to read as follows: 1022c). audiotape, or computer diskette) on 18–13–24 PURPOSE(S): request to the contact person listed in The information contained in the this section. SYSTEM NAME: records maintained in this system is SUPPLEMENTARY INFORMATION: Evaluation of Teacher Residency used for the following purpose: Introduction Programs. To describe Teacher Residency Programs (TRPs) and summarize the The Privacy Act (5 U.S.C. 552a) SECURITY CLASSIFICATION: teacher retention and student requires the Department to publish in None. achievement outcomes of TRP the Federal Register this notice of a new participants. The study will address the system of records maintained by the SYSTEM LOCATION: following research questions: Department. The Department’s (1) What are the characteristics of regulations implementing the Privacy (1) Evaluation Division, National Center for Education Evaluation and TRPs? Act are contained in part 5b of title 34 (2) What are the characteristics of of the Code of Federal Regulations Regional Assistance, Institute of Education Sciences (IES), U.S. participants in TRPs? (CFR). (3) What is the average performance of The Privacy Act applies to Department of Education, 555 New Jersey Avenue, NW., room 502D, novice TRP teachers as measured by information about individuals that value-added estimates benchmarked contains individually identifying Washington, DC 20208–0001. (2) Mathematica Policy Research, Inc., against novice and all teachers in the information and that is retrieved by a district? unique identifier associated with each 600 Alexander Park, Princeton, NJ 08540 (contractor). (4) What are the retention rates of individual, such as a name or social novice TRP teachers and their novice security number. The information about (3) Decision Information Resources, colleagues who did not go through each individual is called a ‘‘record,’’ and Inc., 2600 Southwest Freeway, Suite TRPs? the system, whether manual or 900, Houston, TX 77098 (subcontractor). computer-based, is called a ‘‘system of ROUTINE USES OF RECORDS MAINTAINED IN THE records.’’ CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM, INCLUDING CATEGORIES OF USERS AND The Privacy Act requires each agency SYSTEM: THE PURPOSES OF SUCH USES: to publish a notice of a system of This system contains records on The Department of Education records in the Federal Register and to approximately 255 residents and 270 (Department) may disclose information prepare and send a report to OMB mentors from approximately 15 teacher contained in a record in this system of whenever the agency publishes a new residency programs and 800 teachers records under the routine uses listed in system of records. Each agency is also and 20,000 students from 8 districts. this system of records without the

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consent of the individual if the confidentiality of data. The contractor records, contact the system manager. disclosure is compatible with the and subcontractor are required to ensure Your request must meet the purposes for which the record was that information identifying individuals requirements of the regulations at 34 collected. These disclosures may be is in files physically separated from CFR 5b.7, including proof of identity. made on a case-by-case basis or, if the other research data. The contractor and Department has complied with the subcontractor will maintain security of RECORD SOURCE CATEGORIES: computer matching requirements of the the complete set of all master data files This system contains records on Privacy Act, under a computer matching and documentation. Access to residents, mentors, teachers, and agreement. Any disclosure of individually identifying data will be students participating in an evaluation individually identifying information strictly controlled. All data will be kept of teacher residency programs. Data will from a record in this system must also in locked file cabinets during be obtained through student records comply with the requirements of section nonworking hours, and work on maintained by the school districts, 183 of the ESRA (20 U.S.C. 9573) hardcopy data will take place in a single assessments administered to students, providing for confidentiality standards room, except for data entry. Physical and surveys of residents, mentors, and that apply to all collections, reporting, security of electronic data will also be teachers. and publication of data by IES. maintained. Security features that EXEMPTIONS CLAIMED FOR THE SYSTEM: Contract Disclosure. If the Department protect project data include: Password- contracts with an entity for the purposes protected accounts that authorize users None. of performing any function that requires to use the contractor’s and [FR Doc. 2011–8067 Filed 4–4–11; 8:45 am] disclosure of records in this system to subcontractor’s systems but to access BILLING CODE 4000–01–P employees of the contractor, the only specific network directories and Department may disclose the records to network software; user rights and those employees. Before entering into directory and file attributes that limit DEPARTMENT OF ENERGY such a contract, the Department shall those who can use particular directories require the contractor to maintain and files and determine how they can Federal Energy Regulatory Privacy Act safeguards as required use them; and additional security Commission under 5 U.S.C. 552a(m) with respect to features that the network administrators [Docket No. IC11–603–000] the records in the system. will establish for projects as needed. The contractor’s and subcontractor’s Commission Information Collection DISCLOSURE TO CONSUMER REPORTING employees who ‘‘maintain’’ (collect, AGENCIES: Activities (FERC–603); Comment maintain, use, or disseminate) data in Request; Extension Not applicable to this system notice. this system shall comply with the AGENCY: POLICIES AND PRACTICES FOR STORING, requirements of the confidentiality Federal Energy Regulatory RETRIEVING, ACCESSING, RETAINING, AND standards in section 183 of the ESRA Commission. DISPOSING OF RECORDS IN THE SYSTEM: (20 U.S.C. 9573). ACTION: Notice of proposed information collection and request for comments. STORAGE: RETENTION AND DISPOSAL: The Department maintains records on Records are maintained and disposed SUMMARY: In compliance with the CD–ROM, and the contractor of in accordance with the Department’s requirements of section 3506(c)(2)(A) of (Mathematica Policy Research, Inc.) and Records Disposition Schedules (ED/ the Paperwork Reduction Act of 1995, sub-contractor (Decision Information RDS, Part 3, Item 2b and Part 3, Item 44 U.S.C. 3506(c)(2)(A) (2006) (Pub. L. Resources, Inc.) maintain data for this 5a). 104–13), the Federal Energy Regulatory system on computers and in hard copy. SYSTEM MANAGER AND ADDRESS: Commission (Commission or FERC) is soliciting public comment on the RETRIEVABILITY: Acting Associate Commissioner, proposed information collection Evaluation Division, National Center for Records in this system are indexed described below. and retrieved by a number assigned to Education Evaluation and Regional DATES: each individual that is cross-referenced Assistance, Institute of Education Comments in consideration of by the individual’s name on a separate Sciences, U.S. Department of Education, the collection of information are due list. 555 New Jersey Avenue, NW., room June 3, 2011. 502D, Washington, DC 20208. ADDRESSES: Comments may be filed SAFEGUARDS: either electronically (eFiled) or in paper All physical access to the NOTIFICATION PROCEDURE: format, and should refer to Docket No. Department’s site and to the sites of the If you wish to determine whether a IC11–603–000. Documents must be Department’s contractor and record exists regarding you in the prepared in an acceptable filing format subcontractor, where this system of system of records, contact the systems and in compliance with Commission records is maintained, is controlled and manager. Your request must meet the submission guidelines at http:// monitored by security personnel. The requirements of regulations at 34 CFR www.ferc.gov/help/submission- computer system employed by the 5b.5, including proof of identity. guide.asp. eFiling instructions are Department offers a high degree of RECORD ACCESS PROCEDURE: available at: http://www.ferc.gov/docs- resistance to tampering and If you wish to gain access to your filing/efiling.asp. First time users must circumvention. This security system record in the system of records, contact follow eRegister instructions at: http:// limits data access to Department and the system manager. Your request must www.ferc.gov/docs-filing/ contract staff on a need-to-know basis, meet the requirements of regulations at eregistration.asp, to establish a user and controls individual users’ ability to 34 CFR 5b.5, including proof of identity. name and password before eFiling. The access and alter records within the Commission will send an automatic system. The contractor and CONTESTING RECORD PROCEDURE: acknowledgement to the sender’s e-mail subcontractor will establish a similar set If you wish to contest the content of address upon receipt of eFiled of procedures at their sites to ensure a record regarding you in the system of comments. Commenters making an

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eFiling should not make a paper filing. requirements of FERC–603 ‘‘Critical (ii) could be useful to a person planning Commenters that are not able to file Energy Infrastructure Information’’ an attack on critical infrastructure; (iii) electronically must send an original and (OMB No. 1902–0197) is used by the is exempt from mandatory disclosure two (2) paper copies of their comments Commission to implement procedures under the Freedom of Information Act, to: Federal Energy Regulatory for gaining access to critical energy and (iv) does not simply give the Commission, Secretary of the infrastructure information (CEII) that location of the critical infrastructure. Commission, 888 First Street, NE., would not otherwise be available under Critical infrastructure means existing Washington, DC 20426. the Freedom of Information Act (5 USC and proposed systems and assets, Users interested in receiving 552). On February, 21, 2003, the whether physical or virtual, the automatic notification of activity in this Commission issued Order No. 630 (66 incapacity or destruction of which docket may do so through eSubscription FR 52917) to address the appropriate would negatively affect security, at http://www.ferc.gov/docs-filing/ treatment of CEII in the aftermath of the economic security, public health or esubscription.asp. All comments and September 11, 2001 terrorist attacks and safety, or any combination of those FERC issuances may be viewed, printed to restrict unrestrained general access matters. A person seeking access to CEII or downloaded remotely through due to the ongoing terrorism threat. may file a request for that information FERC’s eLibrary at http://www.ferc.gov/ These steps enable the Commission to by providing information about their docs-filing/elibrary.asp, by searching on keep sensitive infrastructure identity and reason as to the need for Docket No. IC11–603. For user information out of the public domain, the information. Through this process, assistance, contact FERC Online decreasing the likelihood that such the Commission is able to review the Support by e-mail at information could be used to plan or requester’s need for the information [email protected], or by phone execute terrorist attacks. The process against the sensitivity of the at: (866) 208–3676 (toll-free), or (202) adopted in Order No. 630 is a more information. The compliance with these 502–8659 for TTY. efficient alternative for handling requirements is mandatory. FOR FURTHER INFORMATION: Ellen Brown requests for previously public Action: The Commission is requesting may be reached by e-mail at documents than FOIA The Commission a three-year extension of the current [email protected], telephone at has defined CEII to include information expiration date, with changes to the (202) 502–8663, and fax at (202) 273– about ‘‘existing or proposed critical existing collection of data. 0873. infrastructure that (i) relates to the Burden Statement: Public reporting SUPPLEMENTARY INFORMATION: The production, generation, transportation, burden for this collection is estimated information collected under the transmission, or distribution of energy; as:

Number of Number of Average Total annual Data collection respondents responses per burden hours burden hours annually 1 respondent per response

(1) (2) (3) (1)×(2)×(3)

FERC–603 ...... 200 1 .30 60 1 The number of respondents corresponds to the number of requests received annually while recognizing that some CEII requests are filed by multiple parties.

The estimated total cost to include all costs directly attributable to technological collection techniques or respondents is $4,080. The cost per providing this information, such as other forms of information technology respondent = $20.40. (60 hours @ $68 administrative costs and the cost for e.g. permitting electronic submission of hourly rate (rounded off)). information technology. Indirect or responses. The reporting burden includes the overhead costs are costs incurred by an Dated: March 17, 2011. total time, effort, or financial resources organization in support of its mission. Kimberly D. Bose, expended to generate, maintain, retain, These costs apply to activities which Secretary. disclose, or provide the information benefit the whole organization rather including: (1) Reviewing instructions; than any one particular function or [FR Doc. 2011–7991 Filed 4–4–11; 8:45 am] (2) developing, acquiring, installing, and activity. BILLING CODE 6717–01–P utilizing technology and systems for the Comments are invited on: (1) Whether purposes of collecting, validating, the proposed collection of information DEPARTMENT OF ENERGY verifying, processing, maintaining, is necessary for the proper performance disclosing and providing information; of the functions of the Commission, Federal Energy Regulatory (3) adjusting the existing ways to including whether the information will Commission comply with any previously applicable have practical utility; (2) the accuracy of instructions and requirements; (4) the agency’s estimate of the burden of [Project No. 2232–588] training personnel to respond to a the proposed collection of information, collection of information; (5) searching including the validity of the Duke Energy Carolinas, LLC; Notice of data sources; (6) completing and methodology and assumptions used; (3) Application for Amendment of License reviewing the collection of information; ways to enhance the quality, utility and and Soliciting Comments, Motions To and (7) transmitting or otherwise clarity of the information to be Intervene, and Protests disclosing the information. collected; and (4) ways to minimize the The estimate of cost for respondents burden of the collection of information Take notice that the following is based upon salaries for professional on those who are to respond, including hydroelectric application has been filed and clerical support, as well as direct the use of appropriate automated, with the Commission and is available and indirect overhead costs. Direct costs electronic, mechanical, or other for public inspection:

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a. Application Type: Non-project use link. Enter the docket number excluding other filings in reference to this of project lands and waters the last three digits in the docket application must be accompanied by b. Project No.: 2232–588 number field to access the document. proof of service on all persons listed in c. Date Filed: November 3, 2010 You may also register online at http:// the service list prepared by the d. Applicant: Duke Energy Carolinas, www.ferc.gov/docs-filing/ Commission in this proceeding, in LLC esubscription.asp to be notified via e- accordance with 18 CFR 4.34(b) and e. Name of Project: Catawba-Wateree mail of new filings and issuances 385.2010. Hydroelectric Project related to this or other pending projects. Dated: March 17, 2011. f. Location: The proposed non-project For assistance, call 1–866–208–3676 or Kimberly D. Bose, use would be located on Lake Wateree e-mail [email protected], in Fairfield County, South Carolina. for TTY, call (202) 502–8659. A copy is Secretary. g. Filed Pursuant to: Federal Power also available for inspection and [FR Doc. 2011–7982 Filed 4–4–11; 8:45 am] Act, 16 USC 791a–825r reproduction at the address in item (h) BILLING CODE 6717–01–P h. Applicant Contact: Kevin K. above. Reagan, Manager, Lake Services, P.O. m. Individuals desiring to be included Box 1006, Charlotte, NC 28201–1006; on the Commission’s mailing list should DEPARTMENT OF ENERGY telephone (704) 382–9386. so indicate by writing to the Secretary Federal Energy Regulatory i. FERC Contact: Jade Alvey: (202) of the Commission. 502–6864; e-mail: [email protected]. n. Comments, Protests, or Motions To Commission j. Deadline for filing comments, Intervene: Anyone may submit [Project No. 2210–207] motions to intervene, and protests: April comments, a protest, or a motion to 17, 2011. intervene in accordance with the Appalachian Power Company; Notice All documents may be filed requirements of Rules of Practice and of Application for Amendment of electronically via the Internet. See, 18 Procedure, 18 CFR 385.210, .211, .214. License and Soliciting Comments, CFR 385.2001(a)(1)(iii) and the In determining the appropriate action to Motions To Intervene, and Protests instructions on the Commission’s Web take, the Commission will consider all site at http://www.ferc.gov/docs-filing/ protests or other comments filed, but Take notice that the following efiling.asp. If unable to be filed only those who file a motion to hydroelectric application has been filed electronically, documents may be paper- intervene in accordance with the with the Commission and is available filed. To paper-file, an original and Commission’s Rules may become a for public inspection: seven copies should be mailed to: party to the proceeding. Any comments, a. Application Type: Updated Secretary, Federal Energy Regulatory protests, or motions to intervene must shoreline management plan Commission, 888 First Street, NE., be received on or before the specified b. Project No: 2210–207 Washington, DC 20426. Commenters comment date for the particular c. Date Filed: January 3, 2011, can submit brief comments up to 6,000 application. supplemented on February 18, 2011 characters, without prior registration, o. Filing and Service of Responsive d. Applicant: Appalachian Power using the eComment system at http:// Documents: Any filing must (1) Bear in Company www.ferc.gov/docs-filing/ all capital letters the title e. Name of Project: Smith Mountain ecomment.asp. You must include your ‘‘COMMENTS’’, ‘‘PROTEST’’, or Pumped Storage Project name and contact information at the end ‘‘MOTION TO INTERVENE’’ as f. Location: Headwaters of the of your comments. Please include the applicable; (2) set forth in the heading Roanoke River, in Bedford, Campbell, project number (P–2232–588) on any the name of the applicant and the Franklin, and Pittsylvania Counties, comments, motions, or project number of the application to Virginia recommendations filed. which the filing responds; (3) furnish g. Filed Pursuant to: Federal Power k. Description of Request: The the name, address, and telephone Act, 16 USC 791a—825r licensee is requesting authorization to number of the person protesting or h. Applicant Contact: Elizabeth permit James Rion to lease 3.61 acres of intervening; and (4) otherwise comply Parcell, Appalachian Power Company, project lands for a commercial marina with the requirements of 18 CFR 996 Old Franklin Turnpike, Rocky (Sutton’s Landing) consisting of eight 385.2001 through 385.2005. All Mount, VA, 24151 cluster docks with a total of ninety-six comments, motions to intervene, or i. FERC Contact: Mark Carter, boat slips. The proposed marina would protests must set forth their evidentiary telephone (678) 245–3083, e-mail impact a total of approximately 700 basis and otherwise comply with the [email protected]. linear feet of shoreline within the requirements of 18 CFR 4.34(b). All j. Deadline for filing comments, project boundary. The slips would comments, motions to intervene, or motions to intervene, and protests: April include downward-illuminating protests should relate to project works 15, 2011 pedestal lights. The licensee is also which are the subject of the amendment All documents may be filed requesting a change in the classification application. Agencies may obtain copies electronically via the Internet. See, 18 of the shoreline area from ‘‘Existing of the application directly from the CFR 385.2001(a)(1)(iii) and the Residential Marina’’ to ‘‘True Public applicant. A copy of any protest or instructions on the Commission’s Web Marina.’’ motion to intervene must be served site at http://www.ferc.gov/docs-filing/ l. Locations of the Application: A upon each representative of the efiling.asp. If unable to be filed copy of the application is available for applicant specified in the particular electronically, documents may be paper- inspection and reproduction at the application. If an intervener files filed. To paper-file, an original and Commission’s Public Reference Room, comments or documents with the seven copies should be mailed to: located at 888 First Street, NE., Room Commission relating to the merits of an Secretary, Federal Energy Regulatory 2A, Washington, DC 20426, or by calling issue that may affect the responsibilities Commission, 888 First Street, NE., (202) 502–8371. This filing may also be of a particular resource agency, they Washington, DC 20426. Commenters viewed on the Commission’s Web site at must also serve a copy of the document can submit brief comments up to 6,000 http://www.ferc.gov using the ‘‘eLibrary’’ on that resource agency. A copy of all characters, without prior registration,

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using the eComment system at http:// ‘‘COMMENTS’’, ‘‘PROTEST’’, or f. Location: The proposed non-project www.ferc.gov/docs-filing/ ‘‘MOTION TO INTERVENE’’ as use would be located near mile marker ecomment.asp. You must include your applicable; (2) set forth in the heading 19.5 of the Osage River channel on the name and contact information at the end the name of the applicant and the Lake of the Ozarks, in Camden County, of your comments. Please include the project number of the application to Missouri. project number (P–2210–207) on any which the filing responds; (3) furnish g. Filed Pursuant to: Federal Power comments or motions filed. the name, address, and telephone Act, 16 U.S.C. 791a–825r. k. Description of Application: number of the person protesting or h. Applicant Contact: Mr. Jeff Green, Appalachian Power Company (licensee) intervening; and (4) otherwise comply Shoreline Supervisor, AmerenUE, P.O. filed an updated shoreline management with the requirements of 18 CFR Box 993, Lake Ozark, MO 65049, (573) plan (SMP) for Smith Mountain Lake 385.2001 through 385.2005. All 365–9214. and Leesville Lake, the two project comments, motions to intervene, or i. FERC Contact: Any questions on reservoirs. The licensee developed the protests must set forth their evidentiary this notice should be addressed to proposed SMP pursuant to the project basis and otherwise comply with the Shana High at (202) 502–8674, or license. The proposed SMP strives to requirements of 18 CFR 4.34(b). All [email protected]. balance environmental and recreational comments, motions to intervene, or j. Deadline for filing comments, resources with local economic interests, protests should relate to project works motions to intervene, and protests: April and includes provisions for shoreline which are the subject of the amendment 29, 2011. use classifications, shoreline and lake application. Agencies may obtain copies All documents may be filed use regulations, a permitting program, of the application directly from the electronically via the Internet. See 18 and cooperation with appropriate applicant. A copy of any protest or CFR 385.2001(a)(1)(iii) and the government agencies and stakeholders. motion to intervene must be served instructions on the Commission’s Web l. Locations of the Application: A upon each representative of the site at http://www.ferc.gov/docs-filing/ copy of the application is available for applicant specified in the particular efiling.asp. If unable to be filed inspection and reproduction at the application. If an intervener files electronically, documents may be paper- Commission’s Public Reference Room, comments or documents with the filed. To paper-file, an original and located at 888 First Street, NE, Room Commission relating to the merits of an seven copies should be mailed to: 2A, Washington, DC 20426, or by calling issue that may affect the responsibilities Secretary, Federal Energy Regulatory (202) 502–8371. This filing may also be of a particular resource agency, they Commission, 888 First Street, NE., viewed on the Commission’s Web site at must also serve a copy of the document Washington, DC 20426. Commenters http://www.ferc.gov using the ‘‘eLibrary’’ on that resource agency. A copy of all can submit brief comments up to 6,000 link. Enter the docket number excluding other filings in reference to this characters, without prior registration, the last three digits in the docket application must be accompanied by using the eComment system at http:// number field (P–2210) to access the proof of service on all persons listed in www.ferc.gov/docs-filing/ document. You may also register online the service list prepared by the ecomment.asp. You must include your at http://www.ferc.gov/docs-filing/ Commission in this proceeding, in name and contact information at the end esubscription.asp to be notified via accordance with 18 CFR 4.34(b) and of your comments. Please include the email of new filings and issuances 385.2010. project number (P–459–299) on any related to this or other pending projects. comments, motions, or Dated: March 17, 2011. For assistance, call 1–866–208–3676 or recommendations filed. e-mail [email protected], Kimberly D. Bose, k. Description of Request: The for TTY, call (202) 502–8659. A copy is Secretary. licensee requests Commission also available for inspection and [FR Doc. 2011–7992 Filed 4–4–11; 8:45 am] authorization to permit, after-the-fact, reproduction at the address in item (h) BILLING CODE 6717–01–P Kelly’s Port Marina’s use and above. maintenance of four commercial docks m. Individuals desiring to be included at their existing location and in their on the Commission’s mailing list should DEPARTMENT OF ENERGY current configuration. Two of the docks so indicate by writing to the Secretary have been on the lake over twenty years, Federal Energy Regulatory of the Commission. and were permitted by AmerenUE Commission n. Comments, Protests, or Motions To before the current license requirements. Intervene: Anyone may submit [Project No. 459–299] The other docks were installed and/or comments, a protest, or a motion to modified without the proper review or intervene in accordance with the Union Electric Company, dba permits. The marina accommodates 94 requirements of Rules of Practice and AmerenUE; Notice of Application for boats and 20 personal watercraft. Procedure, 18 CFR 385.210, .211, .214. Amendment of License and Soliciting l. Locations of the Application: A In determining the appropriate action to Comments, Motions To Intervene, and copy of the application is available for take, the Commission will consider all Protests inspection and reproduction at the protests or other comments filed, but Take notice that the following Commission’s Public Reference Room, only those who file a motion to hydroelectric application has been filed located at 888 First Street, NE, Room intervene in accordance with the with the Commission and is available 2A, Washington, DC 20426, or by calling Commission’s Rules may become a for public inspection: (202) 502–8371. This filing may also be party to the proceeding. Any comments, a. Application Type: Non-project use viewed on the Commission’s Web site at protests, or motions to intervene must of project lands and waters. http://www.ferc.gov using the ‘‘eLibrary’’ be received on or before the specified b. Project No: 459–299. link. Enter the docket number excluding comment date for the particular c. Date Filed: June 24, 2010. the last three digits in the docket application. d. Applicant: Union Electric number field to access the document. o. Filing and Service of Responsive Company, dba AmerenUE. You may also register online at http:// Documents: Any filing must (1) Bear in e. Name of Project: Osage www.ferc.gov/docs-filing/ all capital letters the title Hydroelectric Project. esubscription.asp to be notified via e-

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mail of new filings and issuances Dated: March 30, 2011. CFR 385.2001(a)(1) and the instructions related to this or other pending projects. Kimberly D. Bose, on the Commission’s Web site under For assistance, call 1–866–208–3676 or Secretary. http://www.ferc.gov/docs-filing/ e-mail [email protected], [FR Doc. 2011–8022 Filed 4–4–11; 8:45 am] efiling.asp. Commenters can submit for TTY, call (202) 502–8659. A copy is BILLING CODE 6717–01–P brief comments up to 6,000 characters, also available for inspection and without prior registration, using the reproduction at the address in item (h) eComment system at http:// above. DEPARTMENT OF ENERGY www.ferc.gov/docs-filing/ ecomment.asp. You must include your m. Individuals desiring to be included Federal Energy Regulatory name and contact information at the end on the Commission’s mailing list should Commission of your comments. If unable to be filed so indicate by writing to the Secretary electronically, documents may be paper- of the Commission. [Project No. 4784–081] filed. To paper-file, an original plus n. Comments, Protests, or Motions To Teton Power Funding, LLC; Topsham seven copies should be mailed to: Intervene: Anyone may submit Hydro Partners Limited Partnership; Kimberly D. Bose, Secretary, Federal comments, a protest, or a motion to Topsham Hydroelectric Generating Energy Regulatory Commission, 888 intervene in accordance with the Facility Trust No. 1; Brown Bear First Street, NE., Washington, DC 20426. requirements of Rules of Practice and Power, LLC; Notice of Application for More information about this project can Procedure, 18 CFR 385.210, .211, .214. Partial Transfer of License, and be viewed or printed on the eLibrary In determining the appropriate action to Soliciting Comments and Motions To link of Commission’s Web site at take, the Commission will consider all Intervene http://www.ferc.gov/docs-filing/ protests or other comments filed, but elibrary.asp. Enter the docket number On March 9, 2011, Teton Power only those who file a motion to (P–4784) in the docket number field to Funding, LLC (transferor), Topsham intervene in accordance with the access the document. For assistance, Hydro Partners Limited Partnership, Commission’s Rules may become a call toll-free 1–866–208–3372. Topsham Hydroelectric Generating party to the proceeding. Any comments, Facility Trust No. 1 (co-licensees) and Dated: March 17, 2011. protests, or motions to intervene must Brown Bear Power, LLC (transferee) Kimberly D. Bose, be received on or before the specified filed an application for the partial Secretary. comment date for the particular transfer of license for the Pejepscot [FR Doc. 2011–7983 Filed 4–4–11; 8:45 am] application. Project No. 4784, located on the BILLING CODE 6717–01–P o. Filing and Service of Responsive Androscoggin River in Sagadahoc, Documents: Any filing must (1) Bear in Cumberland, and Androscoggin all capital letters the title counties, Maine. DEPARTMENT OF ENERGY ‘‘COMMENTS’’, ‘‘PROTEST’’, or Applicants seek Commission approval ‘‘MOTION TO INTERVENE’’ as to partial transfer of the license for the Federal Energy Regulatory applicable; (2) set forth in the heading Pejescot Project from the transferor to Commission the name of the applicant and the transferee. [Docket No. CP11–133–000] project number of the application to Applicants’ Contact: Transferor: which the filing responds; (3) furnish Teton Power Funding, LLC: Paul Tennessee Gas Pipeline Company; the name, address, and telephone Rapisarda, c/o Atlantic Power Notice of Application number of the person protesting or Corporation, 200 Clarendon Street, 25th Take notice that on March 9, 2011, intervening; and (4) otherwise comply Floor, Boston, MA 02116, (617) 977– Tennessee Gas Pipeline Company with the requirements of 18 CFR 2491. Co-licensees: Topsham (Tennessee), filed an application in 385.2001 through 385.2005. All Hydroelectric Generating Facility Trust Docket No. CP11–133–000 pursuant to comments, motions to intervene, or No. 1: Nicole Poole, Topsham Hydroelectric Generating Facilities section 7(b) and (c) of the Natural Gas protests must set forth their evidentiary Act and Part 157 of the Commission’s basis and otherwise comply with the Trust No. 1, c/o U.S. Bank National Association, not in its individual Regulations, for a certificate of public requirements of 18 CFR 4.34(b). capacity, but solely as Owner Trustee, convenience and necessity to upgrade Agencies may obtain copies of the 300 Delaware Avenue, 9th floor, and modify compression facilities to be application directly from the applicant. Wilmington, DE 19801, (302) 576–3704. located in New York (Station 230C A copy of any protest or motion to Topsham Hydro Partners Limited Project). intervene must be served upon each Partnership: Christine M. Miller, Brown Tennessee proposes to replace two representative of the applicant specified Bear GP, LLC, c/o ArcLight Capital compressor units with two larger in the particular application. If an Partners, LLC, 200 Clarendon Street, compressor units, as well and make intervener files comments or documents 55th Floor, Boston, MA 02117, (617) other enhancements at its compressor with the Commission relating to the 531–6338. Transferee: Christine M. Station 230C near Lockport, New York, merits of an issue that may affect the Miller, Brown Bear Power, LLC, c/o in order to enhance the operational responsibilities of a particular resource ArcLight Capital Partners, LLC, 200 flexibility of the Niagara Spur Loop Line agency, they must also serve a copy of Clarendon Street, 55th Floor, Boston, (NSLL), a Canadian border crossing, and the document on that resource agency. MA 02117, (617) 531–6338. thereby enhance the flexibility and A copy of all other filings in reference FERC Contact: Patricia W. Gillis (202) reliability of transportation services to this application must be accompanied 502–8735, [email protected]. provided to shippers on the interstate by proof of service on all persons listed Deadline for filing comments and pipeline systems owned by National in the service list prepared by the motions to intervene: 20 days from the Fuel Gas Supply Corporation (National Commission in this proceeding, in issuance date of this notice. Comments Fuel) and Tennessee. As operator of accordance with 18 CFR 4.34(b) and and motions to intervene may be filed jointly-owned facilities, Tennessee 385.2010. electronically via the Internet. See 18 proposes the Station 230C

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enhancements in order to operate the stated below, file with the Federal 888 First Street, NE., Washington, DC NSLL and the Canadian border crossing Energy Regulatory Commission, 888 20426. bi-directionally. In a related application, First Street, NE., Washington, DC 20426, This filing is accessible on-line at National Fuel filed on March 7, 2011 in a motion to intervene in accordance http://www.ferc.gov, using the Docket No. CP11–128–000, seeking with the requirements of the ‘‘eLibrary’’ link and is available for authorization to enhance and modify Commission’s Rules of Practice and review in the Commission’s Public facilities on its system to offer bi- Procedure (18 CFR 385.214 or 385.211) Reference Room in Washington, DC. directional flow, and for the and the Regulations under the NGA (18 There is an ‘‘eSubscription’’ link on the transportation of natural gas to, and on CFR 157.10). A person obtaining party Web site that enables subscribers to the NSLL facilities for delivery to the status will be placed on the service list receive e-mail notification when a facilities of TransCanada PipeLines, Ltd. maintained by the Secretary of the document is added to a subscribed at Niagara (Northern Access Project). Commission and will receive copies of docket(s). For assistance with any FERC Both the Northern Access Project and all documents filed by the applicant and Online service, please e-mail the Station 230C Project enhancements by all other parties. A party must submit [email protected], or call will allow for bi-directional firm 7 copies of filings made with the (866) 208–3676 (toll free). For TTY, call transportation service for National Commission and must mail a copy to (202) 502–8659. Fuel’s shipper to the facilities of the applicant and to every other party in Comment Date: April 7, 2011. TransCanada PipeLines, Ltd. at Niagara, the proceeding. Only parties to the Dated: March 17, 2011. all as more fully set forth in the proceeding can ask for court review of Kimberly D. Bose, applications which are on file with the Commission orders in the proceeding. Secretary. Commission and open for public However, a person does not have to [FR Doc. 2011–7990 Filed 4–4–11; 8:45 am] inspection. Tennessee estimates the cost intervene in order to have comments of the Station 230C Project to be considered. The second way to BILLING CODE 6717–01–P $20,055,000. participate is by filing with the Any questions concerning this Secretary of the Commission, as soon as DEPARTMENT OF ENERGY application may be directed to James D. possible, an original and two copies of Johnston, Associate General Counsel, comments in support of or in opposition Federal Energy Regulatory Tennessee Gas Pipeline Company, 1001 to this project. The Commission will Commission Louisiana Street, Houston, Texas 77002, consider these comments in phone: (713) 420–4998, fax: (713) 420– determining the appropriate action to be [Docket No. CP11–132–000] taken, but the filing of a comment alone 1601, e-mail: Gulf South Pipeline Company, LP; will not serve to make the filer a party [email protected], or Thomas Notice of Application Joyce, Manager, Rates and Regulatory to the proceeding. The Commission’s Affairs, Tennessee Gas Pipeline rules require that persons filing Take notice that on March 9, 2011, Company, 1001 Louisiana Street, comments in opposition to the project Gulf South Pipeline Company, LP (Gulf Houston, Texas 77002, phone: (713) provide copies of their protests only to South), 9 Greenway Plaza, Suite 2800, 420–3299, fax: (713) 420–1605, e-mail: the party or parties directly involved in Houston, Texas 77046, filed in Docket [email protected]. the protest. No. CP11–132–000 an application Pursuant to section 157.9 of the Persons who wish to comment only pursuant to section 7(b) of the Natural Commission’s rules, 18 CFR 157.9, on the environmental review of this Gas Act (NGA) for permission and within 90 days of this Notice the project should submit an original and approval to abandon by sale to Commission staff will either: Complete two copies of their comments to the Boardwalk Field Services, LLC (Field its environmental assessment (EA) and Secretary of the Commission. Services) the Pettus Lateral Facilities in place it into the Commission’s public Environmental commentors will be Bee and Refugio Counties, Texas, all as record (eLibrary) for this proceeding; or placed on the Commission’s more fully set forth in the application issue a Notice of Schedule for environmental mailing list, will receive which is on file with the Commission Environmental Review. If a Notice of copies of the environmental documents, and open to public inspection.1 The Schedule for Environmental Review is and will be notified of meetings filing may also be viewed on the web at issued, it will indicate, among other associated with the Commission’s http://www.ferc.gov using the ‘‘eLibrary’’ milestones, the anticipated date for the environmental review process. link. Enter the docket number excluding Commission staff’s issuance of the final Environmental commentors will not be the last three digits in the docket environmental impact statement (FEIS) required to serve copies of filed number field to access the document. or EA for this proposal. The filing of the documents on all other parties. For assistance, contact FERC at EA in the Commission’s public record However, the non-party commentors [email protected] or call for this proceeding or the issuance of a will not receive copies of all documents toll-free, (886) 208–3676 or TYY, (202) Notice of Schedule for Environmental filed by other parties or issued by the 502–8659. Review will serve to notify federal and Commission (except for the mailing of Gulf South proposes to abandon by state agencies of the timing for the environmental documents issued by the sale the 40-mile long, 18-inch diameter completion of all necessary reviews, and Commission) and will not have the right Pettus Lateral and associated laterals the subsequent need to complete all to seek court review of the and gathering systems with related federal authorizations within 90 days of Commission’s final order. meters, receipt taps, and other the date of issuance of the Commission The Commission strongly encourages associated facilities located in Bee and staff’s FEIS or EA. electronic filings of comments, protests Refugio Counties, to Field Services. Gulf There are two ways to become and interventions in lieu of paper using South states that the Pettus Lateral involved in the Commission’s review of the ‘‘eFiling’’ link at http://www.ferc.gov. Facilities have a capacity of this project. First, any person wishing to Persons unable to file electronically approximately 27,000 Dekatherms per obtain legal status by becoming a party should submit an original and 7 copies to the proceedings for this project of the protest or intervention to the 1 Both Gulf South and Field Services are should, on or before the comment date Federal Energy Regulatory Commission, subsidiaries of Boardwalk Pipeline Partners, LP.

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day (D/th) of natural gas; however, Environmental commenters will be upgrade certain facilities on the jointly- production has declined and the current placed on the Commission’s owned Niagara Spur Loop Line (NSLL) line usage is approximately four percent environmental mailing list, will receive facilities so that the NSLL can be of capacity. Gulf South further states copies of the environmental documents, operated bi-directionally (Station 230C that Field Services would use the and will be notified of meetings Project). Both proposals will allow for facilities to transport high Btu-content associated with the Commission’s bi-directional firm transportation shale gas being developed in the Eagle environmental review process. service of 320,000 Dekatherms per day Ford shale formation in South Texas. Environmental commenters will not be of natural gas from the Rose Lake Gulf South also states that its proposed required to serve copies of filed interconnect to the facilities of abandonment would not have an documents on all other parties. TransCanada PipeLines, Ltd. at Niagara, adverse effect on Gulf South’s current However, the non-party commenters all as more fully set forth in the shippers. will not receive copies of all documents applications which are on file with the Any questions regarding this filed by other parties or issued by the Commission and open for public application should be directed to M. L. Commission (except for the mailing of inspection. The estimated total cost of Gutierrez, Director, Regulatory Affairs, environmental documents issued by the the Northern Access Project and the Gulf South Pipeline Company, LP, 9 Commission) and will not have the right Station 230C Project is $59,991,948. Greenway Plaza, Suite 2800, Houston, to seek court review of the Any questions regarding this Texas 77046, or by telephone (713) 215– Commission’s final order. application should be directed to 4015, facsimile (713) 479–1745, or e- Comments, protests and interventions Antoinetta Mucilli, Senior Attorney for mail to [email protected]. may be filed electronically via the National Fuel, 6363 Main Street, There are two ways to become Internet in lieu of paper. See, 18 CFR Williamsville, New York 14221, or call involved in the Commission’s review of 385.2001(a)(1)(iii) and the instructions at (716) 857–7067. this project. First, any person wishing to on the Commission’s Web site under the Pursuant to section 157.9 of the obtain legal status by becoming a party ‘‘e-Filing’’ link. Commission’s rules, 18 CFR 157.9, to the proceedings for this project Comment Date: April 7, 2011 within 90 days of this Notice the should, on or before the comment date Commission staff will either: complete stated below, file with the Federal Dated: March 17, 2011. its environmental assessment (EA) and Energy Regulatory Commission, 888 Kimberly D. Bose, place it into the Commission’s public First Street, NE., Washington, DC 20426, Secretary. record (eLibrary) for this proceeding; or a motion to intervene in accordance [FR Doc. 2011–7989 Filed 4–4–11; 8:45 am] issue a Notice of Schedule for with the requirements of the BILLING CODE 6717–01–P Environmental Review. If a Notice of Commission’s Rules of Practice and Schedule for Environmental Review is Procedure (18 CFR 385.214 or 385.211) issued, it will indicate, among other and the Regulations under the NGA (18 DEPARTMENT OF ENERGY milestones, the anticipated date for the CFR 157.10). A person obtaining party Commission staff’s issuance of the final status will be placed on the service list Federal Energy Regulatory environmental impact statement (FEIS) maintained by the Secretary of the Commission or EA for this proposal. The filing of the Commission and will receive copies of [Docket No. CP11–128–000] EA in the Commission’s public record all documents filed by the applicant and for this proceeding or the issuance of a by all other parties. A party must submit National Fuel Gas Supply Corporation; Notice of Schedule for Environmental 14 copies of filings made with the Notice Application Review will serve to notify federal and Commission and must mail a copy to state agencies of the timing for the the applicant and to every other party in Take notice that on March 7, 2011, completion of all necessary reviews, and the proceeding. Only parties to the National Fuel Gas Supply Corporation the subsequent need to complete all proceeding can ask for court review of (National Fuel), filed an application in federal authorizations within 90 days of Commission orders in the proceeding. Docket No. CP11–128–000 pursuant to the date of issuance of the Commission However, a person does not have to section 7(c) of the Natural Gas Act and staff’s FEIS or EA. intervene in order to have comments Part 157 of the Commission’s There are two ways to become considered. The second way to Regulations, for a certificate of public involved in the Commission’s review of participate is by filing with the convenience and necessity to construct this project. First, any person wishing to Secretary of the Commission, as soon as and operate its Northern Access Project. obtain legal status by becoming a party possible, an original and two copies of National Fuel requests authorization to: to the proceedings for this project comments in support of or in opposition (1) Construct a new compressor station should, on or before the comment date to this project. The Commission will in East Aurora, Erie County, New York, stated below, file with the Federal consider these comments in (2) make piping changes at the Concord Energy Regulatory Commission, 888 determining the appropriate action to be Compressor Station in Erie County, New First Street, NE., Washington, DC 20426, taken, but the filing of a comment alone York to permit bi-directional flow, and a motion to intervene in accordance will not serve to make the filer a party (3) install two additional compressor with the requirements of the to the proceeding. The Commission’s units at its existing Ellisburg Commission’s Rules of Practice and rules require that persons filing Compressor Station in Potter County, Procedure (18 CFR 385.214 or 385.211) comments in opposition to the project Pennsylvania. National Fuel also and the Regulations under the NGA (18 provide copies of their protests only to proposes to upgrade facilities at Rose CFR 157.10). A person obtaining party the party or parties directly involved in Lake near Ellisburg, to serve as a new status will be placed on the service list the protest. interconnection facility with Tennessee maintained by the Secretary of the Persons who wish to comment only Gas Pipeline Company (Tennessee). In a Commission and will receive copies of on the environmental review of this related application submitted by all documents filed by the applicant and project should submit an original and Tennessee in Docket No. CP11–133–000 by all other parties. A party must submit two copies of their comments to the on March 9, 2011, National Fuel and 7 copies of filings made with the Secretary of the Commission. Tennessee propose to modify and Commission and must mail a copy to

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the applicant and to every other party in Comment Date: April 7, 2011. docket(s). For assistance with any FERC the proceeding. Only parties to the Dated: March 17, 2011. Online service, please e-mail proceeding can ask for court review of Kimberly D. Bose, [email protected], or call Commission orders in the proceeding. (866) 208–3676 (toll free). For TTY, call Secretary. However, a person does not have to (202) 502–8659. [FR Doc. 2011–7988 Filed 4–4–11; 8:45 am] intervene in order to have comments Comment Date: 5 p.m. Eastern Time considered. The second way to BILLING CODE 6717–01–P on Friday, April 8, 2011. participate is by filing with the Secretary of the Commission, as soon as Dated: March 30, 2011. possible, an original and two copies of DEPARTMENT OF ENERGY Kimberly D. Bose, comments in support of or in opposition Secretary. Federal Energy Regulatory to this project. The Commission will [FR Doc. 2011–8019 Filed 4–4–11; 8:45 am] Commission consider these comments in BILLING CODE 6717–01–P determining the appropriate action to be [Docket No. PR11–98–000; Docket No. taken, but the filing of a comment alone PR11–99–000; Not Consolidated] will not serve to make the filer a party DEPARTMENT OF ENERGY to the proceeding. The Commission’s Humble Gas Pipeline Company; Cobra rules require that persons filing Pipeline Ltd.; Notice of Baseline Federal Energy Regulatory comments in opposition to the project Filings Commission provide copies of their protests only to Take notice that on March 28, 2011, the party or parties directly involved in [Project No. 12680–003; Project No. 12711– the applicants listed above submitted a the protest. 003] Persons who wish to comment only revised baseline filing of their Statement on the environmental review of this of Operating Conditions for services Ocean Renewable Power Company, project should submit an original and provided under section 311 of the LLC; Notice of Change in Docket two copies of their comments to the Natural Gas Policy Act of 1978 Number Secretary of the Commission. (‘‘NGPA’’). On July 24, 2009, Ocean Renewable Environmental commentors will be Any person desiring to participate in Power Company, LLC (ORPC) filed a placed on the Commission’s this rate proceeding must file a motion draft hydrokinetic pilot license environmental mailing list, will receive to intervene or to protest this filing in application (DLA) for the proposed copies of the environmental documents, accordance with Rules 211 and 214 of Eastport Tidal Energy Project, a and will be notified of meetings the Commission’s Rules of Practice and associated with the Commission’s Procedure (18 CFR 385.211 and proposal that unified two preliminary environmental review process. 385.214). Protests will be considered by permits held by ORPC, the Cobscook Environmental commentors will not be the Commission in determining the Bay Tidal Energy Project preliminary required to serve copies of filed appropriate action to be taken, but will permit (P–12711–004) and the Western documents on all other parties. not serve to make protestants parties to Passage Tidal Energy Project However, the non-party commentors the proceeding. Any person wishing to preliminary permit (P–12680–004). The will not receive copies of all documents become a party must file a notice of DLA was assigned a single docket filed by other parties or issued by the intervention or motion to intervene, as number, P–12680–003, to represent the Commission (except for the mailing of appropriate. Such notices, motions, or Eastport Tidal Energy Project pre-filing environmental documents issued by the protests must be filed on or before the proceeding. ORPC has since dropped Commission) and will not have the right date as indicated below. Anyone filing the Western Passage preliminary permit to seek court review of the an intervention or protest must serve a area from its pilot project proposal and Commission’s final order. copy of that document on the Applicant. is pursuing a pilot project license solely The Commission strongly encourages Anyone filing an intervention or protest for the Cobscook Bay preliminary electronic filings of comments, protests on or before the intervention or protest permit area. Due to this change in and interventions in lieu of paper using date need not serve motions to intervene project proposal, ORPC has changed the the ‘‘eFiling’’ link at http://www.ferc.gov. or protests on persons other than the name of its proposed pilot project from Persons unable to file electronically Applicant. the Eastport Tidal Energy Project to the should submit an original and 7 copies The Commission encourages Cobscook Bay Tidal Energy Project.1 of the protest or intervention to the electronic submission of protests and Due to Western Passage no longer being Federal Energy Regulatory Commission, interventions in lieu of paper using the a part of the pilot project proposal, the 888 First Street, NE., Washington, DC ‘‘eFiling’’ link at http://www.ferc.gov. docket number P–12680–003 has been 20426. Persons unable to file electronically closed and the docket number P–12711– This filing is accessible on-line at should submit an original and 7 copies 003 has been created and assigned to the http://www.ferc.gov, using the of the protest or intervention to the Cobscook Bay Tidal Energy Project pre- ‘‘eLibrary’’ link and is available for Federal Energy Regulatory Commission, filing proceeding. As part of this change review in the Commission’s Public 888 First Street, NE., Washington, DC in docket number, all current filings and Reference Room in Washington, DC. 20426. issuances associated with the Eastport There is an ‘‘eSubscription’’ link on the This filing is accessible on-line at Tidal Energy Project pre-filing web site that enables subscribers to http://www.ferc.gov, using the proceeding have been cross-referenced receive e-mail notification when a ‘‘eLibrary’’ link and is available for with P–12711–003. All future issuances document is added to a subscribed review in the Commission’s Public and filings for the Cobscook Bay Tidal docket(s). For assistance with any FERC Reference Room in Washington, DC. Energy Project pre-filing proceeding Online service, please e-mail There is an ‘‘eSubscription’’ link on the should solely reference docket number [email protected], or call Web site that enables subscribers to P–12711–003. (866) 208–3676 (toll free). For TTY, call receive e-mail notification when a (202) 502–8659. document is added to a subscribed 1 ORPC letter filed March 16, 2011.

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Dated: March 17, 2011. Route 6 West, Coudersport, • New discharge flow check meters Kimberly D. Bose, Pennsylvania 16915. and check valves along the existing 20- Secretary. This notice is being sent to the and 30-inch pipelines; • [FR Doc. 2011–7984 Filed 4–4–11; 8:45 am] Commission’s environmental mailing New station discharge cooling BILLING CODE 6717–01–P list for these projects. State and local equipment; and government representatives are asked to • Modification to station automation notify their constituents of these systems and installation of yard valves DEPARTMENT OF ENERGY proposed projects and encourage them to allow bi-directional flow. to comment on their areas of concern. The general locations of the projects’ Federal Energy Regulatory A fact sheet prepared by the FERC facilities are shown in appendix 1.1 Commission entitled ‘‘An Interstate Natural Gas Land Requirements for Construction Facility On My Land? What Do I Need [Docket No. CP11–128–000; Docket No. Construction of the Northern Access CP11–133–000] To Know?’’ was attached to the project notice National Fuel and TGP provided Project facilities would disturb a total of National Fuel Gas Supply Corporation; to landowners. This fact sheet addresses about 12.6 acres of land for the Tennessee Gas Pipeline Company; a number of typically-asked questions, aboveground facilities. Following Notice of Intent To Prepare an including the use of eminent domain construction, a total of about 11.4 acres Environmental Assessment for the and how to participate in the would be maintained for permanent Proposed Northern Access Project and Commission’s proceedings. It is also operation of the project’s facilities. Construction of the Station 230C Station 230c Project, Request for available for viewing on the FERC Project facilities would disturb about 7 Comments on Environmental Issues, website (http://www.ferc.gov). acres of land for the compressor station and Notice of Public Environmental upgrades and modifications; this Site Review Summary of the Proposed Projects National Fuel’s proposed Northern includes 4.6 acres of temporary The staff of the Federal Energy Access Project would provide about workspace outside the existing station Regulatory Commission (FERC or 320,000 dekatherms per day of firm fence line. About 2.4 acres of land Commission) will prepare an Marcellus Shale natural gas within the station fence line would be environmental assessment (EA) that will transportation service to northeastern required for operation of the project discuss the environmental impacts of and Canadian markets. The Northern facilities. two related projects proposed by Access Project would consist of the The EA Process National Fuel Gas Supply Corporation following: The National Environmental Policy (National Fuel) and Tennessee Gas • A new East Aurora Compressor Pipeline Company (TGP). National Act (NEPA) requires the Commission to Station, totaling 4,470-horsepower (hp), take into account the environmental Fuel’s Northern Access Project would and auxiliary facilities in Erie County, involve construction and operation of impacts that could result from an action New York; whenever it considers the issuance of a facilities in Erie County, New York and • Piping modifications at the existing Certificate of Public Convenience and Potter County, Pennsylvania. TGP’s Concord Compressor Station in Erie Necessity. NEPA also requires us 2 to Station 230C Project would involve County, New York to permit construction and operation of facilities discover and address concerns the bidirectional flow; public may have about proposals. This in Niagara County, New York. This EA • Two additional compressor units, process is referred to as ‘‘scoping’’. The will be used by the Commission in its totaling 9,470-hp, at the existing main goal of the scoping process is to decision-making process to determine Ellisburg Compressor Station in Potter focus the analysis in the EA on the whether these projects are in the public County, Pennsylvania; and important environmental issues. By this convenience and necessity. • Upgrades to the existing Rose Lake notice, the Commission requests public This notice announces the opening of Interconnection metering facilities at the comments on the scope of the issues to the scoping process the Commission Ellisburg Compressor Station. will use to gather input from the public TGP’s proposed project would address in the EA. All comments received will be considered during the and interested agencies on the projects. include upgrades and modifications at preparation of the EA. Your input will help the Commission its existing Compressor Station 230C in staff determine what issues need to be In the EA we will discuss impacts that Niagara County, New York, located on could occur as a result of the evaluated in the EA. Please note that the the Niagara Spur Loop Line (NSLL). scoping period will close on April 28, construction and operation of the TGP states that the purpose of the proposed projects under these general 2011. Station 230C Project is to make the Commission staff will conduct two headings: NSLL facilities, jointly owned with • Geology and Soils; onsite environmental reviews of National Fuel, a bi-directional pipeline. • Land Use; National Fuel’s proposed East Aurora TGP’s and National Fuel’s projects • Water Resources, Fisheries, and Compressor Station site and its Ellisburg would make the proposed receipt and Wetlands; Compressor Station expansion. All delivery service available to the • Endangered and Threatened interested parties planning to attend northeastern and Canadian markets. Species; must provide their own transportation. TGP’s project would consist of the Those attending should meet at the following facilities at the Compressor 1 The appendices referenced in this notice are not following locations: Station 230C: being printed in the Federal Register. Copies of • appendices were sent to all those receiving this East Aurora Compressor Station Site Abandonment by replacement of notice in the mail and are available at http:// Review April 11, 2011, at 2 pm, Meet the A2 and A3 compressor engines; www.ferc.gov using the link called ‘‘eLibrary’’ or at Tops Plaza, 65 Grey Street, East • Restaging of centrifugal from the Commission’s Public Reference Room, 888 Aurora, New York 14052. compressors for units A2, A3, and A4 to First Street, NE., Washington, DC 20426, or call Ellisburg Compressor Station Site match bi-directional flow conditions; (202) 502–8371. For instructions on connecting to • eLibrary, refer to the last two pages of this notice. Review April 14, 2011, at 8 am, Meet at Piping modifications to allow 2 ‘‘We,’’ ‘‘us,’’ and ‘‘our’’ refer to the environmental the Westgate Inn Hotel (Lobby), 307 reverse flow; staff of the Commission’s Office of Energy Projects.

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• Vegetation and Wildlife; and access roads). Our EA for these interested parties; and local libraries • Cultural Resources; projects will document our findings on and newspapers. This list also includes • Air Quality and Noise; and the impacts on historic properties and all affected landowners (as defined in • Public safety. summarize the status of consultations the Commission’s regulations) who are We will also evaluate reasonable under section 106. potential right-of-way grantors, whose alternatives to the proposed projects or property may be used temporarily for Public Participation portions of the projects, and make project purposes, or who own homes recommendations on how to lessen or You can make a difference by within certain distances of aboveground avoid impacts on the various resource providing us with your specific facilities, and anyone who submits areas. comments or concerns about the comments on the projects. We will Our independent analysis of the projects. Your comments should focus update the environmental mailing list as issues will be presented in the EA. The on the potential environmental effects, the analysis proceeds to ensure that we EA will be placed in the public record reasonable alternatives, and measures to send the information related to this and, depending on the comments avoid or lessen environmental impacts. environmental review to all individuals, received during the scoping process, The more specific your comments, the organizations, and government entities may be published and distributed to the more useful they will be. To ensure that interested in and/or potentially affected public. A comment period will be your comments are timely and properly by the proposed projects. allotted if the EA is published for recorded, please send your comments so If the EA is published for distribution, review. We will consider all comments that they will be received in copies will be sent to the environmental on the EA before we make our Washington, DC on or before April 28, mailing list for public review and recommendations to the Commission. 2011. comment. If you would prefer to receive To ensure your comments are For your convenience, there are three a paper copy of the document instead of considered, please carefully follow the methods which you can use to submit the CD version or would like to remove instructions in the Public Participation your comments to the Commission. In your name from the mailing list, please section beginning on page 5. all instances please reference the project return the attached Information Request With this notice, we are asking docket numbers (CP11–128–000 and (appendix 2). agencies with jurisdiction and/or CP11–133–000) with your submission. Becoming an Intervenor special expertise with respect to The Commission encourages electronic environmental issues to formally filing of comments and has expert In addition to involvement in the EA cooperate with us in the preparation of eFiling staff available to assist you at scoping process, you may want to the EA. These agencies may choose to (202) 502–8258 or [email protected]. become an ‘‘intervenor’’ which is an participate once they have evaluated the (1) You may file your comments official party to the Commission’s proposal relative to their electronically by using the eComment proceeding. Intervenors play a more responsibilities. Agencies that would feature, which is located on the formal role in the process and are able like to request cooperating agency status Commission’s Web site at http:// to file briefs, appear at hearings, and be should follow the instructions for filing www.ferc.gov under the link to heard by the courts if they choose to comments provided under the Public Documents and Filings. An eComment appeal the Commission’s final ruling. Participation section of this notice. is an easy method for interested persons An intervenor formally participates in to submit brief, text-only comments on the proceeding by filing a request to Consultations Under Section 106 of the a project; intervene. Instructions for becoming an National Historic Preservation Act (2) You may file your comments intervenor are included in the User’s In accordance with the Advisory electronically by using the eFiling Guide under the ‘‘e-filing’’ link on the Council on Historic Preservation’s feature, which is located on the Commission’s Web site. implementing regulations for section Commission’s Web site at http:// Additional Information 106 of the National Historic www.ferc.gov under the link to Preservation Act, we are using this Documents and Filings. With eFiling, Additional information about the notice to initiate consultation with you can provide comments in a variety projects is available from the applicable State Historic Preservation of formats by attaching them as a file Commission’s Office of External Affairs, Offices (SHPO), and to solicit their with your submission. New eFiling at (866) 208–FERC, or on the FERC Web views and those of other government users must first create an account by site at http://www.ferc.gov using the agencies, interested Indian tribes, and clicking on ‘‘eRegister.’’ You will be ‘‘eLibrary’’ link. Click on the eLibrary the public on the projects’ potential asked to select the type of filing you are link, click on ‘‘General Search’’ and enter effects on historic properties.3 We will making. A comment on a particular the docket number, excluding the last define the project-specific Area of project is considered a ‘‘Comment on a three digits in the Docket Number field Potential Effects (APE) in consultation Filing’’; or (i.e., CP11–128 or CP11–133). Be sure with the SHPOs as the projects are (3) You may file a paper copy of your you have selected an appropriate date further developed. On natural gas comments at the following address: range. For assistance, please contact facility projects, the APE at a minimum Kimberly D. Bose, Secretary, Federal FERC Online Support at encompasses all areas subject to ground Energy Regulatory Commission, 888 [email protected] or toll free disturbance (examples include First Street, NE., Room 1A, at (866) 208–3676, or for TTY, contact construction right-of-way, contractor/ Washington, DC 20426. (202) 502–8659. The eLibrary link also pipe storage yards, compressor stations, provides access to the texts of formal Environmental Mailing List documents issued by the Commission, 3 The Advisory Council on Historic Preservation’s The environmental mailing list such as orders, notices, and regulations are at Title 36, Code of Federal includes federal, state, and local rulemakings. Regulations, Part 800. Historic properties are government representatives and In addition, the Commission now defined in those regulations as any prehistoric or offers a free service called eSubscription historic district, site, building, structure, or object agencies; elected officials; included in or eligible for inclusion in the National environmental and public interest which allows you to keep track of all Register for Historic Places. groups; Native American Tribes; other formal issuances and submittals in

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specific dockets. This can reduce the This filing is accessible on-line at Persons unable to file electronically amount of time you spend researching http://www.ferc.gov, using the should submit an original and 14 copies proceedings by automatically providing ‘‘eLibrary’’ link and is available for of the protest or intervention to the you with notification of these filings, review in the Commission’s Public Federal Energy Regulatory Commission, document summaries, and direct links Reference Room in Washington, DC. 888 First Street, NE., Washington, DC to the documents. Go to http:// There is an ‘‘eSubscription’’ link on the 20426. www.ferc.gov/esubscribenow.htm. Web site that enables subscribers to This filing is accessible on-line at Finally, public meetings or site visits receive e-mail notification when a http://www.ferc.gov, using the will be posted on the Commission’s document is added to a subscribed ‘‘eLibrary’’ link and is available for calendar located at http://www.ferc.gov/ docket(s). For assistance with any FERC review in the Commission’s Public EventCalendar/EventsList.aspx along Online service, please e-mail Reference Room in Washington, DC. with other related information. [email protected], or call There is an ‘‘eSubscription’’ link on the Dated: March 29, 2011. (866) 208–3676 (toll free). For TTY, call Web site that enables subscribers to Kimberly D. Bose, (202) 502–8659. receive e-mail notification when a Comment Date: 5 p.m. Eastern Time document is added to a subscribed Secretary. on Wednesday, March 24, 2011. docket(s). For assistance with any FERC [FR Doc. 2011–8030 Filed 4–4–11; 8:45 am] Dated: March 17, 2011. Online service, please e-mail BILLING CODE 6717–01–P Kimberly D. Bose, [email protected], or call (866) 208–3676 (toll free). For TTY, call Secretary. (202) 502–8659. DEPARTMENT OF ENERGY [FR Doc. 2011–7987 Filed 4–4–11; 8:45 am] Comment Date: 5 p.m. Eastern Time BILLING CODE 6717–01–P Federal Energy Regulatory on April 14, 2011. Commission Dated: March 29, 2011. [Docket Nos. PR11–95–000] DEPARTMENT OF ENERGY Kimberly D. Bose, Secretary. American Midstream (Louisiana Federal Energy Regulatory [FR Doc. 2011–8028 Filed 4–4–11; 8:45 am] Commission Intrastate), LLC; Notice of Filing BILLING CODE 6717–01–P Take notice that on March 16, 2011, [Docket No. EL11–31–000] American Midstream (Louisiana City of Springfield, Illinois, City Water, DEPARTMENT OF ENERGY Intrastate), LLC (AMLI) filed to revise its Light and Power; Notice of Filing Fuel Retention percentage and to revise Federal Energy Regulatory section 3.2 of its Statement of Operating Take notice that on March 24, 2011, Commission Conditions to remove obsolete and The City of Springfield, Illinois, City unnecessary language as more fully Water, Light and Power (CWLP), filed [Docket No. PR11–97–000] described in the filing. its proposed rate schedule, which Jefferson Island Storage & Hub, L.L.C.; Any person desiring to participate in specified CWLP’s cost-based revenue Notice of Filing this rate filing must file in accordance requirements for Reactive Supply and with Rules 211 and 214 of the Voltage Control from Generation Take notice that on March 28, 2011, Commission’s Rules of Practice and Sources Service supplied by five CWLP Jefferson Island Storage & Hub, L.L.C. Procedure (18 CFR 385.211 and generating units, pursuant to the Open (Jefferson Island) submitted a revised 385.214). Protests will be considered by Access Transmission and Energy Statement of Operating Conditions the Commission in determining the Markets Tariff of the Midwest (SOC) for services provided under appropriate action to be taken, but will Independent Transmission System section 311 of the Natural Gas Policy not serve to make protestants parties to Operator, Inc, along with supporting Act of 1978 (‘‘NGPA’’). Jefferson Island the proceeding. Any person wishing to testimony and data. proposes to revise its SOC to provide its become a party must file a notice of Any person desiring to intervene or to customers the option to use pooling intervention or motion to intervene, as protest this filing must file in points as additional points of receipt appropriate. Such notices, motions, or accordance with Rules 211 and 214 of and/or delivery under their service protests must be filed on or before the the Commission’s Rules of Practice and agreements, as more fully described in date as indicated below. Anyone filing Procedure (18 CFR 385.211, 385.214). the application. an intervention or protest must serve a Protests will be considered by the Any person desiring to participate in copy of that document on the Applicant. Commission in determining the this rate filing must file in accordance Anyone filing an intervention or protest appropriate action to be taken, but will with Rules 211 and 214 of the on or before the intervention or protest not serve to make protestants parties to Commission’s Rules of Practice and date need not serve motions to intervene the proceeding. Any person wishing to Procedure (18 CFR 385.211 and or protests on persons other than the become a party must file a notice of 385.214). Protests will be considered by Applicant. intervention or motion to intervene, as the Commission in determining the The Commission encourages appropriate. Such notices, motions, or appropriate action to be taken, but will electronic submission of protests and protests must be filed on or before the not serve to make protestants parties to interventions in lieu of paper using the comment date. On or before the the proceeding. Any person wishing to ‘‘eFiling’’ link at http://www.ferc.gov. comment date, it is not necessary to become a party must file a notice of Persons unable to file electronically serve motions to intervene or protests intervention or motion to intervene, as should submit an original and 7 copies on persons other than the Applicant. appropriate. Such notices, motions, or of the protest or intervention to the The Commission encourages protests must be filed on or before the Federal Energy Regulatory Commission, electronic submission of protests and date as indicated below. Anyone filing 888 First Street, NE., Washington, DC interventions in lieu of paper using the an intervention or protest must serve a 20426. ‘‘eFiling’’ link at http://www.ferc.gov. copy of that document on the Applicant.

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Anyone filing an intervention or protest promoting the conservation of migratory and 385.214). Protests will be on or before the intervention or protest bird populations and furthering considered by the Commission in date need not serve motions to intervene implementation of the migratory bird determining the appropriate action to be or protests on persons other than the conventions, the Migratory Bird Treaty taken, but will not serve to make Applicant. Act, the Bald and Golden Eagle protestants parties to the proceeding. The Commission encourages Protection Act, and other pertinent Any person wishing to become a party electronic submission of protests and statutes. The implementation of the must file a notice of intervention or interventions in lieu of paper using the MOU will be coordinated through motion to intervene, as appropriate. ‘‘eFiling’’ link at http://www.ferc.gov. ongoing communication between the Such notices, motions, or protests must Persons unable to file electronically FERC Office of Energy Projects and the be filed on or before the date as should submit an original and 7 copies FWS Division of Migratory Bird indicated below. Anyone filing an of the protest or intervention to the Management. intervention or protest must serve a Federal Energy Regulatory Commission, The MOU will be available on the copy of that document on the Applicant. 888 First Street, NE., Washington, DC FERC (http://www.ferc.gov/legal/maj- Anyone filing an intervention or protest 20426. ord-reg/mou.asp) and FWS (http:// on or before the intervention or protest This filing is accessible online at www.fws.gov/migratorybirds/ date need not serve motions to intervene http://www.ferc.gov, using the PartnershipsAndIniatives.html) Web or protests on persons other than the ‘‘eLibrary’’ link and is available for sites. Applicant. review in the Commission’s Public For further information, contact Alan The Commission encourages Reference Room in Washington, DC. Mitchnick, 202–502–6074, electronic submission of protests and There is an ‘‘eSubscription’’ link on the [email protected] (hydropower); interventions in lieu of paper using the Web site that enables subscribers to Medha Kochhar, 202–502–8964, ‘‘eFiling’’ link at http://www.ferc.gov. receive e-mail notification when a [email protected] (natural gas Persons unable to file electronically document is added to a subscribed pipelines); or Shannon Crosley, 202– should submit an original and 7 copies docket(s). For assistance with any FERC 502–8853, [email protected] of the protest or intervention to the Online service, please e-mail (transmission lines). Federal Energy Regulatory Commission, [email protected], or call Dated: March 30, 2011. 888 First Street, NE., Washington, DC (866) 208–3676 (toll free). For TTY, call Kimberly D. Bose, 20426. (202) 502–8659. Secretary. This filing is accessible online at Comment Date: 5 p.m. Eastern Time [FR Doc. 2011–8021 Filed 4–4–11; 8:45 am] http://www.ferc.gov, using the on Friday, April 8, 2011. ‘‘eLibrary’’ link and is available for BILLING CODE 6717–01–P Dated: March 30, 2011. review in the Commission’s Public Kimberly D. Bose, Reference Room in Washington, DC. Secretary. DEPARTMENT OF ENERGY There is an ‘‘eSubscription’’ link on the [FR Doc. 2011–8027 Filed 4–4–11; 8:45 am] Web site that enables subscribers to Federal Energy Regulatory BILLING CODE 6717–01–P receive e-mail notification when a Commission document is added to a subscribed [Docket No. PR09–6–003] docket(s). For assistance with any FERC DEPARTMENT OF ENERGY Online service, please e-mail J–W Pipeline Company; Notice of [email protected], or call Federal Energy Regulatory Motion for Extension of Rate Case (866) 208–3676 (toll free). For TTY, call Commission Filing Deadline (202) 502–8659. Comment Date: 5 p.m. Eastern Time Notice of Availability of a Take notice that on March 28, 2011, on Friday, April 8, 2011. Memorandum of Understanding J–W Pipeline Company (J–W) filed a Between the Federal Energy request for an extension consistent with Dated: March 30, 2011. Regulatory Commission and the U.S. the Commission’s revised policy of Kimberly D. Bose, Fish and Wildlife Service To Promote periodic review from a triennial to a five Secretary. Conservation of Migratory Birds year period. The Commission in Order [FR Doc. 2011–8026 Filed 4–4–11; 8:45 am] No. 735 modified its policy concerning BILLING CODE 6717–01–P This notice announces the availability periodic reviews of rates charges by of a Memorandum of Understanding section 311 and Hinshaw pipelines to (MOU) between the Federal Energy extend the cycle for such reviews from DEPARTMENT OF ENERGY Regulatory Commission (FERC) and the three to five years.1 Therefore, J–W U.S. Fish and Wildlife Service (FWS) to requests that the date for its next rate Federal Energy Regulatory Promote Conservation of Migratory filing be extended to November 21, Commission Birds signed March 30, 2011. The MOU 2013, which is five years from the date provides for strengthening migratory [Docket No. CP11–30–000; Docket No. of J–W’s most recent rate filing with this CP11–41–000] bird conservation by identifying and Commission. implementing strategies that promote Any person desiring to participate in Tennessee Gas Pipeline Company; conservation and reduce or eliminate this rate proceeding must file a motion Dominion Transmission, Inc.; Notice of adverse impacts on migratory birds to intervene or to protest this filing must Onsite Environmental Review through enhanced collaboration file in accordance with Rules 211 and between FERC and FWS. 214 of the Commission’s Rules of On April 12 and 13, 2011, the Office The MOU identifies specific activities Practice and Procedure (18 CFR 385.211 of Energy Projects (OEP) staff will be in where cooperation between FERC and Wyoming County, New York, and Tioga FWS will contribute to the conservation 1 Contract Reporting Requirements of Intrastate and Bradford Counties, Pennsylvania to of migratory birds and their habitat, and Natural Gas Companies, Order No. 735, 131 FERC gather data for the environmental outlines a collaborative approach to ¶ 61,150 (May 20, 2010). analysis of two related projects

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proposed by Tennessee Gas Pipeline DEPARTMENT OF ENERGY without prior registration, using the Company (TGP) and Dominion eComment system at http:// Transmission, Inc. (DTI). On April 12, Federal Energy Regulatory www.ferc.gov/docs-filing/ 2011, OEP staff will visit the location for Commission ecomment.asp. You must include your the proposed Silver Springs Compressor [Project No. 13810–000] name and contact information at the end Station associated with DTI’s Ellisburg of your comments. For assistance, to Craigs Project under consideration in Lock Hydro Friends Fund LII; Notice of please contact FERC Online Support at Docket No. CP11–41–000. On April 13, Preliminary Permit Application [email protected]; call toll- 2011, OEP staff will visit the proposed Accepted for Filing and Soliciting free at (866) 208–3676; or, for TTY, Loop 315 pipeline route associated with Comments, Motions To Intervene, and contact (202) 502–8659. Although the TGP’s Northeast Supply Diversification Competing Applications Commission strongly encourages electronic filing, documents may also be Project under consideration in Docket On July 12, 2010, Lock Hydro Friends paper-filed. To paper-file, mail an No. CP11–30–000. These onsite reviews Fund LII, filed an application, pursuant original and seven copies to: Kimberly will assist staff in completing its to section 4(f) of the Federal Power Act, D. Bose, Secretary, Federal Energy proposing to study the feasibility of evaluation of the environmental impacts Regulatory Commission, 888 First hydropower at the U.S. Army Corps of of the proposed projects. Viewing of the Street, NE., Washington, DC 20426. Engineers (Corps) Green River Lock and areas is anticipated to be from public More information about this project, Dam located on the Green River in access points and adjacent existing including a copy of the application, can Henderson County, Kentucky. The sole right-of-way. be viewed or printed on the ‘‘eLibrary’’ purpose of a preliminary permit, if All interested parties planning to link of the Commission’s Web site at issued, is to grant the permit holder http://www.ferc.gov/docs-filing/ attend must provide their own priority to file a license application elibrary.asp. Enter the docket number transportation. Those attending should during the permit term. A preliminary (P–13810–000) in the docket number meet at the following locations: permit does not authorize the permit field to access the document. For holder to perform any land-disturbing Silver Springs Compressor Station Site assistance, contact FERC Online activities or otherwise enter upon lands Review, April 12, 2011, 9 a.m. (EST), Support. Meet at DTI Randall Gate Site, 4478 or waters owned by others without the Dated: March 17, 2011. Oak Hill Road (near intersection of, owners’ express permission. Oak Hill Road and West Lake Road), The proposed project would consist of Kimberly D. Bose, the following: (1) Two prefabricated Silver Springs, NY 14550. Secretary. concrete walls attached to the [FR Doc. 2011–7985 Filed 4–4–11; 8:45 am] Loop 315 Site Review, April 13, 2011, downstream side of the Corps dam BILLING CODE 6717–01–P 1 p.m. (EST), Meet at TGP Compressor which would support one frame Station 317, 1249 Tennessee Gas module; (2) the frame module would be Road, (near intersection of Routes 14 109 feet long, 40 feet high, and weigh DEPARTMENT OF ENERGY and 514), Troy, PA 16947. 1.16 million pounds and contain 10 Please use the Federal Energy generating units with a total combined Federal Energy Regulatory Regulatory Commission’s free capacity of 19.0 megawatts (MW); (3) a Commission eSubscription service to keep track of all new switchyard containing a [Project No. 13818–000] formal issuances and submittals in these transformer; (4) a proposed 5.0-mile- dockets. This can reduce the amount of long, 69-kilovolt (kV) transmission line Lock Hydro Friends Fund LI; Notice of to an existing distribution line. The time you spend researching proceedings Preliminary Permit Application proposed project would have an average by automatically providing you with Accepted for Filing and Soliciting annual generation of 83.277 gigawatt- notification of these filings, document Comments, Motions To Intervene, and hours (GWh), which would be sold to a Competing Applications summaries, and direct links to the local utility. documents. To register for this service, Applicant Contact: Mr. Wayne On July 16, 2010, Lock Hydro Friends go to http://www.ferc.gov/ Krouse, Hydro Green Energy LLC, 5090 Fund LI, filed an application, pursuant esubscribenow.htm. Richmond Avenue #390, Houston, TX to section 4(f) of the Federal Power Act, Information about specific onsite 77056; phone (877) 556–6566 x709. proposing to study the feasibility of environmental reviews is posted on the FERC Contact: Michael Spencer, (202) hydropower at the U.S. Army Corps of Commission’s calendar at http:// 502–6093. Engineers (Corps) Kentucky River Lock www.ferc.gov/EventCalendar/ Deadline for filing comments, motions and Dam located on the Kentucky River EventsList.aspx. For additional to intervene, competing applications in Carroll County, Kentucky. The sole (without notices of intent), or notices of purpose of a preliminary permit, if information, contact Office of External intent to file competing applications: 60 issued, is to grant the permit holder Affairs at (866) 208–FERC. days from the issuance of this notice. priority to file a license application Dated: March 29, 2011. Competing applications and notices of during the permit term. A preliminary Kimberly D. Bose, intent must meet the requirements of 18 permit does not authorize the permit Secretary. CFR 4.36. Comments, motions to holder to perform any land-disturbing [FR Doc. 2011–8029 Filed 4–4–11; 8:45 am] intervene, notices of intent, and activities or otherwise enter upon lands competing applications may be filed or waters owned by others without the BILLING CODE 6717–01–P electronically via the Internet. See 18 owners’ express permission. CFR 385.2001(a)(1)(iii) and the The proposed project would consist of instructions on the Commission’s Web the following: (1) Two prefabricated site http://www.ferc.gov/docs-filing/ concrete walls attached to the efiling.asp. Commenters can submit downstream side of the Corps dam brief comments up to 6,000 characters, which would support one frame

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module; (2) the frame module would be DEPARTMENT OF ENERGY CFR 4.36. Comments, motions to 52 feet long, 40 feet high, and weigh intervene, notices of intent, and 600,000 pounds and contain 4 Federal Energy Regulatory competing applications may be filed generating units with a total combined Commission electronically via the Internet. See 18 capacity of 2.0 megawatts (MW); (3) a [Project No. 14106–000] CFR 385.2001(a)(1)(iii) and the new switchyard containing a instructions on the Commission’s Web transformer; (4) a proposed 2.0-mile- Kahawai Power 5, LLC; Notice of site http://www.ferc.gov/docs-filing/ long, 69-kilovolt (kV) transmission line Preliminary Permit Application efiling.asp. Commenters can submit to an existing distribution line. The Accepted for Filing and Soliciting brief comments up to 6,000 characters, proposed project would have an average Comments, Motions To Intervene, and without prior registration, using the annual generation of 8.766 gigawatt- Competing Applications eComment system at http:// hours (GWh), which would be sold to a www.ferc.gov/docs-filing/ local utility. On March 1, 2011, Kahawai Power 5, ecomment.asp. You must include your LLC filed an application for a Applicant Contact: Mr. Wayne name and contact information at the end preliminary permit, pursuant to section of your comments. For assistance, Krouse, Hydro Green Energy LLC, 5090 4(f) of the Federal Power Act (FPA), please contact FERC Online Support. Richmond Avenue #390, Houston, TX proposing to study the feasibility of the Although the Commission strongly 77056; phone (877) 556–6566 x709. Wailua Reservoir Water Power (Wailua encourages electronic filing, documents FERC Contact: Michael Spencer, (202) Reservoir project) to be located on the may also be paper-filed. To paper-file, 502–6093. Wailua reservoir in the vicinity of mail an original and seven copies to: Deadline for filing comments, motions Wailua Homesteads, in Kauai County, Kimberly D. Bose, Secretary, Federal to intervene, competing applications Hawaii. The sole purpose of a Energy Regulatory Commission, 888 (without notices of intent), or notices of preliminary permit, if issued, is to grant First Street, NE., Washington, DC 20426. intent to file competing applications: 60 the permit holder priority to file a More information about this project, days from the issuance of this notice. license application during the permit including a copy of the application, can Competing applications and notices of term. A preliminary permit does not be viewed or printed on the ‘‘eLibrary’’ intent must meet the requirements of 18 authorize the permit holder to perform link of the Commission’s Web site at CFR 4.36. Comments, motions to any land-disturbing activities or http://www.ferc.gov/docs-filing/ intervene, notices of intent, and otherwise enter upon lands or waters elibrary.asp. Enter the docket number competing applications may be filed owned by others without the owners’ (P–14106–000) in the docket number electronically via the Internet. See 18 express permission. CFR 385.2001(a)(1)(iii) and the The proposed project will utilize field to access the document. For instructions on the Commission’s web flows from the existing 1,400-foot-long assistance, contact FERC Online site http://www.ferc.gov/docs-filing/ earth-fill dam on the Wailua Reservoir, Support. efiling.asp. Commenters can submit which is owned and operated by State Dated: March 30, 2011. brief comments up to 6,000 characters, of Hawaii’s Department of Land and Kimberly D. Bose, without prior registration, using the Natural Resources. New project features Secretary. eComment system at http:// would consist of the following: (1) An [FR Doc. 2011–8025 Filed 4–4–11; 8:45 am] www.ferc.gov/docs-filing/ intake structure at the existing 36-inch BILLING CODE 6717–01–P ecomment.asp. You must include your low-level outlet structure with a trash name and contact information at the end rack and control gate; (2) 14,600-foot- of your comments. For assistance, long, 42-inch-diameter steel penstock DEPARTMENT OF ENERGY please contact FERC Online Support at from the intake structure to the [email protected]; call toll- powerhouse; (3) a 50-foot by 40-foot Federal Energy Regulatory free at (866) 208–3676; or, for TTY, reinforced concrete powerhouse Commission contact (202) 502–8659. Although the containing one two-jet Turgo turbine [Docket No. CP11–144–000] Commission strongly encourages with a capacity of 2 megawatts; (4) a 45- electronic filing, documents may also be foot-long, 15-foot-wide tailrace channel; El Paso Natural Gas Company; Notice paper-filed. To paper-file, mail an (5) an approximately 12,500-foot-long, of Request Under Blanket original and seven copies to: Kimberly 69-kilovolt transmission line which will Authorization D. Bose, Secretary, Federal Energy tie into the existing grid near the Regulatory Commission, 888 First Lyngate switchyard; and (6) appurtenant Take notice that on March 22, 2011, Street, NE., Washington, DC 20426. facilities. The estimated annual El Paso Natural Gas Company (El Paso), More information about this project, generation of the Wailua Reservoir Post Office Box 1087, Colorado Springs, including a copy of the application, can project would be 11.5 gigawatt-hours. CO 80944, filed a prior notice request be viewed or printed on the ‘‘eLibrary’’ Applicant Contact: Ramya pursuant to sections 157.205(b) and link of the Commission’s Web site at Swaminthan, Kawahai Power 5, LLC, 157.208(f) of the Federal Energy http://www.ferc.gov/docs-filing/ 239 Causeway St., Boston, MA 02114; Regulatory Commission’s regulations elibrary.asp. Enter the docket number phone: (978) 226–1531. and pursuant to El Paso’s Part 157 (P–13818–000) in the docket number FERC Contact: Ryan Hansen (202) blanket certificate issued in Docket No. field to access the document. For 502–8074 or through e-mail at CP82–435–000. El Paso proposes to assistance, contact FERC Online [email protected]. increase the certificated Maximum Support. Deadline for filing comments, motions Allowable Operating Pressure (MAOP) to intervene, competing applications of a 1.2 mile, 2-inch outer-diameter Dated: March 17, 2011. (without notices of intent), or notices of segment of pipe located in El Paso Kimberly D. Bose, intent to file competing applications: 60 County, Texas. Specifically, El Paso Secretary. days from the issuance of this notice. requests authorization to increase the [FR Doc. 2011–7986 Filed 4–4–11; 8:45 am] Competing applications and notices of certificated MAOP of a segment of Line BILLING CODE 6717–01–P intent must meet the requirements of 18 No. 2053 running from the El Paso-

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Douglas Line to the U.S. Detention filed by other parties or issued by the FOR FURTHER INFORMATION CONTACT: Prison from its currently certificated Commission (except for the mailing of Paula Zampieri, the Designated Federal MAOP of 700 psig to 837 psig. El Paso environmental documents issued by the Officer for the Small Community avers the increase in MAOP will reduce Commission) and will not have the right Advisory Subcommittee at (202) 566– operational and maintenance cost by to seek court review of the 2496 or e-mail at eliminating the need to monitor and Commission’s final order. [email protected]. maintain pressure control and The Commission strongly encourages SUPPLEMENTARY INFORMATION: This is an overpressure protection equipment. El electronic filings of comments, protests, open meeting and all interested persons Paso also states that there will be no and interventions via the Internet in lieu are invited to participate. The effect to capacity on either the segment of paper. See 18 CFR 385.2001(a)(1)(iii) Committee will allow time for public being increased or the remainder of Line and the instructions on the comment between 2:45 p.m. to 3:15 p.m. No. 2053, all as more fully set forth in Commission’s Web site (http:// during the teleconference meeting dates the application, which is on file with www.ferc.gov) under the ‘‘e-Filing’’ link. listed above. Individuals or the Commission and open to public Dated: March 30, 2011 . organizations wishing to address the inspection. The filing may also be Kimberly D. Bose, Committee will be allowed a maximum viewed on the Web at http:// of five minutes to present their point of www.ferc.gov using the ‘‘eLibrary’’ link. Secretary. view. Also, written comments should be Enter the docket number excluding the [FR Doc. 2011–8020 Filed 4–4–11; 8:45 am] submitted electronically to last three digits in the docket number BILLING CODE 6717–01–P [email protected]. Please contact field to access the document. For the Designated Federal Officer (DFO) at assistance, contact FERC at the number listed to schedule agenda [email protected] or call ENVIRONMENTAL PROTECTION time. Time will be allotted on a first toll-free, (866) 208–3676 or TTY, (202) AGENCY come first serve basis, and the total 502–8659. [FRL–9289–8] Any questions regarding this period for comments may be extended application should be directed to Susan if the number of requests for Monthly Public Meetings of the Local appearances requires it. Information on C. Stires, Post Box Office 1087, Colorado Government Advisory Committee’s Springs, CO 80944, telephone no. (719) Services for Those with Disabilities: For Small Community Advisory inquiry and more detailed information 667–7514, facsimile no. (719) 667–7534, Subcommittee and e-mail: on access or services for individuals [email protected]. AGENCY: Environmental Protection with disabilities, please contact Paula Any person may, within 60 days after Agency. Zampieri at (202) 566–2496 or the issuance of the instant notice by the ACTION: Meeting notice. [email protected]. To request Commission, file pursuant to Rule 214 accommodation of a disability, please of the Commission’s Procedural Rules SUMMARY: Under the Federal Advisory request it 10 days prior to the meeting, (18 CFR 385.214) a motion to intervene Committee Act, the U.S. Environmental to give EPA as much time as possible to or notice of intervention. Any person Protection Agency’s Local Government process your request. filing to intervene or the Commission’s Advisory Committee’s Small Dated: March 29, 2011. Community Advisory Subcommittee is staff may, pursuant to section 157.205 of Paula Zampieri, the Commission’s Regulations under the meeting monthly, via teleconference calls, to discuss EPA regulation, policy, Designated Federal Officer, EPA’s Small NGA (18 CFR 157.205) file a protest to Communities Advisory Subcommittee within the request. If no protest is filed within and the significant environmental issues the Local Government Advisory Committee. that affect small communities and are the time allowed therefore, the proposed [FR Doc. 2011–8017 Filed 4–4–11; 8:45 am] relevant to its scope and charge as set activity shall be deemed to be BILLING CODE 6560–50–P authorized effective the day after the forth by the Administrator of the EPA. time allowed for protest. If a protest is These monthly teleconference meetings filed and not withdrawn within 30 days are an opportunity for Small ENVIRONMENTAL PROTECTION after the time allowed for filing a Community Advisory Subcommittee AGENCY protest, the instant request shall be members to work together and discuss treated as an application for relevant issues, as well as allow an [FRL–9289–9] authorization pursuant to section 7 of opportunity for the public to listen and Notice of a Project Waiver of Section the NGA. comment. 1605 (Buy American Requirement) of Persons who wish to comment only DATES: The meeting dates are: on the environmental review of this 1. April 14, 2011, 2:30 p.m. to 3:30 the American Recovery and project should submit an original and p.m., teleconference meeting. Reinvestment Act of 2009 (ARRA) to two copies of their comments to the 2. May 12, 2011, 2:30 p.m. to 3:30 the Bayonne Municipal Utilities Secretary of the Commission. p.m., teleconference meeting. Authority, Bayonne, NJ Environmental commenter’s will be 3. June 9, 2011, 2:30 p.m. to 3:30 p.m., AGENCY: Environmental Protection placed on the Commission’s teleconference meeting. Agency (EPA). 4. July 14, 2011, 2:30 p.m. to 3:30 environmental mailing list, will receive ACTION: Notice. copies of the environmental documents, p.m., teleconference meeting. and will be notified of meetings ADDRESSES: The Small Community SUMMARY: The EPA is hereby granting a associated with the Commission’s Advisory Subcommittee meetings will project waiver of the Buy American environmental review process. be held by teleconference on the dates requirements of ARRA Section 1605 Environmental commenter’s will not be provided above. The Committee’s under the authority of Section required to serve copies of filed meeting summary will be available after 1605(b)(2) [manufactured goods are not documents on all other parties. the meeting online at: http:// produced in the United States in However, the non-party commentary, www.epa.gov/ocir/scas and can be sufficient and reasonably available will not receive copies of all documents obtained by written request to the DFO. quantities and of a satisfactory quality]

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to the Bayonne Municipal Utilities meet the Authority’s project design and specifications. Accordingly, EPA will Authority, New Jersey (Authority), for performance specifications. evaluate the request as a timely request. the purchase of a foreign manufactured Section 1605 of the ARRA requires The Authority’s wind power project wind turbine generator that meets the that none of the appropriated funds may includes the installation of a 1.5 MW Authority’s design and performance be used for the construction, alteration, wind turbine generator at its existing specifications, which is to be installed maintenance, or repair of a public Oak Street Pumping Station, which is at its existing Oak Street Pumping building or a public works project the main combined and sanitary Station site. This is a project specific unless all of the iron, steel, and pumping station serving all of the City waiver and only applies to the use of the manufactured goods used in the project of Bayonne’s (City) approximate 62,000 specified product for the ARRA project are produced in the United States, or residents. The wind turbine generated being proposed. Any other ARRA unless a waiver is provided to the electricity will drive the Oak Street project that may wish to use the same recipient by the head of the appropriate Pumping Station, which is operational product must apply for a separate agency, here the EPA. A waiver may be 24 hours per day and has an average waiver based on project specific provided under Section 1605(b) of daily dry weather flow of 8 million circumstances. Based upon information ARRA if EPA determines that (1) gallons per day (MGD), and a total submitted by the Authority and its applying these requirements would be capacity of 18 MGD. The wind turbine consulting engineer, EPA has concluded inconsistent with public interest; (2) generator will also be interconnected that there are currently no domestic iron, steel, and the relevant with the nearby East 5th Street storm manufactured wind turbines available manufactured goods are not produced in water relief pumping station, which has in sufficient and reasonable quantity the United States in sufficient and four 150 horsepower (HP) lift pumps and of a satisfactory quality to meet the reasonably available quantities and of a and one 60 HP lift pump that help Authority’s project design and satisfactory quality; or (3) inclusion of prevent localized flooding in a performance specifications, and that a iron, steel, and the relevant residential area of the City. The project waiver is justified. The Regional manufactured goods produced in the was designed for a 1.5 MW domestic Administrator is making this United States will increase the cost of manufactured wind turbine generator determination based on the review and the overall project by more than 25 and will be located on a 22.95 acre recommendations of the State Revolving percent. property owned by the Authority that is situated in a predominantly industrial Fund Program Team. The Assistant EPA has determined that the Administrator of the Office of area. Authority’s waiver request is timely The Authority is requesting a waiver Administration and Resources even though the request was made after Management has concurred on this for the purchase of a Leitwind LTW77 the construction contract was signed. wind turbine, manufactured by Leitner- decision to make an exception to Consistent with the direction of the Section 1605(a) of ARRA. This action Poma, because according to the Office of Management and Budget Authority, there is only one domestic permits the purchase of foreign (OMB) regulations at manufactured wind turbine generator by manufacturer that produces a wind 2 CFR 176.120, EPA has evaluated the turbine generator that meets the project the Authority, as specified in its Authority’s request to determine if the December 15, 2010 waiver request. design and performance specifications. request, though made after the contract However, that domestic manufacturer DATES: Effective Date: April 5, 2011. date, can be treated as if it were timely withdrew from the project on November FOR FURTHER INFORMATION CONTACT: made. EPA will generally regard waiver 6, 2010, on the basis of its own internal Alicia Reinmund-Martı´nez, requests with respect to components siting and setback recommendations Environmental Engineer, (212) 637– that were specified in the bid that could not be met at the project site. 3827, State Revolving Fund Program solicitation or in a general/primary Although the site did not meet the Team, Division of Environmental construction contract as ‘‘late’’ if domestic manufacturer’s setback Planning and Protection, U.S. EPA, 290 submitted after the contract date. requirements, the Authority had worked Broadway, New York, NY 10007. However, in this case, EPA has with the domestic manufacturer’s SUPPLEMENTARY INFORMATION: determined that the Authority’s request engineers to develop other mitigation In accordance with ARRA Sections may be treated as timely because the measures to prevent damage or injury 1605(c) and 1605(b)(2), the EPA hereby need for a waiver was not foreseeable at from shedding ice. These measures provides notice that it is granting a the time the contract was signed. The include, but are not limited to, sensors project waiver of the requirements of Authority submitted this waiver request to detect ice buildup and stop the wind Section 1605(a) of Public Law 111–5, after the contract date because the turbine generator when ice is detected Buy American requirements, to the domestic manufacturer of a 1.5 with manual restart and the Authority for the purchase of a Leitwind megawatt (MW) wind turbine generator repositioning of the turbine blades to LTW 77 wind turbine generator, that met project specifications minimize ice shedding issues. Despite manufactured by Leitner-Poma, that ultimately withdrew from the project. the Authority’s efforts, the domestic meets the Authority’s design and The need for a waiver was not manufacturer was not willing to supply performance specifications to be determined until on or about November their product and ultimately withdrew installed at its existing Oak Street 6, 2010, when the domestic from the project. Pumping Station site. EPA has manufacturer notified the Authority that The Authority examined twenty other evaluated the Authority’s basis for the it was unwilling to provide a 1.5 MW available domestic and foreign wind procurement of a foreign made wind wind turbine generator on the basis that turbine generators and only the turbine generator. Based upon the project site did not meet the Leitwind LTW 77 model meets all information submitted by the Authority manufacturer’s property setback project specifications. Of the other five and its consulting engineer, EPA has requirements as well as other siting domestic manufacturers contacted, concluded that there are currently no requirements. The Authority’s several produce wind turbine generators domestic manufactured wind turbines subsequent research indicated that no that are larger than the 1.5 MW allowed available in sufficient and reasonable other domestic manufactured 1.5 MW by the project specifications. In quantity and of a satisfactory quality to wind turbine generators met project addition, many of the domestic

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machines were much heavier than the one foreign manufacturer, Leitner-Poma, The Administrator’s March 31, 2009, wind turbine generator produced by the will provide a 1.5 MW wind turbine Delegation of Authority Memorandum domestic manufacturer that withdrew generator at the site that can meet provided Regional Administrators with from the project. The use of a heavier project design and performance the authority to issue exceptions to machine would add significantly to specifications. Section 1605 of ARRA within the project expenses and delay the project The purpose of the ARRA is to geographic boundaries of their schedule because a foundation redesign stimulate economic recovery in part by respective regions and with respect to would be required and the foundation funding current infrastructure requests by individual grant recipients. for this project is already under construction, not to delay projects that Having established both a proper basis construction. Lastly, the Authority are already ‘‘shovel ready’’ by requiring to specify the particular good required concluded that none of the domestic entities, such as the Authority, to revise for this project, and that this manufacturers contacted could meet the their design standards and manufactured good was not available City’s zoning law requirement that the specifications and potentially choose a from a producer in the United States, wind turbine generator emit less than more costly, less efficient project. The the Authority is hereby granted a waiver 104 decibels of noise. imposition of ARRA Buy American from the Buy American requirements of The Authority states that only the requirements on such projects otherwise Section 1605(a) of Public Law 111–5 for Leitwind LTW 77 foreign manufactured eligible for State Revolving Fund the purchase of a Leitner-Poma model meets the size and noise assistance would result in unreasonable Leitwind LTW 77 1.5 MW wind turbine requirements for this project. Although delay and potentially the cancellation of generator, as specified in its December the Leitwind LTW 77 does not use the this project as sited. The delay or 15, 2010 waiver request. This same site consideration limitations that cancellation of this construction would supplementary information constitutes are used by the domestic manufacturer directly conflict with the fundamental the detailed written justification that withdrew from the project and economic purpose of ARRA, which is to required by Section 1605(c) for waivers notwithstanding that there are currently create or retain jobs. ‘‘based on a finding under subsection no local, State, or Federal requirements The April 28, 2009, EPA Headquarters (b).’’ regulating the setback distances Memorandum, ‘‘Implementation of Buy associated with the operation of wind American provisions of Public Law Authority: Pub. L. 111–5, Section 1605. turbines, the Authority has indicated 111–5, the ‘American Recovery and Dated: March 10, 2011. that it has taken all necessary Reinvestment Act of 2009’ ’’ Judith A. Enck, precautions to eliminate ice shedding. (Memorandum), defines: reasonably Regional Administrator, Environmental Such mitigation measures include, but available quantity as ‘‘the quantity of Protection Agency, Region 2. are not limited to, the incorporation of iron, steel, or the relevant manufactured [FR Doc. 2011–8018 Filed 4–4–11; 8:45 am] controls with three levels of redundancy good is available or will be available at BILLING CODE 6560–50–P to shut down the turbine during the time needed and place needed, and potential glaze icing events and the in the proper form or specification as restarting of the turbine only after a specified in the project plans and FEDERAL COMMUNICATIONS detailed visual inspection is completed, design,’’ and satisfactory quality as ‘‘the COMMISSION vibration sensors on the blades that quality of iron, steel, or the relevant recognize if the blades are out of balance manufactured good as specified in the [CG Docket No. 11–41; FCC 11–30] due to ice formation, and the project plans and designs.’’ positioning of the shut down turbine to The Region 2 State Revolving Fund Improving Communications Services facilitate ice shedding directly into a Program Team has reviewed this waiver for Native Nations fenced enclosure with posted warning request and has determined that the AGENCY: signs directly below the turbine. supporting documentation provided by Federal Communications Also, the Federal Aviation the Authority establishes both a proper Commission. Administration (FAA) notified the basis to specify the particular good ACTION: Notice. Authority that its study revealed that a required and that the manufactured wind turbine generator on the site good is not available from a producer in SUMMARY: In this document, the would not be a hazard to air navigation, the United States to meet the design Commission seeks comment on a wide provided that the turbine structure is specifications for the proposed project. range of issues concerning how its rules marked and/or lighted, in accordance The information provided is sufficient and policies could be modified to with FAA Advisory Circular 70/7640–1 to meet the criteria listed under Section provide greater economic, market entry, K Change 2. The Authority confirmed 1605(b) of ARRA, OMB regulations at communication adoption opportunities, that the LTW 77 specifications fall 2 CFR 176.60–176.170, and in the EPA and incentives for Native Nations. The within the scope of the FAA’s Headquarters April 28, 2009 Commission also seeks government-to- determination and that the Authority Memorandum: Iron, steel, and the government consultation with Native will mark and/or light the turbine in manufactured goods are not produced in Nations, input from inter-Tribal accordance with FAA requirements. the United States in sufficient and government associations and Native Based on the technical evaluation of reasonably available quantities and of a representative organizations, and input the Authority’s waiver request and satisfactory quality. The basis for this from the public on the best ways to supporting documentation conducted project waiver is the authorization move forward. The Commission is by EPA’s national contractor, the provided in Section 1605(b)(2). Due to committed to ensuring that all Authority’s claim that no domestic the lack of production of this product in Americans have access to emerging manufacturer can produce and site a 1.5 the United States in sufficient and services and technologies, with Native MW wind turbine generator that meets reasonably available quantities and of a Nations being at the forefront of the the project specifications is supported satisfactory quality in order to meet the Commission’s efforts. by the available evidence. In addition, Authority’s technical specifications, a DATES: Comments are due on or before the evaluation of the supporting waiver from the Buy American May 20, 2011, and reply comments due documentation indicates that at least requirement is justified. on or before July 5, 2011.

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ADDRESSES: You may submit comments, FOR FURTHER INFORMATION CONTACT: and written presentations are set forth identified by [CG Docket No. 11–41 and/ Cynthia Bryant, Office of Native Affairs in 47 CFR 1.1206(b). or FCC 11–30], by any of the following and Policy at (202) 418–8164 (voice), People with Disabilities: To request methods: (202) 418–0431 (TTY), or e-mail at materials in accessible formats for • Electronic Filers: Comments may be [email protected]. people with disabilities (Braille, large print, electronic files, audio format), filed electronically using the Internet by SUPPLEMENTARY INFORMATION: This is a send an e-mail to [email protected] or call accessing the Commission’s Electronic summary of the Commission’s the Consumer and Governmental Affairs Comment Filing System (ECFS) http:// Improving Communications Services to Bureau at (202) 418–0530 (voice) or fjallfoss.fcc.gov/ecfs2/ or the Federal Native Nations, Notice of Inquiry (202) 418–0432 (TTY). eRulemaking Portal: http:// (Native Nations NOI), document FCC www.regulations.gov. Filers should 11–30, adopted on March 3, 2011, and Synopsis follow the instructions provided on the released on March 4, 2011, in CG Docket Web site for submitting comments. For The Native Nations NOI seeks No. 11–41. consultation and comment on 11 ECFS filers, in completing the The full text of document FCC 11–30 transmittal screen, filers should include specific categories of communications and copies of any subsequently filed issues affecting Native Nations and their full name, U.S. Postal Service documents in this matter will be mailing address, and the applicable Americans living on Tribal lands—the available for public inspection and lands of federally recognized American docket or rulemaking number, which in copying via ECFS, and during regular Indian Tribes and Alaska Native this instance is CG Docket No. 11–41. business hours at the FCC Reference Villages—as well as Hawaiian Home • Parties may also submit an Information Center, Portals II, 445 12th Lands. The first five sections of the electronic comment by Internet e-mail. Street, SW., Room CY–A257, document seek comment on issues that To get filing instructions, filers should Washington, DC 20554. They may also cut broadly across the many different send an e-mail to [email protected], and be purchased from the Commission’s substantive areas within the include the following words in the body duplicating contractor, Best Copy and Commission’s regulatory mission. With ‘‘ of the message, get form . A sample form and SW., Room CY–B402, Washington, DC issues, the Commission can more directions will be sent in response. 20554, telephone: (800) 378–3160, fax: • effectively work with Native Nations to Paper Filers: Parties who choose to (202) 488–5563, or Internet: http:// break down barriers and find genuine file by paper must file an original and www.bcpiweb.com. Document FCC 11– solutions. For example, the NOI seeks four copies of each filing. Filings can be 30 can also be downloaded in Word or comment on whether a Native Nations sent by hand or messenger delivery, by Portable Document Format (PDF) at: priority, analogous to the one presently commercial overnight courier, or by http://www.fcc.gov or http:// found in the Commission’s rules for first-class or overnight U.S. Postal www.fcc.gov/indians. radio broadcast licensing, should be Service mail. All filings must be Pursuant to 47 CFR 1.415 and 1.419, adopted more broadly to make it easier addressed to the Commission’s interested parties may file comments for Native Nations to provide other Secretary, Office of the Secretary, and reply comments on or before the communications services to their own Federal Communications Commission. dates indicated in the DATES section of communities. • All hand-delivered or messenger- this document. Comments and reply The Native Nations NOI also seeks delivered paper filings for the comments must include a short and comment on the basic tools that Native Commission’s Secretary must be concise summary of the substantive Nations need in order to build delivered to FCC Headquarters at 445 discussion and questions raised in the sustainable business and deployment 12th Street, SW., Room TW–A325, document FCC 11–30. The Commission models to address the significant Washington, DC 20554. All hand further directs all interested parties to communications infrastructure needs, deliveries must be held together with include the name of the filing party and market challenges, and demand rubber bands or fasteners. Any the date of the filing on each page of aggregation requirements specific to envelopes must be disposed of before their comments and reply comments. Tribal lands. Further, recognizing the entering the building. The filing hours The Commission strongly encourages uniqueness of Tribal lands, the are 8 a.m. to 7 p.m. that parties track the organization set document seeks comment on the • Commercial overnight mail (other forth in document FCC 11–30 in order challenges and barriers faced by Native than U.S. Postal Service Express Mail to facilitate its internal review process. Nations in achieving broadband and Priority Mail) must be sent to 9300 Comments and reply comments must adoption and utilization. The Native East Hampton Drive, Capitol Heights, otherwise comply with 47 CFR 1.48 and Nations NOI also seeks comment on MD 20743. U.S. Postal Service first- all other applicable sections of the whether the Commission should adopt class, Express, and Priority mail must be Commission’s rules. a single definition of Tribal lands for all addressed to 445 12th Street, SW., Pursuant to 47 CFR 1.1200 et seq., this communications-related regulation and, Washington, DC 20554. matter shall be treated as a ‘‘permit-but- if so, precisely what that definition In addition, parties must serve one disclose’’ proceeding in accordance with should encompass. The other issues on copy of each pleading with the the Commission’s ex parte rules. which the Native Nations NOI seeks Commission’s duplicating contractor, Persons making oral ex parte comment delve into specific substantive Best Copy and Printing, Inc., 445 12th presentations are reminded that areas of the Commission’s existing rules. Street, SW., Room CY–B402, memoranda summarizing the For example, the Native Nations NOI Washington, DC 20554, or via email to presentations must contain summaries seeks comment on the Universal Service [email protected]. Parties must also of the substance of the presentation and Fund’s eligible telecommunications send a courtesy copy of their filing to not merely a listing of the subjects carrier (ETC) designation process on Rod Flowers, Office of Native Affairs discussed. More than a one or two Tribal lands, including the nature and and Policy, Federal Communications sentence description of the views and extent of those designations and Commission, 445 12th Street, SW., arguments presented is generally requirements for the consultative Room 4–C487, Washington, DC 20554. required. Other rules pertaining to oral process with Native Nations. The Native

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Nations NOI also examines public safety FEDERAL MARITIME COMMISSION violation of section 10(a)(1) of the and interoperability challenges on Shipping Act. Tribal lands, including the widespread [Docket No. 11–04] It also appears that for these same lack of 911 and E–911 services. shipments, Worldwide acted as a Worldwide Logistics Co., Ltd.; common carrier in relation to its The Native Nations NOI also seeks Possible Violations of Sections 10(a)(1) NVOCC customers and issued its own comment on how to improve the and 10(b)(2) of the Shipping Act of NVOCC bill of lading. Worldwide has Commission’s processes and Best 1984; Order of Investigation and maintained an electronic tariff since Practices—pursuant to Section 106 of Hearing September 17, 2004. However, as the National Historic Preservation Act— indicated by Worldwide’s debit notes, for the protection of Native sacred sites Worldwide Logistics Co., Ltd. the rate assessed by Worldwide to its and consultation with Native Nations (Worldwide) is a company based in the NVOCC customers appears to differ and Native Hawaiian Organizations in People’s Republic of China, providing substantially from its published rates. the review of communications tower service as a non-vessel-operating Accordingly, it appears that Worldwide sitings. In addition, the Native Nations common carrier (NVOCC). Worldwide provided service that was not in NOI seeks comment on ways to make registered with the FMC as a foreign- accordance with its published tariff, in based NVOCC in September 2004. satellite-based services available for violation of 10(b)(2) of the Shipping Act. Worldwide’s reported address is 14F– Native Nations, by addressing issues of Now therefore, it is ordered, That 16F Junjiang International Tower, No. pursuant to sections 10, 11, and 13 of cost, equipment, and market-entry 228 Ning Guo Road, Yangpu District, points for Native Nations. the Shipping Act, 46 U.S.C. 41102, Shanghai, PRC 200090. It is a part of the 41104, and 41107–41109, an The Native Nations NOI seeks Worldwide Logistics Group, said to be investigation is instituted to determine: comment on the extent to which one of the leading integrated logistics (1) whether Worldwide Logistics Co., persons with disabilities living on service providers in China.1 Ltd. violated section 10(a)(1) of the Tribal lands experience barriers in using Worldwide currently holds itself out Shipping Act by obtaining communications services and advanced as an NVOCC pursuant to its automated transportation at less than the rates and technologies, and asks how the tariff No. 019194–001. Its tariff is charges otherwise applicable by an Commission can address those barriers. maintained by Distribution unjust or unfair device or means; The Native Nations NOI also asks how Publications, Inc., and is published (2) whether Worldwide Logistics Co., the Commission can best structure a electronically at https:// Ltd. violated section 10(b)(2) of the productive and efficient nation-to- www.dpiusa.com. Worldwide currently Shipping Act by providing service other nation consultation process unique to maintains an NVOCC bond with than at the rates, charges, and the mission of the Commission and the Navigators Insurance Company, 6 classifications set forth in its published needs of Native Nations, recognizing International Drive, Rye Brook, NY NVOCC tariff or applicable NSA; that many consultations with the 10573. (3) whether, in the event violations of It appears that Worldwide originated Federal government are occurring on sections 10(a)(1) or 10(b)(2) of the and substantially participated in an Shipping Act are found, civil penalties many different and inter-related issues ongoing practice of misdescribing cargo should be assessed against Worldwide at any given time. to the transporting ocean common Logistics Co., Ltd. and, if so, the amount Finally, recognizing that the Native carrier since at least April 2008. With of penalties to be assessed; Nations NOI may not cover all of the respect to those shipments apparently (4) whether, in the event violations of communications challenges facing misdescribed, Worldwide was identified sections 10(a)(1) or 10(b)(2) of the Native Nations and their communities, as the shipper signatory to various Shipping Act are found, the tariff(s) of the document invites comment on other service contracts with ocean common Worldwide Logistics Co., Ltd. should be matters involved in the provision of carriers 2 and as the person for whose suspended; and communications services to Native account the transportation was being (5) whether, in the event violations communities that may warrant future provided. Contemporaneous are found, an appropriate cease and Commission action. documentation such as the commercial desist order should be issued. invoice or the NVOCC house bill of It is further ordered, That a public Ordering Clauses lading reflect that shipments declared to hearing be held in this proceeding and the vessel operator as ‘‘fabric’’ or ‘‘cotton that this matter be assigned for hearing Pursuant to sections 1, 2, 4(i), 4(j), fabric’’ actually were loaded with before an Administrative Law Judge of 7(a), 11, 214, 225, 254, 255, 301, 303(c), garments or with other miscellaneous the Commission’s Office of 303(f), 303(g), 303(r), 303(y), 308, 332, finished textile goods. Due to the Administrative Law Judges at a date and 403, 706, and 716 of the difference between the rate Worldwide place to be hereafter determined by the Communications Act of 1934, as paid to ship the misdescribed goods and Administrative Law Judge in amended, 47 U.S.C. 151, 152, 154(i), the rate at which the cargo should have compliance with Rule 61 of the 154(j), 157(a), 161, 214, 225, 254, 255, moved under the various service Commission’s Rules of Practice and 301, 303(c), 303(f), 303(g), 303(r), 303(y), contracts used by Worldwide, it appears Procedure, 46 CFR 502.61. The hearing 308, 332, 404, 706, and 716, and section that Worldwide obtained lower than shall include oral testimony and cross- 106 of the National Historic applicable rates for these shipments, in examination in the discretion of the Preservation Act, 16 U.S.C. 470f, presiding Administrative Law Judge document FCC 11–30 is adopted. 1 http://www.worldwide-logistics.cn/en/ only after consideration has been given Federal Communications Commission. ourservice.aspx?id=8. by the parties and the presiding 2 As relevant herein, these contracts include, but Administrative Law Judge to the use of Bulah P. Wheeler, are not limited to: Evergreen S/C # SC325398, # alternative forms of dispute resolution, Deputy Manager. SC34303, and # SC37000; Hanjin S/C # AEF24208; K Line S/C # 41033; Maersk S/C # 275214; NYK S/ and upon a proper showing that there [FR Doc. 2011–7961 Filed 4–4–11; 8:45 am] C # SC0109828, # SC0114261, and # SC0114580; are genuine issues of material fact that BILLING CODE 6712–01–P and OOCL S/C # PE084981. cannot be resolved on the basis of sworn

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statements, affidavits, depositions, or MATTERS TO BE CONSIDERED: The Federal other state identification number, or other documents or that the nature of Mine Safety and Health Review foreign country equivalent; passport the matters in issue is such that an oral Commission will consider and act upon number; financial account number; or hearing and cross-examination are the following in open session: Secretary credit or debit card number. Comments necessary for the development of an of Labor v. Cumberland Coal Resources, also should not include any sensitive adequate record; LP, Docket No. PENN 2008–189. (Issues health information, such as medical It is further ordered, That Worldwide include whether the judge erred in records or other individually Logistics Co., Ltd. is designated determining that four violations of 30 identifiable health information. In Respondent in this proceeding; CFR 75.380(d)(7)(iv), which requires addition, comments should not include It is further ordered, That the effective escapeway lifelines, were not any ‘‘[t]rade secret or any commercial or Commission’s Bureau of Enforcement is ‘‘significant and substantial.’’) financial information which is obtained designated a party to this proceeding; Any person attending this meeting from any person and which is privileged It is further ordered, That notice of who requires special accessibility or confidential * * * as provided in this Order be published in the Federal features and/or auxiliary aids, such as Section 6(f) of the FTC Act, 15 U.S.C. Register, and a copy be served on parties sign language interpreters, must inform 46(f), and Commission Rule 4.10(a)(2), of record; the Commission in advance of those 16 CFR 4.10(a)(2).’’ Comments It is further ordered, That other needs. Subject to 29 CFR 2706.150(a)(3) containing material for which persons having an interest in and 2706.160(d). confidential treatment is requested must participating in this proceeding may file CONTACT PERSON FOR MORE INFO: Jean be filed in paper form, must be clearly petitions for leave to intervene in Ellen (202) 434–9950/(202) 708–9300 labeled ‘‘Confidential,’’ and must accordance with Rule 72 of the for TDD Relay/1–800–877–8339 for toll comply with FTC Rule 4.9(c), 16 CFR Commission’s Rules of Practice and free. 4.9(c).1 Procedure, 46 CFR 502.72; Because paper mail addressed to the It is further ordered, That all further Emogene Johnson, FTC is subject to delay due to notices, orders, and/or decisions issued Administrative Assistant. heightened security screening, please by or on behalf of the Commission in [FR Doc. 2011–8129 Filed 4–1–11; 11:15 am] consider submitting your comments in this proceeding, including notice of the BILLING CODE 6735–01–P electronic form. Comments filed in time and place of hearing or prehearing electronic form should be submitted by conference, shall be served on parties of using the following weblink: https:// record; FEDERAL TRADE COMMISSION ftcpublic.commentworks.com/ftc/ googlebuzz and following the It is further ordered, That all [File No. 102 3136] documents submitted by any party of instructions on the web-based form. To record in this proceeding shall be Google, Inc.; Analysis of Proposed ensure that the Commission considers directed to the Secretary, Federal Consent Order To Aid Public Comment an electronic comment, you must file it Maritime Commission, Washington, DC on the web-based form at the weblink: 20573, in accordance with Rule 2 of the AGENCY: Federal Trade Commission. https://ftcpublic.commentworks.com/ Commission’s Rules of Practice and ACTION: Proposed Consent Agreement. ftc/googlebuzz. If this Notice appears at Procedure, 46 CFR 502.2 (formerly http://www.regulations.gov/search/ § 502.118), and shall be served on SUMMARY: The consent agreement in this index.jsp, you may also file an parties of record; and matter settles alleged violations of electronic comment through that Web It is further ordered, That in federal law prohibiting unfair or site. The Commission will consider all accordance with Rule 61 of the deceptive acts or practices or unfair comments that regulations.gov forwards Commission’s Rules of Practice and methods of competition. The attached to it. You may also visit the FTC Web Procedure, the initial decision of the Analysis to Aid Public Comment site at http://www.ftc.gov/ to read the Administrative Law Judge shall be describes both the allegations in the Notice and the news release describing issued by March 29, 2012 and the final draft complaint and the terms of the it. decision of the Commission shall be consent order—embodied in the consent A comment filed in paper form issued by July 27, 2012. agreement—that would settle these should include the ‘‘Google, File No. 102 allegations. 3136’’ reference both in the text and on By the Commission. the envelope, and should be mailed or Karen V. Gregory, DATES: Comments must be received on or before May 2, 2011. delivered to the following address: Secretary. ADDRESSES: Federal Trade Commission, Office of the [FR Doc. 2011–7999 Filed 4–4–11; 8:45 am] Interested parties are invited to submit written comments Secretary, Room H–113 (Annex D), 600 BILLING CODE 6730–01–P electronically or in paper form. Pennsylvania Avenue, NW., Comments should refer to ‘‘Google, File Washington, DC 20580. The FTC is No. 102 3136’’ to facilitate the requesting that any comment filed in FEDERAL MINE SAFETY AND HEALTH organization of comments. Please note paper form be sent by courier or REVIEW COMMISSION that your comment—including your overnight service, if possible, because name and your state—will be placed on U.S. postal mail in the Washington area Sunshine Act Notice the public record of this proceeding, and at the Commission is subject to including on the publicly accessible March 30, 2011. 1 FTC Web site, at http://www.ftc.gov/os/ The comment must be accompanied by an TIME AND DATE: explicit request for confidential treatment, 11 a.m., Tuesday, April publiccomments.shtm. 12, 2011. including the factual and legal basis for the request, Because comments will be made and must identify the specific portions of the PLACE: The Richard V. Backley Hearing public, they should not include any comment to be withheld from the public record. Room, 9th Floor, 601 New Jersey The request will be granted or denied by the sensitive personal information, such as Commission’s General Counsel, consistent with Avenue, NW., Washington, DC. an individual’s Social Security Number; applicable law and the public interest. See FTC STATUS: Open. date of birth; driver’s license number or Rule 4.9(c), 16 CFR 4.9(c).

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delay due to heightened security Analysis of Agreement Containing Part I of the proposed order prohibits precautions. Consent Order To Aid Public Comment Google from misrepresenting the The Federal Trade Commission Act privacy and confidentiality of any The Federal Trade Commission has ‘‘ ’’ (‘‘FTC Act’’) and other laws the covered information, as well as the accepted, subject to final approval, a company’s compliance with any Commission administers permit the consent agreement from Google Inc. privacy, security, or other compliance collection of public comments to (‘‘Google’’). program, including but not limited to consider and use in this proceeding as The proposed consent order has been the U.S.-EU Safe Harbor Framework. appropriate. The Commission will placed on the public record for thirty ‘‘Covered information’’ is defined consider all timely and responsive (30) days for receipt of comments by broadly to include an individual’s: (a) public comments that it receives, interested persons. Comments received First and last name; (b) home or other whether filed in paper or electronic during this period will become part of physical address, including street name form. Comments received will be the public record. After thirty (30) days, and city or town; (c) email address or available to the public on the FTC Web the Commission will again review the other online contact information, such site, to the extent practicable, at agreement and the comments received, as a user identifier or screen name; (d) http://www.ftc.gov/os/ and will decide whether it should persistent identifier, such as IP address; publiccomments.shtm. As a matter of withdraw from the agreement and take (e) telephone number, including home discretion, the Commission makes every appropriate action or make final the telephone number and mobile telephone effort to remove home contact agreement’s proposed order. number; (f) list of contacts; (g) physical information for individuals from the On February 9, 2010, Google launched location; or any other information from public comments it receives before a social networking service called or about an individual consumer that is placing those comments on the FTC Google Buzz (‘‘Google Buzz’’ or ‘‘Buzz’’) combined with (a) through (g) above. Web site. More information, including within Gmail, its web-based email Part II of the proposed order requires Google to give Google users a clear and routine uses permitted by the Privacy product. Google Buzz is a platform that prominent notice and to obtain express Act, may be found in the FTC’s privacy allows users to share updates, affirmative consent prior to sharing the policy, at http://www.ftc.gov/ftc/ comments, photos, videos, and other ‘‘ ’’ Google user’s information with any privacy.shtm. information through posts or buzzes made either publicly or privately to third party in connection with a change, FOR FURTHER INFORMATION CONTACT: individuals or groups of users. Google addition or enhancement to any product Kathryn Ratte (202–326–3514), FTC used the information of consumers who or service, where such sharing is contrary to stated sharing practices in Bureau of Consumer Protection, 600 signed up for Gmail, including first and effect at the time the Google user’s Pennsylvania Avenue, NW., last name and email contacts, to information was collected. This Washington, DC 20580. populate the social network, which, in many instances, resulted in certain provision is limited to users of Google’s SUPPLEMENTARY INFORMATION: Pursuant previously private information being products and services whom Google has to section 6(f) of the Federal Trade made public. identified at the time it shares their information with third parties, for Commission Act, 38 Stat. 721, 15 U.S.C. The Commission’s complaint alleges example, users who are logged into a 46(f), and § 2.34 of the Commission that Google violated Section 5(a) of the Google product. Rules of Practice, 16 CFR 2.34, notice is FTC Act by falsely representing to users hereby given that the above-captioned Part III of the proposed order requires signing up for Gmail that it would use Google to establish and maintain a consent agreement containing a consent their information only for the purpose of comprehensive privacy program that is order to cease and desist, having been providing them with web-based email. reasonably designed to: (1) Address filed with and accepted, subject to final The complaint also alleges that Google privacy risks related to the development approval, by the Commission, has been falsely represented to consumers that it and management of new and existing placed on the public record for a period would seek their consent before using products and services, and (2) protect of thirty (30) days. The following their information for a purpose other the privacy and confidentiality of Analysis to Aid Public Comment than that for which it was collected. The covered information. The privacy describes the terms of the consent complaint further alleges that Google program must be documented in writing agreement, and the allegations in the deceived consumers about their ability and must contain privacy controls and complaint. An electronic copy of the to decline enrollment in certain features procedures appropriate to Google’s size full text of the consent agreement of Buzz. In addition, the complaint and complexity, the nature and scope of package can be obtained from the FTC alleges that Google failed to disclose its activities, and the sensitivity of Home Page (for March 30, 2010), on the adequately that certain information covered information. Specifically, the World Wide Web, at http://www.ftc.gov/ would become public by default order requires Google to: through the Buzz product. Finally, the os/actions.shtm. A paper copy can be • Designate an employee or complaint alleges that Google obtained from the FTC Public Reference employees to coordinate and be misrepresented its compliance with the Room, Room 130–H, 600 Pennsylvania responsible for the privacy program; U.S.-EU Safe Harbor Framework, a • Avenue, NW., Washington, DC 20580, Identify reasonably-foreseeable, mechanism by which U.S. companies material risks, both internal and either in person or by calling (202) 326– may transfer data from the European 2222. external, that could result in the Union to the United States consistent unauthorized collection, use, or Public comments are invited, and may with European law. disclosure of covered information and be filed with the Commission in either The proposed order contains assess the sufficiency of any safeguards paper or electronic form. All comments provisions designed to prevent Google in place to control these risks; should be filed as prescribed in the from engaging in the future in practices • Design and implement reasonable ADDRESSES section above, and must be similar to those alleged in the complaint privacy controls and procedures to received on or before the date specified with respect to all Google products and control the risks identified through the in the DATES section. services, not only Gmail or Buzz. privacy risk assessment and regularly

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test or monitor the effectiveness of the order. Part VII ensures notification to requirement) from engaging in any ‘‘new safeguards’ key controls and procedures; the FTC of changes in corporate status. or additional sharing’’ of previously • Develop and use reasonable steps to Part VIII mandates that Google submit collected personal information ‘‘with select and retain service providers an initial compliance report to the FTC any third party’’ that results from ‘‘any capable of appropriately protecting the and make available to the FTC change, addition, or enhancement’’ to privacy of covered information they subsequent reports. Part IX is a any Google product or service. First, receive from respondent, and require provision ‘‘sunsetting’’ the order after Google did not represent in its general service providers by contract to twenty (20) years, with certain ‘‘Privacy Policy’’ (or otherwise, implement and maintain appropriate exceptions. according to the Complaint) that the privacy protections; and The purpose of the analysis is to aid ‘‘consent’’ it would seek would require • Evaluate and adjust its privacy public comment on the proposed order. consumers to ‘‘opt in’’ as required by program in light of the results of the It is not intended to constitute an Part II. Indeed, the Complaint does not testing and monitoring, any material official interpretation of the proposed allege that Google ever asked consumers changes to its operations or business order or to modify its terms in any way. to signify their ‘‘consent’’ by ‘‘opting in’’ arrangements, or any other By direction of the Commission. (as opposed to ‘‘opting out’’). To be sure, circumstances that it knows or has insofar as Google did not seek ‘‘consent’’ Donald S. Clark, reason to know may have a material at all, its representation in its general impact on the effectiveness of its Secretary. ‘‘Privacy Policy’’ was deceptive in privacy program. Concurring Statement of Commissioner violation of Section 5. But the ‘‘opt in’’ Part IV of the proposed order requires J. Thomas Rosch requirement in Part II is seemingly that Google obtain within 180 days, and brand new. It does not echo what I concur in accepting, subject to final on a biennial basis thereafter for twenty Google promised to do at the outset. In approval, a consent agreement from (20) years, an assessment and report the separate Statement that I issued Google Inc. (‘‘Google) for public from a qualified, objective, independent when the staff issued its preliminary comment. However, it should be third-party professional, certifying, Privacy Report, I expressed concern emphasized that this consent agreement among other things, that: it has in place about whether an ‘‘opt in’’ requirement is being accepted, subject to final a privacy program that provides in these circumstances might sometimes approval. I have substantial reservations protections that meet or exceed the be contrary to the public interest. Then, about Part II of the consent agreement. protections required by Part III of the as now, I was concerned that it might be proposed order; and its privacy controls My concerns are threefold. Before I used as leverage in consent negotiations are operating with sufficient describe them, however, I want to make with other competitors. effectiveness to provide reasonable clear that I do not mean to defend Second, Part II of the proposed assurance that the privacy of covered Google. Google can—and should—speak consent order applies whenever Google information is protected. for itself. However, I believe that, as a engages in any ‘‘new or additional Parts V through IX of the proposed Commission, we must always be sharing’’ of previously collected order are reporting and compliance concerned that a consent agreement, personal information ‘‘with any third provisions. Part V requires that Google like a litigated decree, is consistent with party’’ for the next twenty years, not just retain all ‘‘widely disseminated the public interest. For that reason, I am any ‘‘material’’ new or additional sharing statements that describe the extent to opposed to accepting consent of that information. Because internet which respondent maintains and agreements that may be contrary to the business models (and technology) protects the privacy and confidentiality public interest because a party is willing change so rapidly, Google (and its of any covered information, along with to agree to terms that hurt other competitors) are bound to engage in all materials relied upon in making or competitors as much or more than the ‘‘new or additional’’ sharing of disseminating such statements, for a terms will hurt that party. That may previously collected information with period of three (3) years. Part V further occur, for example, when a consent third parties during that period. That requires Google to retain, for a period of agreement is used as ‘‘leverage in means that Part II is certain to apply six (6) months from the date received, dealing with the practices of other (and with some frequency) during that all consumer complaints directed at competitors.’’ Part II of the proposed period as long as Google does not warn Google, or forwarded to Google by a consent order may be susceptible to this users or consumers in its ‘‘general third party, that allege unauthorized happening. Privacy Policy’’ that it may engage in collection, use, or disclosure of covered More specifically, the crux of the such sharing in the future. information and any responses to such violation alleged in the Complaint is Third, Part II applies not just to complaints. Part V also requires Google that Google represented in its general Google’s social networking services or to retain for a period of five (5) years ‘‘Privacy Policy’’ that ‘‘When you sign up products, but to every single Google from the date received, documents that for a particular service that requires service or product that undergoes some contradict, qualify, or call into question registration, we ask you to provide ‘‘change, addition, or enhancement’’ its compliance with the proposed order. personal information. If we use this (terms that are not defined in Part II) Finally, Part V requires that Google information in a manner different from that results from the sharing of certain retain all materials relied upon to the purpose for which it was collected, information. As a practical matter, this prepare the third-party assessments for then we will ask for your consent prior means that Google is at risk that Part II a period of three (3) years after the date to such use. However, when Google will apply across the board to every that each assessment is prepared. initiated its social networking service existing product or service that Google Part VI requires dissemination of the (‘‘Google Buzz’’) it used personal offers, including any product or service order now and in the future to information previously collected for that involves the tracking and sharing of principals, officers, directors, and other purposes without asking for users’ identified Google users’ browsing managers, and to all current and future consent prior to this use. Part II of the behavior. employees, agents, and representatives proposed consent order prohibits In short, on the face of it, Part II seems having supervisory responsibilities Google, without prior ‘‘express to be contrary to Google’s self-interest. relating to the subject matter of the affirmative consent’’ (an ‘‘opt-in’’ I therefore ask myself if Google willingly

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agreed to it, and if so, why it did so. In compliance with the requirement Abstract: The Office of the Assistant Surely it did not do so simply to save of section 3506(c)(2)(A) of the Secretary for Planning and Evaluation itself litigation expense. But did it do so Paperwork Reduction Act of 1995, the (ASPE) is requesting Office of because it was being challenged by Office of the Secretary (OS), Department Management and Budget (OMB) other government agencies and it of Health and Human Services, is approval on a new data collection, wanted to ‘‘get the Commission off its publishing the following summary of a consisting of a survey of a national back’’? Or did it do so in hopes that Part proposed information collection request sample of health insurers to learn about II would be used as leverage in future for public comment. Interested persons the effects of various recent insurance government challenges to the practices are invited to send comments regarding market reforms from the Affordable Care of its competitors? In my judgment, this burden estimate or any other aspect Act (ACA) on premiums and coverage neither of the latter explanations is of this collection of information, for certain benefits. ASPE will use the consistent with the public interest. including any of the following subjects: results of this survey in conjunction Nor am I comforted that the purpose (1) The necessity and utility of the with other data sources to build a more and effect of Part II may be to ‘‘fence in’’ proposed information collection for the complete picture of the effects of the Google. I am aware of the teaching of proper performance of the agency’s Jacob Siegel Co. v. FTC, 327 U.S. 608 functions; (2) the accuracy of the insurance market reforms that went into (1946) that a ‘‘fencing in’’ order may estimated burden; (3) ways to enhance effect in September of 2010. The survey cover legal conduct as long as that the quality, utility, and clarity of the instrument will be a one-time, self- conduct is ‘‘reasonably related’’ to the information to be collected; and (4) the administered web survey sent to eight of violation. Even if Part II may be use of automated collection techniques the 12 largest insurers in each state plus considered to cover conduct that is or other forms of information the District of Columbia based on total ‘‘reasonably related’’ to the violation technology to minimize the information 2009 comprehensive major medical here, any consent order, whether collection burden. premiums, yielding a targeted sample of litigated or negotiated, must be To obtain copies of the supporting 408 health insurers. Each health insurer consistent with the public interest. I statement and any related forms for the will be asked to provide self-reported look forward to public comment about proposed paperwork collections data on the percentage of covered lives whether Part II of the proposed consent referenced above, e-mail your request, with coverage for various benefits before order meets that requirement. including your address, phone number, and after the insurance market reforms [FR Doc. 2011–7963 Filed 4–4–11; 8:45 am] OMB number, and OS document went into effect, any effect of these BILLING CODE 6750–01–P identifier, to reforms on premiums, and coverage for [email protected], or call select other benefits under the Reports Clearance Office on (202) consideration for the essential benefits DEPARTMENT OF HEALTH AND 690–6162. Written comments and package. The survey design and content HUMAN SERVICES recommendations for the proposed have been reviewed by both the ASPE information collections must be directed [Document Identifier OS–0990–New; 60-day project officer and other ASPE to the OS Paperwork Clearance Officer Notice] personnel, and by several former and at the above email address within 60 current chief actuaries at health Agency Information Collection days. Proposed Project: Effects of Insurance insurers. Data collection activities will Request; 60-Day Public Comment be completed within 60 days (two Request Market Reforms—OMB No. 0990–NEW– Office of the Assistant Secretary for months) of OMB Clearance. AGENCY: Office of the Secretary, HHS. Planning and Evaluation (ASPE).

ESTIMATED ANNUALIZED BURDEN TABLE

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

Self-administered web survey...... Chief Actuary at health insurance 408 1 45/60 306 companies.

Mary Forbes, DEPARTMENT OF HEALTH AND SUMMARY: 42 U.S.C. 299c establishes a Office of the Secretary, Paperwork Reduction HUMAN SERVICES National Advisory Council for Act Reports Clearance Officer. Healthcare Research and Quality (the [FR Doc. 2011–8034 Filed 4–4–11; 8:45 am] Agency for Healthcare Research and Council). The Council is to advise the Quality BILLING CODE 4150–05–P Secretary of HHS (Secretary) and the Director of the Agency for Healthcare National Advisory Council for Research and Quality (AHRQ) on Healthcare Research and Quality: matters related to activities of the Request for Nominations for Public Agency to improve the quality, safety, Members efficiency, and effectiveness of health care for all Americans. AGENCY: Agency for Healthcare Research and Quality (AHRQ), HHS. Seven current members’ terms will expire in November 2011. To fill these ACTION: Notice of request for positions, we are seeking individuals nominations for public members. who are distinguished: (1) In the

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conduct of research, demonstration nominee’s resume or curriculum vitae; Contact Person for More Information: projects, and evaluations with respect to and (2) a statement that the nominee is Brenda Colley Gilbert, PhD, M.P.H., Director, health care; (2) in the fields of health willing to serve as a member of the Extramural Research Program Office, care quality research or health care Council. Selected candidates will be National Center for Chronic Disease Prevention and Developmental Disabilities, improvement; (3) in the practice of asked to provide detailed information CDC, 1600 Clifton Road, NE., Mailstop K92, medicine; (4) in other health concerning their financial interests, Atlanta, Georgia 30333, Telephone: (770) professions; (5) in representing the consultant positions and research grants 488–6295. private health care sector (including and contracts, to permit evaluation of The Director, Management Analysis and health plans, providers, and purchasers) possible sources of conflict of interest. Services Office, has been delegated the or administrators of health care delivery Please note that Federally registered authority to sign Federal Register notices systems; (6) in the fields of health care lobbyists are not permitted to serve on pertaining to announcements of meetings and economics, information systems, law, this advisory board. Please note that other committee management activities, for ethics, business, or public policy; and, once you are nominated, AHRQ may both the Centers for Disease Control and Prevention and the Agency for Toxic (7) in representing the interests of consider your nomination for future Substances and Disease Registry. patients and consumers of health care. positions on the Council. 42 U.S.C. 299c(c)(2). Individuals are The Department seeks a broad Dated: March 29, 2011. particularly sought with experience and geographic representation. In addition, Elaine L. Baker, success in activities specified in the AHRQ conducts and supports research Director, Management Analysis and Services summary above. concerning priority populations, which Office, Centers for Disease Control and Prevention. DATES: Nominations should be received include: low-income groups; minority on or before 60 days after date of groups; women; children; the elderly; [FR Doc. 2011–8071 Filed 4–4–11; 8:45 am] publication. and individuals with special health care BILLING CODE 4163–18–P needs, including individuals with ADDRESSES: Nominations should be sent disabilities and individuals who need to Ms. Karen Brooks, AHRQ, 540 chronic care or end-of-life health care. DEPARTMENT OF HEALTH AND Gaither Road, Room 3006, Rockville, See 42 U.S.C. 299(c). Nominations with HUMAN SERVICES Maryland 20850. Nominations may also expertise in health care for these Centers for Medicare & Medicaid be e-mailed to priority populations are encouraged. [email protected]. Services Dated: March 24, 2011. FOR FURTHER INFORMATION CONTACT: [CMS–9996–N] Ms. Carolyn M. Clancy, Karen Brooks, AHRQ, at (301) 427– Director. 1801. Early Retiree Reinsurance Program [FR Doc. 2011–8023 Filed 4–4–11; 8:45 am] AGENCY SUPPLEMENTARY INFORMATION: 42 U.S.C. BILLING CODE 4160–90–M : Centers for Medicare & 299c provides that the Secretary shall Medicaid Services (CMS), HHS. appoint to the National Advisory ACTION: Notice. Council for Healthcare Research and DEPARTMENT OF HEALTH AND Quality twenty one appropriately HUMAN SERVICES SUMMARY: This notice announces that qualified individuals. At least seventeen CMS is exercising its authority under members shall be representatives of the Centers for Disease Control and section 1102(f) of the Affordable Care public and at least one member shall be Prevention Act to stop accepting applications for a specialist in the rural aspects of one the Early Retiree Reinsurance Program, or more of the professions or fields Disease, Disability, and Injury due to the availability of funds, as of listed in the above summary. In Prevention and Control Special May 5, 2011. addition, the Secretary designates, as ex Emphasis Panel (SEP): Initial Review DATES: Effective Date: This notice is officio members, representatives from The meeting announced below effective March 31, 2011. other Federal agencies, principally concerns Epidemiologic Research and FOR FURTHER INFORMATION CONTACT: agencies that conduct or support health Surveillance in Epilepsy, Funding David Mlawsky, (410) 786–6851. care research, as well as Federal officials Opportunity Announcement (FOA) SUPPLEMENTARY INFORMATION: the Secretary may consider appropriate. DP11–003, initial review. I. Background 42 U.S.C. 299c(c)(3). The Council meets In accordance with Section 10(a)(2) of in the Washington, DC, metropolitan the Federal Advisory Committee Act The Patient Protection and Affordable area, generally in Rockville, Maryland, (Pub. L. 92–463), the Centers for Disease Care Act (Pub. L. 111–148, enacted on approximately three times a year to Control and Prevention (CDC) March 23, 2010) (the Affordable Care provide broad guidance to the Secretary announces the aforementioned meeting: Act), included a provision that and AHRQ’s Director on the direction of establishes the temporary Early Retiree Time and Date: 11 a.m.–5 p.m., May 11, and programs undertaken by AHRQ. 2011 (Closed). Reinsurance Program (ERRP), which Seven individuals will be selected Place: Teleconference. provides reimbursement to eligible presently by the Secretary to serve on Status: The meeting will be closed to the sponsors of employment-based plans for the Council beginning with the meeting public in accordance with provisions set a portion of the costs of providing in the spring of 2012. Members forth in Section 552b(c)(4) and (6), Title 5 health coverage to early retirees (and generally serve 3-year terms. U.S.C., and the Determination of the Director, eligible spouses, surviving spouses, and Appointments are staggered to permit Management Analysis and Services Office, dependents of such retirees). Section an orderly rotation of membership. CDC, pursuant to Public Law 92–463. 1102(a)(1) of the Affordable Care Act, Matters to be Discussed: The meeting will Interested persons may nominate one include the initial review, discussion, and which is codified at 42 U.S.C. or more qualified persons for evaluation of applications received in 18002(a)(1), requires the Secretary to membership on the Council. Self- response to ‘‘Epidemiologic Research and establish the program within 90 days of nominations are accepted. Nominations Surveillance in Epilepsy FOA DP11–003, enactment of the law (by June 21, 2010). shall include: (1) A copy of the initial review.’’ On May 5, 2010, we published an

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interim final regulation with comment of ERRP funding change, we may decide Ave., Silver Spring, MD 20993–0002, e- period in the Federal Register (75 FR it is appropriate to resume accepting mail: [email protected], or 24450), implementing the program as of ERRP applications. If this occurs, we Fax: 301–595–7937. June 1, 2010. Section 1102(e) of the will provide such notice in the Federal Registration and Requests for Oral Affordable Care Act appropriates Register. Presentations: Send registration funding of $5 billion for the temporary information (including name, title, firm III. Collection of Information program, which ends no later than name, address, telephone, and fax Requirements January 1, 2014. To participate in the number), written material, and requests program, an employment-based plan This document does not impose to make oral presentations, to the must submit an application to the information collection and contact person by April 22, 2011. Secretary. A copy of the application can recordkeeping requirements. So, it need If you need special accommodations be found at http://www.errp.gov. Section not be reviewed by the Office of due to a disability, please contact 1102(f) of the Affordable Care Act grants Management and Budget under the Kimberly Franklin (see Contact Person) the Secretary the authority to stop authority of the Paperwork Reduction at least 7 days in advance. taking applications for participation in Act of 1995. Interested persons may present data, the program based on the availability of Authority: 42 U.S.C. 18002(f). information, or views orally or in funding under section 1102(e) of the writing, on issues pending at the public Dated: March 29, 2011. Affordable Care Act. The ERRP interim meeting. Time allotted for oral final regulation also grants the Secretary Donald M. Berwick, presentations may be limited to 10 such authority (75 FR 24456). Administrator, Centers for Medicare & minutes. Those desiring to make oral Medicaid Services. II. Provisions of the Notice presentations should notify the contact [FR Doc. 2011–7934 Filed 3–31–11; 4:15 pm] person by April 22, 2011, and submit a Based on the amount of the $5 billion BILLING CODE 4120–01–P brief statement of the general nature of in appropriated program funding that the evidence or arguments they wish to remains available and the rate at which present, the names and addresses, it is being disbursed, we are DEPARTMENT OF HEALTH AND telephone number, fax, and e-mail of announcing, under section 1102(f) of the HUMAN SERVICES proposed participants, and an Affordable Care Act, that we will no Food and Drug Administration indication of the approximate time longer accept applications for the requested to make their presentation. program after May 5, 2011. We have [Docket No. FDA–2011–N–0002] Transcripts: Please be advised that as projected the availability of program soon as a transcript is available, it will funding based on the rate at which Preparation for International be accessible at http:// appropriated funds are currently being Cooperation on Cosmetics www.regulations.gov. It may be viewed used to reimburse plan sponsors, and Regulations; Public Meeting at the Division of Dockets Management we have concluded that we have (HFA–305), Food and Drug approved a sufficient number of AGENCY: Food and Drug Administration, Administration, 5630 Fishers Lane, rm. applications to exhaust the program HHS. 1061, Rockville, MD. A transcript will funding. Applications were first ACTION: Notice of public meeting. also be available in either hardcopy or accepted by the ERRP on June 29, 2010, and therefore, plan sponsors have so far SUMMARY: The Food and Drug on CD–ROM, after submission of a had 9 months to submit applications if Administration (FDA) is announcing a Freedom of Information request. Written desired. As a result of this agency public meeting entitled ‘‘International requests are to be sent to Division of action, any program applications that Cooperation on Cosmetics Regulations Freedom of Information, 12420 CMS receives after May 5, 2011 will not (ICCR)—Preparation for ICCR–5 Meeting Parklawn Dr., Rockville, MD 20857. be accepted for processing. Applications in Paris, France’’ to provide information SUPPLEMENTARY INFORMATION: The must be received in the program’s Intake and receive comments on the purpose of the multilateral framework Center on or before May 5, 2011, to be International Cooperation on Cosmetics on the ICCR is to pave the way for the accepted for processing. A copy of the Regulations (ICCR) as well as the removal of regulatory obstacles to application, as well as information on upcoming meetings in Paris, France. international trade while maintaining how to complete and send it, and where The topics to be discussed are the topics global consumer protection. to send it, can be found on http:// for discussion at the forthcoming ICCR ICCR is a voluntary international www.errp.gov. Merely postmarking an Steering Committee meeting. The group of cosmetics regulatory application before this date will not be purpose of the meeting is to solicit authorities from the United States, sufficient. We will post additional public input prior to the next steering Japan, the European Union, and Canada. information about the mechanics of not committee and expert working group These regulatory authority members accepting such applications for meetings in Paris, France scheduled on will enter into constructive dialogue processing, such as how we will June 28 through July 1, 2011. with their relevant cosmetics’ industry respond upon receiving such an DATES: Date and Time: The public trade associations. Currently, the ICCR application, on http://www.errp.gov. meeting will be held on April 26, 2011, members are Health Canada; the We note that our decision to no longer from 2 p.m. to 4 p.m. European Directorate General for accept applications after May 5, 2011, is Location: The public meeting will be Enterprise and Industry; the Ministry of based on the actual availability of held at the Washington Theater room at Health, Labor and Welfare of Japan; and remaining appropriated ERRP funds and the Hilton Washington DC/Rockville the U.S. Food and Drug Administration. the rate at which we have been Hotel & Executive Meeting Center, 1750 All decisions made by the consensus disbursing reimbursement, as opposed Rockville Pike, Rockville, MD 20852. will be compatible with the laws, to the projected amounts of ERRP Contact Person: All participants must policies, rules, regulations, and reimbursements that applicants listed in register with Kimberly Franklin, Office directives of the respective their ERRP applications. Should of the Commissioner, Food and Drug administrations and governments. circumstances related to the availability Administration, 10903 New Hampshire Members will implement and/or

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promote actions or documents within which must be a government-issued the public will be scheduled between their own jurisdictions and seek photo identification such as a Federal approximately 4:15 p.m. and 5:15 p.m. convergence of regulatory policies and employee badge, driver’s license, Those individuals interested in making practices. Successful implementation passport, green card, etc. Detailed formal oral presentations should notify will require input from stakeholders. information about security procedures is the contact person and submit a brief The agenda for the public meeting located at http://www.nih.gov/about/ statement of the general nature of the will be made available on the Internet visitorsecurity.htm. Due to the limited evidence or arguments they wish to at http://www.fda.gov/Cosmetics/ available parking, visitors are present, the names and addresses of InternationalActivities/Conferences encouraged to use public transportation. proposed participants, and an Contact Person: Gail Dapolito or MeetingsWorkshops/International indication of the approximate time Sheryl Clark (HFM–71), Center for CooperationonCosmeticsRegulations requested to make their presentation on ICCR/default.htm. Biologics Evaluation and Research, Food and Drug Administration, 1401 or before May 16, 2011. Time allotted Dated: March 30, 2011. Rockville Pike, Rockville, MD 20852, for each presentation may be limited. If Leslie Kux, 301–827–0314, or FDA Advisory the number of registrants requesting to Acting Assistant Commissioner for Policy. Committee Information Line, 1–800– speak is greater than can be reasonably [FR Doc. 2011–7966 Filed 4–4–11; 8:45 am] 741–8138 (301–443–0572 in the accommodated during the scheduled BILLING CODE 4160–01–P Washington, DC area), and follow the open public hearing session, FDA may prompts to the desired center or product conduct a lottery to determine the area. Please call the Information Line for speakers for the scheduled open public DEPARTMENT OF HEALTH AND up-to-date information on this meeting. hearing session. The contact person will HUMAN SERVICES A notice in the Federal Register about notify interested persons regarding their last minute modifications that impact a request to speak by May 17, 2011. Food and Drug Administration previously announced advisory Closed Committee Deliberations: On committee meeting cannot always be [Docket No. FDA–2011–N–0002] May 31, 2011, from 5:15 p.m. to 6:15 published quickly enough to provide Cellular, Tissue, and Gene Therapies timely notice. Therefore, you should p.m., the meeting will be closed to Advisory Committee; Notice of Meeting always check the Agency’s Web site and permit discussion where disclosure call the appropriate advisory committee would constitute a clearly unwarranted AGENCY: Food and Drug Administration, hot line/phone line to learn about invasion of personal privacy (5 U.S.C. HHS. possible modifications before coming to 552b(c)(6)). The committee will discuss ACTION: Notice. the meeting. a report of intramural research programs Agenda: On May 31, 2011, the and make recommendations regarding This notice announces a forthcoming committee will meet in open session to personnel staffing decisions. meeting of a public advisory committee hear brief overviews of research Persons attending FDA’s advisory of the Food and Drug Administration programs in the Laboratory of (FDA). At least one portion of the committee meetings are advised that the Biochemistry, Division of Therapeutic Agency is not responsible for providing meeting will be closed to the public. Proteins, Center for Drug Evaluation and access to electrical outlets. Name of Committee: Cellular, Tissue, Research; and the Laboratory of Cell and Gene Therapies Advisory Biology, the Laboratory of Molecular FDA welcomes the attendance of the Committee. and Developmental Immunology, the public at its advisory committee General Function of the Committee: Laboratory of Molecular Oncology, meetings and will make every effort to To provide advice and Division of Monoclonal Antibodies, accommodate persons with physical recommendations to the Agency on Center for Drug Evaluation and disabilities or special needs. If you FDA’s regulatory issues. Research. require special accommodations due to Date and Time: The meeting will be FDA intends to make background a disability, please contact Gail Dapolito held on May 31, 2011, from 2:30 p.m. material available to the public no later at least 7 days in advance of the to 6:15 p.m. than 2 business days before the meeting. meeting. Location: National Institutes of Health If FDA is unable to post the background (NIH) Campus, 29 Lincoln Dr., Bldg. material on its Web site prior to the FDA is committed to the orderly 29B, Conference Rooms A and B, meeting, the background material will conduct of its advisory committee Bethesda, MD 20892. be made publicly available at the meetings. Please visit our Web site at The public is welcome to attend the location of the advisory committee http://www.fda.gov/ meeting at NIH, Building 29B, meeting, and the background material AdvisoryCommittees/ Conference Rooms A and B, where a will be posted on FDA’s Web site after AboutAdvisoryCommittees/ speakerphone will be provided. Public the meeting. Background material is ucm111462.htm for procedures on participation in the meeting is limited to available at http://www.fda.gov/ public conduct during advisory the use of the speakerphone in the AdvisoryCommittees/Calendar/ committee meetings. conference room. Important information default.htm. Scroll down to the Notice of this meeting is given under about transportation and directions to appropriate advisory committee link. the Federal Advisory Committee Act (5 the NIH campus, parking, and security Procedure: On May 31, 2011, from U.S.C. app. 2). procedures is available on the Internet 2:30 p.m. to approximately 5:15 p.m., at http://www.nih.gov/about/visitor/ the meeting is open to the public. Dated: March 30, 2011. index.htm. (FDA has verified the Web Interested persons may present data, Leslie Kux, site address, but FDA is not responsible information, or views, orally or in Acting Assistant Commissioner for Policy. for any subsequent changes to the Web writing, on issues pending before the [FR Doc. 2011–7968 Filed 4–4–11; 8:45 am] site after this document publishes in the committee. Written submissions may be BILLING CODE 4160–01–P Federal Register.) Visitors must show made to the contact person on or before two forms of identification, one of May 24, 2011. Oral presentations from

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DEPARTMENT OF HEALTH AND applicable, the business or professional US–04], filed October 14, 2009, which HUMAN SERVICES affiliation of the interested person. Oral published as US–2010–010506 on April comments will begin at approximately 4 p.m. 29, 2010 entitled ‘‘Device for External National Institutes of Health on Friday, May 13, 2011. Anyone who Movement Manipulation of Nucleic wishes to attend the meeting and/or submit comments to the committee is asked to RSVP Acids and/or Proteins;’’ U.S. Provisional National Institute of Environmental Patent Application No. 61/206,458 Health Sciences; Notice of Meeting via the following e-mail: [email protected]. All comments are [HHS Ref. No. E–130–2006/0–US–01] Pursuant to section 10(a) of the delivered to the Contact Person listed on this filed January 30, 2009, entitled, Federal Advisory Committee Act, as notice. ‘‘Amplification Platform and Methods of amended (5 U.S.C. Appendix 2), notice (Catalogue of Federal Domestic Assistance Use Thereof, now expired, and PCT is hereby given of a meeting of the Program Nos. 93.115, Biometry and Risk Patent Application No. PCT/US10/ Interagency Breast Cancer and Estimation Health Risks from Environmental 022586 [HHS Ref. No. E–130–2006/0– Environmental Research Coordinating Exposures; 93.142, NIEHS Hazardous Waste PCT–02] filed January 29, 2010 and Worker Health and Safety Training; 93.143, Committee. which published as WO 2010/088517 NIEHS Superfund Hazardous Substances— on August 5, 2010, entitled, ‘‘Methods The meeting will be open to the Basic Research and Education; 93.894, public, with attendance limited to space Resources and Manpower Development in and Systems for Purifying, Transferring available. Individuals who plan to the Environmental Health Sciences; 93.113, and/or Manipulating Nucleic Acids;’’ attend and need special assistance, such Biological Response to Environmental Health and all continuing applications and as sign language interpretation or other Hazards; 93.114, Applied Toxicological foreign counterparts to 2–D Bio, LLC, reasonable accommodations, should Research and Testing, National Institutes of having a place of business in inform the Contact Person listed below Health, HHS) Gaithersburg, Maryland. The patent at least 10 days in advance of the Dated: March 28, 2011. rights in these inventions have been meeting. Jennifer S. Spaeth, assigned to the United States of Name of Committee: Interagency Breast Director, Office of Federal Advisory America. However, the patent rights for Cancer and Environmental Research Committee Policy. HHS Ref. No. E–130–2006/0–US–01 and Coordinating Committee (IBCERC). [FR Doc. 2011–8048 Filed 4–4–11; 8:45 am] HHS Ref. No. E–130–2006/0–PCT–02 Date: May 12–13, 2011. are co-owned and co-assigned to the BILLING CODE 4140–01–P Time: 8:30 a.m. to 5:30 p.m. University of Maryland. The United Agenda: The purpose of the meeting is to States of America has obtained an continue the work of the Committee, which exclusive license to the University of is to share and coordinate information on DEPARTMENT OF HEALTH AND HUMAN SERVICES Maryland’s rights in the invention. existing research activities, and to make The prospective exclusive license recommendations to the National Institutes of Health and other Federal agencies National Institutes of Health territory may be ‘‘worldwide’’, and the regarding how to improve existing research field of use may be limited to programs related to breast cancer and the Prospective Grant of Exclusive ‘‘development of devices for sale and environment. In advance of the meeting, the License: Device and System for Two services for high throughput parallel agenda will be posted on the Web at Dimensional Analysis of Biomolecules analysis and two dimensional analyses http://www.niehs.nih.gov/about/orgstructure/ From Tissue and Other Samples of molecules for all uses.’’ boards/ibcercc/. DATES: Only written comments and/or Place: National Institute of Environmental AGENCY: National Institutes of Health, Health Sciences, Building 101, Rodbell Public Health Service, HHS. applications for a license which are received by the NIH Office of Auditorium, 111 T.W. Alexander Drive, ACTION: Notice. Research Triangle Park, NC 27709. Technology Transfer on or before May 5, Contact Person: Gwen W. Collman, PhD, SUMMARY: This is notice, in accordance 2011 will be considered. Director, Division of Extramural Research with 35 U.S.C. 209(c)(1) and 37 CFR ADDRESSES: Requests for copies of the and Training, National Institute of part 404.7(a)(1)(i), that the National patent application, inquiries, comments, Environmental Health Sciences, 615 Davis Institutes of Health, Department of and other materials relating to the Dr., KEY615/3112, Research Triangle Park, NC 27709. (919) 541–4980. Health and Human Services, is contemplated exclusive license should [email protected]. contemplating the grant of an exclusive be directed to: Kevin W. Chang, PhD, Any member of the public interested in patent license to practice the inventions Senior Licensing and Patenting presenting oral comments to the committee embodied in PCT Patent Application Manager, Office of Technology Transfer, should submit their remarks in writing at No. PCT/US03/37208 [HHS Ref. No. E– National Institutes of Health, 6011 least 10 days in advance of the meeting. 339–2002/0–PCT–02], filed November Executive Boulevard, Suite 325, Comments in document format (i.e. WORD, 20, 2003, which published as WO 2004/ Rockville, MD 20852–3804; Telephone: Rich Text, PDF) may be submitted via e-mail 048928 on June 10, 2004, now expired, (301) 435–5018; Facsimile: (301) 402– to [email protected] or mailed to the entitled ‘‘Method And Apparatus for 0220; E-mail: [email protected]. Contact Person listed on this notice. You do not need to attend the meeting in order to Performing Multiple Simultaneous SUPPLEMENTARY INFORMATION: The submit comments. Manipulations of Biomolecules In a subject technologies are methods, Interested individuals and representatives Two-Dimensional Array;’’ U.S. Patent systems, and devices for purifying, of organizations may submit a letter of intent, Application No. 10/535,521 [HHS Ref. transferring, or manipulating a brief description of the organization No. E–339–2002/0–US–03], filed May biomolecules, including nucleic acids represented, and a short description of the 18, 2005, now abandoned, which from a sample, or performing a oral comments you wish to present. Only one published as US–2006–0147926 A1 on combination thereof, that substantially representative per organization may be July 6, 2006 entitled ‘‘Method And preserve two-dimensional (2D) spatial allowed to present oral comments and if accepted by the committee, presentations Apparatus for Performing Multiple information on the original locations of may be limited to five minutes. Both printed Simultaneous Manipulations of the biomolecules within the sample. and electronic copies are requested for the Biomolecules In a Two-Dimensional The prospective exclusive license will record. The statement should include the Array;’’ U.S. Patent Application No. 12/ be royalty bearing and will comply with name, address, telephone number and, when 587,976 [HHS Ref. No. E–339–2002/0– the terms and conditions of 35 U.S.C.

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209 and 37 CFR 404.7. The prospective omitted from subsequent lists until such ACM Medical Laboratory, Inc,. 160 exclusive license may be granted unless time as it is restored to full certification Elmgrove Park, Rochester, NY 14624, within thirty (30) days from the date of under the Mandatory Guidelines. 585–429–2264. this published notice, the NIH receives If any Laboratory/IITF has withdrawn Advanced Toxicology Network, 3560 written evidence and argument that from the HHS National Laboratory Air Center Cove, Suite 101, Memphis, establishes that the grant of the license Certification Program (NLCP) during the TN 38118, 901–794–5770/888–290– would not be consistent with the past month, it will be listed at the end 1150. requirements of 35 U.S.C. 209 and 37 and will be omitted from the monthly Aegis Analytical Laboratories, 345 Hill CFR 404.7. listing thereafter. Ave., Nashville, TN 37210, 615–255– Applications for a license in the field This notice is also available on the 2400 (Formerly: Aegis Sciences of use filed in response to this notice Internet at http:// Corporation, Aegis Analytical will be treated as objections to the grant www.workplace.samhsa.gov and http:// Laboratories, Inc.). of the contemplated exclusive license. www.drugfreeworkplace.gov. Alere Toxicology Services, 1111 Newton St., Gretna, LA 70053, 504–361–8989/ Comments and objections submitted to FOR FURTHER INFORMATION CONTACT: Mrs. 800–433–3823 (Formerly: Kroll this notice will not be made available Giselle Hersh, Division of Workplace Laboratory Specialists, Inc., for public inspection and, to the extent Programs, SAMHSA/CSAP, Room 2– permitted by law, will not be released Laboratory Specialists, Inc.). 1042, One Choke Cherry Road, Alere Toxicology Services, 450 under the Freedom of Information Act, Rockville, Maryland 20857; 240–276– 5 U.S.C. 552. Southlake Blvd., Richmond, VA 2600 (voice), 240–276–2610 (fax). 23236, 804–378–9130 (Formerly: Dated: March 29, 2011. SUPPLEMENTARY INFORMATION: The Kroll Laboratory Specialists, Inc., Richard U. Rodriguez, Mandatory Guidelines were initially Scientific Testing Laboratories, Inc.; Director, Division of Technology Development developed in accordance with Executive Kroll Scientific Testing Laboratories, and Transfer, Office of Technology Transfer, Order 12564 and section 503 of Public Inc.). National Institutes of Health. Law 100–71. The ‘‘Mandatory Baptist Medical Center-Toxicology [FR Doc. 2011–8090 Filed 4–4–11; 8:45 am] Guidelines for Federal Workplace Drug Laboratory, 11401 I–30, Little Rock, BILLING CODE 4140–01–P Testing Programs,’’ as amended in the AR 72209–7056, 501–202–2783 revisions listed above, requires {or set} (Formerly: Forensic Toxicology strict standards that Laboratories and Laboratory Baptist Medical Center). DEPARTMENT OF HEALTH AND Instrumented Initial Testing Facilities Clinical Reference Lab, 8433 Quivira HUMAN SERVICES (IITF) must meet in order to conduct Road, Lenexa, KS 66215–2802, 800– drug and specimen validity tests on Substance Abuse and Mental Health 445–6917. urine specimens for Federal agencies. Doctors Laboratory, Inc., 2906 Julia Services Administration To become certified, an applicant Drive, Valdosta, GA 31602, 229–671– Current List of Laboratories and Laboratory/IITF must undergo three 2281. Instrumented Initial Testing Facilities rounds of performance testing plus an DrugScan, Inc., P.O. Box 2969, 1119 Which Meet Minimum Standards To on-site inspection. To maintain that Mearns Road, Warminster, PA 18974, Engage in Urine Drug Testing for certification, a Laboratory/IITF must 215–674–9310. Federal Agencies participate in a quarterly performance DynaLIFE Dx*, 10150–102 St., Suite testing program plus undergo periodic, 200, Edmonton, Alberta, Canada T5J AGENCY: Substance Abuse and Mental on-site inspections. 5E2, 780–451–3702/800–661–9876 Health Services Administration, HHS. Laboratories and Instrumented Initial (Formerly: Dynacare Kasper Medical ACTION: Notice. Testing Facilities (IITF) in the applicant Laboratories). stage of certification are not to be ElSohly Laboratories, Inc., 5 Industrial SUMMARY: The Department of Health and considered as meeting the minimum Park Drive, Oxford, MS 38655, 662– Human Services (HHS) notifies Federal requirements described in the HHS 236–2609. agencies of the Laboratories and Mandatory Guidelines. A Laboratory/ Gamma-Dynacare Medical Instrumented Initial Testing Facilities IITF must have its letter of certification Laboratories*, A Division of the (IITF) currently certified to meet the from HHS/SAMHSA (formerly: HHS/ Gamma-Dynacare Laboratory standards of the Mandatory Guidelines NIDA) which attests that it has met Partnership, 245 Pall Mall Street, for Federal Workplace Drug Testing minimum standards. London, ONT, Canada N6A 1P4, 519– Programs (Mandatory Guidelines). The In accordance with the Mandatory 679–1630. Mandatory Guidelines were first Guidelines dated November 25, 2008 Laboratory Corporation of America published in the Federal Register on (73 FR 71858), the following Holdings, 7207 N. Gessner Road, April 11, 1988 (53 FR 11970), and Laboratories and Instrumented Initial Houston, TX 77040, 713–856–8288/ subsequently revised in the Federal Testing Facilities (IITF) meet the 800–800–2387. Register on June 9, 1994 (59 FR 29908); minimum standards to conduct drug Laboratory Corporation of America September 30, 1997 (62 FR 51118); and specimen validity tests on urine Holdings, 69 First Ave., Raritan, NJ April 13, 2004 (69 FR 19644); November specimens: 08869, 908–526–2400/800–437–4986 25, 2008 (73 FR 71858); December 10, (Formerly: Roche Biomedical 2008 (73 FR 75122); and on April 30, Instrumented Initial Testing Facilities Laboratories, Inc.). 2010 (75 FR 22809). (IITF): Laboratory Corporation of America A notice listing all currently certified None. Holdings, 1904 Alexander Drive, Laboratories and Instrumented Initial Research Triangle Park, NC 27709, Testing Facilities (IITF) is published in Laboratories: 919–572–6900/800–833–3984 the Federal Register during the first ACL Laboratories, 8901 W. Lincoln (Formerly: LabCorp Occupational week of each month. If any Laboratory/ Ave., West Allis, WI 53227, 414–328– Testing Services, Inc., CompuChem IITF’s certification is suspended or 7840/800–877–7016 (Formerly: Laboratories, Inc.; CompuChem revoked, the Laboratory/IITF will be Bayshore Clinical Laboratory). Laboratories, Inc., A Subsidiary of

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Roche Biomedical Laboratory; Roche S.E.D. Medical Laboratories, 5601 Office Dated: March 30, 2011. CompuChem Laboratories, Inc., A Blvd., Albuquerque, NM 87109, 505– Elaine Parry, Member of the Roche Group). 727–6300/800–999–5227. Director, Office of Management, Technology, Laboratory Corporation of America South Bend Medical Foundation, Inc., and Operations, SAMHSA. Holdings, 1120 Main Street, 530 N. Lafayette Blvd., South Bend, [FR Doc. 2011–8000 Filed 4–4–11; 8:45 am] Southaven, MS 38671, 866–827–8042/ IN 46601, 574–234–4176 x1276. BILLING CODE 4160–20–P 800–233–6339 (Formerly: LabCorp Occupational Testing Services, Inc.; Southwest Laboratories, 4625 E. Cotton MedExpress/National Laboratory Center Boulevard, Suite 177, Phoenix, AZ 85040, 602–438–8507/800–279– DEPARTMENT OF HOMELAND Center). SECURITY LabOne, Inc. d/b/a Quest Diagnostics, 0027. 10101 Renner Blvd., Lenexa, KS St. Anthony Hospital Toxicology Coast Guard 66219, 913–888–3927/800–873–8845 Laboratory, 1000 N. Lee St., [Docket No. USCG–2011–0124] (Formerly: Quest Diagnostics Oklahoma City, OK 73101, 405–272– Incorporated; LabOne, Inc.; Center for 7052. Notification of the Removal of Laboratory Services, a Division of STERLING Reference Laboratories, 2617 Conditions of Entry on Vessels LabOne, Inc.,). Arriving From the Islamic Republic of Maxxam Analytics*, 6740 Campobello East L Street, Tacoma, Washington Mauritania Road, Mississauga, ON, Canada L5N 98421, 800–442–0438. 2L8, 905–817–5700 (Formerly: Toxicology & Drug Monitoring AGENCY: Coast Guard, DHS. Maxxam Analytics Inc., NOVAMANN Laboratory, University of Missouri ACTION: Notice. (Ontario), Inc.). Hospital & Clinics, 301 Business Loop MedTox Laboratories, Inc., 402 W. 70 West, Suite 208, Columbia, MO SUMMARY: The Coast Guard announces County Road D, St. Paul, MN 55112, 65203, 573–882–1273. that it is removing the conditions of 651–636–7466/800–832–3244. Toxicology Testing Service, Inc., 5426 entry on vessels arriving from the MetroLab-Legacy Laboratory Services, N.W. 79th Ave., Miami, FL 33166, country of Islamic Republic of 1225 NE 2nd Ave., Portland, OR 305–593–2260. Mauritania. 97232, 503–413–5295/800–950–5295. DATES: U.S. Army Forensic Toxicology Drug The policy announced in this Minneapolis Veterans Affairs Medical notice is effective on April 5, 2011. Center, Forensic Toxicology Testing Laboratory, 2490 Wilson St., ADDRESSES: This notice is part of docket Laboratory, 1 Veterans Drive, Fort George G. Meade, MD 20755– USCG–2011–0124 and is available Minneapolis, MN 55417, 612–725– 5235, 301–677–7085. online by going to http:// 2088. * The Standards Council of Canada www.regulations.gov, inserting USCG– National Toxicology Laboratories, Inc., (SCC) voted to end its Laboratory 2011–0124 in the ‘‘Keyword’’ box, and 1100 California Ave., Bakersfield, CA Accreditation Program for Substance then clicking ‘‘Search.’’ This material is 93304, 661–322–4250/800–350–3515. Abuse (LAPSA) effective May 12, 1998. also available for inspection and One Source Toxicology Laboratory, Inc., Laboratories certified through that 1213 Genoa-Red Bluff, Pasadena, TX copying at the Docket Management program were accredited to conduct Facility (M–30), U.S. Department of 77504, 888–747–3774 (Formerly: forensic urine drug testing as required University of Texas Medical Branch, Transportation, West Building Ground by U.S. Department of Transportation Floor, Room W12–140, 1200 New Jersey Clinical Chemistry Division; UTMB (DOT) regulations. As of that date, the Pathology-Toxicology Laboratory). Avenue, SE., Washington, DC 20590, certification of those accredited between 9 a.m. and 5 p.m., Monday Pacific Toxicology Laboratories, 9348 Canadian laboratories will continue DeSoto Ave., Chatsworth, CA 91311, through Friday, except Federal holidays. under DOT authority. The responsibility FOR FURTHER INFORMATION CONTACT: If 800–328–6942 (Formerly: Centinela for conducting quarterly performance Hospital Airport Toxicology you have questions on this notice, call testing plus periodic on-site inspections Mr. Michael Brown, International Port Laboratory). of those LAPSA-accredited laboratories Pathology Associates Medical Security Evaluation Division, United was transferred to the U.S. HHS, with Laboratories, 110 West Cliff Dr., States Coast Guard, telephone 202— the HHS’ NLCP contractor continuing to Spokane, WA 99204, 509–755–8991/ 372–1081. If you have questions on have an active role in the performance 800–541–7891x7. viewing or submitting material to the testing and laboratory inspection Phamatech, Inc., 10151 Barnes Canyon docket, call Renee V. Wright, Program processes. Other Canadian laboratories Road, San Diego, CA 92121, 858–643– Manager, Docket Operations, telephone wishing to be considered for the NLCP 5555. 202–366–9826 or (toll free) 1–800–647– Quest Diagnostics Incorporated, 1777 may apply directly to the NLCP 5527. contractor just as U.S. laboratories do. Montreal Circle, Tucker, GA 30084, SUPPLEMENTARY INFORMATION: 800–729–6432 (Formerly: SmithKline Upon finding a Canadian laboratory to Beecham Clinical Laboratories; be qualified, HHS will recommend that Background and Purpose SmithKline Bio-Science Laboratories). DOT certify the laboratory (Federal Section 70110 title 46, United States Quest Diagnostics Incorporated, 400 Register, July 16, 1996) as meeting the Code, enacted as part of section 102(a) Egypt Road, Norristown, PA 19403, minimum standards of the Mandatory of the Maritime Transportation Security 610–631–4600/877–642–2216 Guidelines published in the Federal Act of 2002 (Pub. L. 107–295, Nov. 25, (Formerly: SmithKline Beecham Register on April 30, 2010 (75 FR 2002) authorizes the Secretary of Clinical Laboratories; SmithKline Bio- 22809). After receiving DOT Homeland Security to impose Science Laboratories). certification, the laboratory will be conditions of entry on vessels Quest Diagnostics Incorporated, 8401 included in the monthly list of HHS- requesting entry into the United States Fallbrook Ave., West Hills, CA 91304, certified laboratories and participate in arriving from ports that are not 800–877–2520 (Formerly: SmithKline the NLCP certification maintenance maintaining effective anti-terrorism Beecham Clinical Laboratories). program. measures. It also requires public notice

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of the ineffective anti-terrorism Management Agency, 500 C Street, SW., the proposal by name/or OMB Control measures. The Secretary has delegated Washington, DC 20472, (202) 646–3886. number and should be sent to: Colette to the Coast Guard authority to carry out SUPPLEMENTARY INFORMATION: The notice Pollard, Departmental Reports the provisions of this section. Previous of a major disaster declaration for the Management Officer, QDAM, notices have imposed or removed State of New York is hereby amended to Department of Housing and Urban conditions of entry on vessels arriving include the following areas among those Development, 451 7th Street, SW., from certain countries, and those areas determined to have been adversely Room 4160, Washington, DC 20410– conditions of entry and the countries affected by the event declared a major 5000; telephone 202.402.3400 (this is they pertain to remain in effect unless disaster by the President in his not a toll-free number) or email Ms. modified by this notice. On May 2, declaration of February 18, 2011. Pollard at [email protected]. 2005, the Coast Guard published a Persons with hearing or speech Columbia, Dutchess, Kings, and Rockland Notice of Policy in the Federal Register, Counties for emergency protective measures impairments may access this number (70 FR 22668), announcing that it had (Category B), including snow assistance, through TTY by calling the toll-free determined that ports in the Islamic under the Public Assistance program for any Federal Information Relay Service at Republic of Mauritania, among other continuous 48-hour period during or (800) 877–8339. (Other than the HUD countries, were not maintaining proximate to the incident period. USER information line and TTY effective anti-terrorism measures, and (The following Catalog of Federal Domestic numbers, telephone numbers are not imposed conditions of entry. Assistance Numbers (CFDA) are to be used toll-free.) Based on recent information, the for reporting and drawing funds: 97.030, FOR FURTHER INFORMATION CONTACT: Coast Guard has determined that the Community Disaster Loans; 97.031, Cora Arlette Mussington, Office of Policy, Brown Fund; 97.032, Crisis Counseling; Islamic Republic of Mauritania is now Programs and Legislative Initiatives, maintaining effective anti-terrorism 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); PIH, Department of Housing and Urban measures, and is accordingly removing 97.046, Fire Management Assistance Grant; Development, 451 7th Street, SW., the conditions of entry announced in 97.048, Disaster Housing Assistance to (L’Enfant Plaza, Room 2206), previously published Notice of Policy. Individuals and Households In Presidentially Washington, DC 20410; telephone 202– With this notice, the current list of Declared Disaster Areas; 97.049, 402–4109, (this is not a toll-free countries not maintaining effective anti- Presidentially Declared Disaster Assistance— number). terrorism measures is as follows: Disaster Housing Operations for Individuals SUPPLEMENTARY INFORMATION: The Cambodia, Cameroon, Republic of the and Households; 97.050 Presidentially Department will submit the proposed Congo, Cuba, Equatorial Guinea, Declared Disaster Assistance to Individuals information collection to OMB for Guinea-Bissau, Indonesia, Iran, Liberia, and Households—Other Needs; 97.036, Disaster Grants—Public Assistance review, as required by the Paperwork Madagascar, Sao Tome and Principe, (Presidentially Declared Disasters); 97.039, Reduction Act of 1995 (44 U.S.C. Syria, Timor-Leste, and Venezuela. Hazard Mitigation Grant.) Chapter 35, as amended). This notice is This notice is issued under authority soliciting comments from members of of 46 U.S.C. 70110(a)(3). W. Craig Fugate, Administrator, Federal Emergency the public and affected agencies Dated: March 10, 2011. Management Agency. concerning the extension of the Rear Admiral Paul F. Zukunft, [FR Doc. 2011–8043 Filed 4–4–11; 8:45 am] proposed collection of information to: USCG, Deputy Commandant for Operations, (1) Evaluate whether the proposed BILLING CODE 9111–23–P Acting. collection of information is necessary [FR Doc. 2011–8006 Filed 4–4–11; 8:45 am] for the proper performance of the functions of the agency, including BILLING CODE 9110–04–P DEPARTMENT OF HOUSING AND whether the information will have URBAN DEVELOPMENT practical utility; (2) evaluate the DEPARTMENT OF HOMELAND [Docket No. FR–5487–N–04] accuracy of the agency’s estimate of the SECURITY burden of the proposed collection of Notice of Extension of Proposed information; (3) enhance the quality, Federal Emergency Management Information Collection for Public utility, and clarity of the information to Agency Comment; Public Housing Financial be collected; and (4) minimize the Management Template burden of the collection of information [Internal Agency Docket No. FEMA–1957– AGENCY: on those who are to respond, including DR; Docket ID FEMA–2011–0001] Office of the Assistant Secretary for Public and Indian through the use of appropriate Housing, HUD. automated collection techniques or New York; Amendment No. 2 to Notice other forms of information technology; ACTION: Notice. of a Major Disaster Declaration e.g., permitting alternate electronic AGENCY: Federal Emergency SUMMARY: The proposed information submission of responses. Management Agency, DHS. collection requirement described below This Notice also lists the following information: ACTION: Notice. will be submitted to the Office of Management and Budget (OMB) for Title of Proposal: Public Housing SUMMARY: This notice amends the notice review, as required by the Paperwork Financial Management Template. of a major disaster declaration for the Reduction Act. The Department is OMB Control Number: 2535–0107. Description of the need for the State of New York (FEMA–1957–DR), soliciting public comments on the information and proposed use: To meet dated February 18, 2011, and related subject proposal. determinations. the requirements of the Uniform DATES: Comments Due Date: June 6, Financial Standards Rule (24 CFR part DATES: Effective Date: March 22, 2011. 2011. 5, subpart H) and the continued FOR FURTHER INFORMATION CONTACT: ADDRESSES: Interested persons are implementation of asset management Peggy Miller, Office of Response and invited to submit comments regarding contained in 24 CFR part 990, the Recovery, Federal Emergency this proposal. Comments should refer to Department has developed the financial

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management template that public Administration (NOAA), intend to out approximately 50 nautical miles housing agencies (PHAs) use to prepare the monument management (nmi); the Volcanic Unit encompasses annually submit electronically financial plan (MMP) for the Marianas Trench each designated volcanic feature and the information to HUD. HUD uses the Marine National Monument surrounding submerged lands out to 1 financial information it collects from (Monument) established by Presidential nmi; and the Trench Unit encompasses each PHA to assist in the evaluation and Proclamation 8335. The MMP will the submerged lands within the Mariana assessment of the PHAs’ overall satisfy FWS comprehensive Trench. condition. Requiring PHAs to report conservation plan (CCP) requirements The Monument encompasses electronically has enabled HUD to for two units of the National Wildlife approximately 61 million acres of provide a comprehensive financial Refuge System (NWRS) contained submerged lands and certain waters of assessment of the PHAs receiving therein. When the draft MMP is the Mariana Archipelago. The Trench federal funds from HUD. complete, we will advertise its Unit contains approximately 50.5 Agency form number, if applicable: availability and again seek public million acres of submerged lands, the N/A. comment. Volcanic Unit includes approximately Members of affected public: Public We furnish this notice to advise the 55,912 acres of submerged lands, and housing agencies. public and other Federal and local the Islands Unit encompasses Estimation of the total number of agencies of our intentions, and to obtain approximately 10.5 million acres of hours needed to prepare the information suggestions and information on the submerged lands and waters. collection including number of scope of issues to consider during the The Secretary of the Interior, in respondents: The estimated number of planning process. consultation with the Secretary of respondents is 4,106 PHAs that submit An environmental assessment (EA) to Commerce, has responsibility for one unaudited financial management evaluate the potential effects of various management of the Monument; except template annually and 3,657 PHAs that management alternatives will also be that the Secretary of Commerce, in submit one audited financial prepared. The EA will provide resource consultation with the Secretary of the management template annually; for a managers with the information needed Interior, has primary responsibility for total of 7,763 respondents. The average to determine if the potential effects may management with respect to fishery- number of hours for each PHA response be significant and warrant preparation related activities regulated pursuant to is 5.5 hours, for a total reporting burden of an Environmental Impact Statement the Magnuson-Stevens Fishery of 42,620 hours. (EIS), or if the potential impacts lead to Conservation and Management Act Status of the proposed information a Finding of No Significant Impact (Magnuson-Stevens Act) (16 U.S.C. 1801 collection: Extension, without change, (FONSI). et seq.), the Proclamation, and other of a currently approved collection. applicable legal authorities. DATES: To ensure consideration, we The Proclamation requires the Authority: Section 3506 of the Paperwork must receive your written comments by Secretaries of the Interior and Reduction Act of 1995, 44 U.S.C. Chapter 35, May 5, 2011. Commerce to prepare management as amended. ADDRESSES: Additional information plans within their respective authorities Dated: March 24, 2011. about the Monument and its two refuge for the Monument, and promulgate Merrie Nichols-Dixon, units is available at http://www.fws.gov/ implementing regulations that address Deputy Director for Office of Policy, Program marianastrenchmarinemonument/ and specific actions necessary for the proper and Legislative Initiatives. http://www.fpir.noaa.gov/MNM/ care and management of the Monument. [FR Doc. 2011–8036 Filed 4–4–11; 8:45 am] mnm_index.html. Please send your With this notice, the Department of the BILLING CODE 4210–67–P written comments or requests for more Interior and the Department of information by any of the following Commerce (Departments) are methods. commencing development of the MMP. DEPARTMENT OF COMMERCE E-mail: [email protected]. The Departments will work Fax: (808) 973–2941. cooperatively under Fish and Wildlife DEPARTMENT OF THE INTERIOR U.S. Mail: Heidi Hirsh, Natural Service’s lead in this process. The Resource Management Specialist, Commerce Department, in consultation Fish and Wildlife Service NOAA, National Marine Fisheries with the Secretary of the Interior, is Service, 1601 Kapiolani Blvd #1110, working with the Western Pacific [FWS–R1–R–2010–N009; 1265–000–10137– Fishery Management Council pursuant S3] Honolulu, HI 96814. FOR FURTHER INFORMATION CONTACT: to the Magnuson-Stevens Fishery Marianas Trench Marine National Heidi Hirsh, Natural Resource Conservation and Management Act and Monument, Commonwealth of the Management Specialist, (808) 944–2223. the Proclamation to develop a fisheries ecosystem plan amendment and related Northern Mariana Islands, et al.; SUPPLEMENTARY INFORMATION: Monument Management Plan, regulations. To the extent they relate to Comprehensive Conservation Plans, Background waters within the Monument, the plan amendment and implementing and Environmental Assessment Monument Establishment and regulations will be one component of Management Responsibilities AGENCY: Fish and Wildlife Service, the MMP. The Departments intend to Interior; National Oceanic and On January 6, 2009, President George cooperate and coordinate in the Atmospheric Administration, W. Bush issued Proclamation No. 8335 development and timing of these Commerce. (Proclamation), establishing the planning and management processes. ACTION: Notice of intent; request for Monument under the authority of the To carry out his responsibilities from comments. Antiquities Act of 1906. The Monument the President under the Proclamation, consists of three units: The Islands Unit by Secretary’s Order 3284 (Order) dated SUMMARY: We, the U.S. Fish and encompasses the waters and submerged January 16, 2009, the Secretary of the Wildlife Service (FWS) and the National lands of the three northernmost Mariana Interior delegated all of his management Atmospheric and Oceanic Islands from the mean low water line responsibility for the Monument to the

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FWS Director. The Order directs the opportunities for hunting, fishing, diminish the Monument’s natural FWS to manage the Volcanic Unit and wildlife observation and photography, character. the Trench Unit as units of the NWRS. and environmental education and Public Involvement The Order also directs the FWS to interpretation. exercise all management responsibility We will conduct environmental The FWS and NOAA will conduct the given to the Secretary for the Islands reviews of various management planning process in a manner that will Unit, but specifies that no part of it is alternatives and develop an EA in provide participation opportunities for included as a unit of the NWRS. In accordance with the National the public, Federal and local carrying out this delegation with respect Environmental Policy Act (NEPA) of government agencies, and other to the two units added to the NWRS, 1969, as amended (42 U.S.C. 4321 et interested parties. At this time, we and to facilitate public awareness that seq.); NEPA Regulations (40 CFR parts encourage input in the form of issues, their status is slightly different than that 1500–1508); other Federal laws and concerns, ideas, and suggestions for the of the Islands Unit, the FWS named the regulations; and our policies and future management of the Monument. Trench Unit the Mariana Trench procedures for compliance with those Opportunities for additional public National Wildlife Refuge, and the laws and regulations. input will be announced throughout the Volcanic Unit the Mariana Arc of Fire The Fish and Wildlife Service, as lead planning process. We may hold public National Wildlife Refuge. agency for NEPA purposes, will also meetings to help share information and designate and involve as cooperating obtain comments. The Monument’s Natural Resources agencies the Department of Commerce, The Volcanic Unit contains unique through NOAA; the Department of Preliminary Issues, Concerns, and geological features found nowhere else Defense; the Department of State; and Opportunities in the world, including the largest active the Government of the Commonwealth We identified the following mud volcanoes, vents expelling almost of the Northern Mariana Islands (CNMI), preliminary issues and opportunities pure liquid carbon dioxide, a pool of in accordance with NEPA and Executive that we may address in the MMP. We liquid sulfur, and one of only a few Order 13352 of August 26, 2004, titled expect to identify additional issues places in the world where Facilitation of Cooperative during public scoping. photosynthetic and chemosynthetic Conservation. • Climate change impacts and communities of life coexist. The Trench The MMP is to provide for the adaptation. Unit, where the Pacific Plate plunges following activities, to the extent • Marine debris impacts and removal. into the Earth’s mantle, contains the appropriate to Department of the • Invasive species prevention and deepest point on Earth. The Islands Unit Interior and Department of Commerce control. encompasses the waters of the authorities and the Proclamation: • Other potential threats to the archipelago’s three northern islands, • Management of the Islands Unit, in ecosystem (e.g., trespass; illegal fishing; which are among the most biologically consultation with the Government of the and shipwrecks, groundings, and spills). diverse in the western Pacific Ocean, CNMI, including designating specific • Emergency response to natural and and includes the greatest diversity of roles and responsibilities, and manmade disasters and natural seamount and hydrothermal vent life identifying the means of consultation on resources damage assessments. yet discovered. management decisions as appropriate • Operational capabilities for The MMP Planning Process and consistent with the respective effective ecosystem monitoring, authorities and jurisdictions of the surveillance, and enforcement. The MMP’s format will include CNMI and the Secretaries of the Interior • Habitat conservation and elements similar to a NWRS CCP, and and Commerce. restoration. the planning process for those elements • Public education programs and • Biological and abiotic inventory will be conducted in a manner similar public outreach regarding the and monitoring. to the CCP planning and public Monument’s coral reef ecosystem, • Protected resources and their involvement process. The MMP will be related marine resources and species, habitats, including coral reefs, marine updated every 15 years. and conservation efforts. clams, apex predators, marine The National Wildlife Refuge System • Traditional access to the Monument mammals, sea turtles, seabirds, and Administration Act of 1966, as amended by indigenous persons, as identified by fishes. by the National Wildlife Refuge System the Secretaries of the Interior and • Historic and cultural resources, Improvement Act of 1997 (16 U.S.C. Commerce in consultation with the including maritime heritage. 668dd–668ee) (Refuge System Government of the CNMI, for culturally • Public education and outreach. Administration Act), requires FWS to significant subsistence and other • International programs and develop a CCP for each national wildlife cultural and religious uses. collaboration. refuge or planning unit. The purpose for • A program to assess and promote • Scientific exploration and research developing a CCP is to provide refuge Monument-related scientific exploration opportunities. managers with a 15-year plan for and research, tourism, and recreational • Developing an appropriate achieving refuge purposes and and economic activities and permitting regime for activities within contributing toward the mission of the opportunities in the CNMI. the Monument. NWRS, consistent with sound • A process to consider requests for • Determining if bioprospecting is principles of fish and wildlife recreational fishing permits in certain appropriate and compatible. management and natural resource areas of the Islands Unit. conservation, legal mandates, and • Programs for monitoring and Next Steps applicable policies. In addition to enforcement necessary to ensure that The FWS and NOAA, in consultation outlining broad management direction scientific exploration and research, with the Mariana Monument Advisory for conserving wildlife and their tourism, and recreational and Council, and the Government of the habitats, CCPs identify wildlife- commercial activities do not degrade the CNMI, will be considering your dependent recreational opportunities Monument’s coral reef ecosystem or comments during development of the available to the public, including related marine resources or species, or Draft MMP/CCPs/EA.

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Public Availability of Comments management alternatives will also be The Proclamation requires the Before including your address, phone prepared. The EA will provide resource Secretaries of the Interior and number, or other personal identifying managers with the information needed Commerce to prepare management information in your comment, you to determine if the potential effects may plans within their respective authorities should be aware that your entire be significant and warrant preparation for the Monument, and promulgate comment—including your personal of an Environmental Impact Statement implementing regulations that address identifying information—may be made (EIS), or if the potential impacts lead to specific actions necessary for the proper publicly available at any time. While a Finding of No Significant Impact care and management of the Monument. you can ask us in your comments to (FONSI). With this notice, the Department of the withhold your personal identifying DATES: To ensure consideration, we Interior and Department of Commerce information from public review, we must receive your comments by May 5, (Departments) are commencing cannot guarantee that we will be able to 2011. development of the MMP. The Departments will work cooperatively do so. ADDRESSES: Additional information under the Fish and Wildlife Service’s about the Monument and its seven Robyn Thorson, lead in this process. The Commerce Refuge units is available at http:// Department, in consultation with the Regional Director, Region 1, Portland, Oregon. www.fws.gov/ Secretary of the Interior, is working with Emily H. Menashes, pacificremoteislandsmarinemonument/ the Western Pacific Fishery Acting Director, Office of Sustainable and http://www.fpir.noaa.gov/MNM/ Management Council pursuant to the Fisheries, National Marine Fisheries Service. mnm_index.html. Please send your Magnuson-Stevens Fishery [FR Doc. 2011–7960 Filed 4–4–11; 8:45 am] written comments or requests for more Conservation and Management Act and BILLING CODE 4310–55–P information by any of the following Proclamation to develop a fisheries methods: E-mail: [email protected]. ecosystem plan amendment and related DEPARTMENT OF COMMERCE Fax: (808) 792–9586. regulations. To the extent they relate to U.S. Mail: Susan White, Project waters within the Monument, the plan DEPARTMENT OF THE INTERIOR Leader, Pacific Reefs National Wildlife amendment and implementing Refuge Complex, 300 Ala Moana Blvd. regulations will be one component of Fish and Wildlife Service Room 5–231, Honolulu, HI 96850. the MMP. The Departments intend to FOR FURTHER INFORMATION CONTACT: cooperate and coordinate in the [FWS–R1–R–2009–N265; 1265–0000–10137– development and timing of these S3] Susan White, Project Leader, (808) 792– 9550. planning and management processes. To carry out his responsibilities from Pacific Remote Islands Marine National SUPPLEMENTARY INFORMATION: Monument; Monument Management the President under the Proclamation, Plan, Comprehensive Conservation Background on January 16, 2009, the Secretary of the Plans, and Environmental Assessment Interior delegated his authority for Monument Establishment and Monument management to the FWS AGENCIES: Fish and Wildlife Service, Management Responsibilities Director, and extended the boundaries Interior; National Oceanic and On January 6, 2009, President George of the Baker Island, Howland Island, Atmospheric Administration, W. Bush issued Proclamation No. 8336 and Jarvis Island Refuges from 3 nmi to Commerce. (Proclamation), establishing the 12 nmi from the mean low water lines ACTION: Notice of intent; request for Monument under the authority of the of the emergent land. The Secretary also comments. Antiquities Act of 1906. The Monument extended the Johnston Atoll Refuge incorporates approximately 86,888 boundary to 12 nmi from the mean low SUMMARY: We, the U.S. Fish and square miles within its boundaries, water line of the emergent land, and Wildlife Service (FWS) and the National which extend 50 nautical miles (nmi) added the emergent and submerged Oceanic and Atmospheric from the mean low water lines of Baker, lands and waters of Wake Island out to Administration (NOAA), intend to Howland, and Jarvis Islands; Johnston, 12 nmi as a unit of the National Wildlife prepare the monument management Palmyra, and Wake Atolls; and Kingman Refuge System (NWRS). In accordance plan (MMP) for the Pacific Remote Reef. The Secretary of the Interior, in with the Proclamation, the Director will Islands Marine National Monument consultation with the Secretary of not commence management of emergent (Monument), established by Presidential Commerce, has responsibility for lands at Wake Island unless and until a Proclamation 8336. Additionally, the management of the Monument, use agreement between the Secretary of FWS also intends to prepare new or including out to 12 nmi from the mean the Air Force and the Secretary of the revised comprehensive conservation low water lines of Baker, Howland, and Interior is terminated. The Secretary of plans (CCPs) for the following national Jarvis Islands; Johnston, Palmyra, and Defense also continues to manage those wildlife refuges (Refuges) contained Wake Atolls; and Kingman Reef, portions of the emergent lands of therein: Baker Island, Howland Island, pursuant to applicable legal authorities. Johnston Atoll under the administrative Jarvis Island, Johnston Atoll, Kingman The Secretary of Commerce, through jurisdiction of the Defense Department Reef, Palmyra Atoll, and Wake Atoll. NOAA, and in consultation with the until such administrative jurisdiction is When the draft MMP is complete, we Secretary of the Interior, has primary terminated, at which time those will advertise its availability and again responsibility for management of the emergent lands shall be administered as seek public comment. We furnish this Monument seaward from 12 to 50 nmi part of the Johnston Atoll Refuge. notice to advise the public and other with respect to fishery-related activities Within the boundaries of the Federal agencies of our intentions, and regulated pursuant to the Magnuson- Monument, the FWS also continues to to obtain suggestions and information Stevens Fishery Conservation and administer pre-existing refuges at Baker, on the scope of issues to consider Management Act (Magnuson-Stevens Howland, and Jarvis Islands; Johnston during the planning process. Act) (16 U.S.C. 1801 et seq.), the and Palmyra Atolls; and Kingman Reef, An environmental assessment (EA) to Proclamation, and other applicable legal in accordance with the National evaluate the potential effects of various authorities. Wildlife Refuge System Administration

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Act of 1966 (Refuge System developing a CCP is to provide refuge to help share information and obtain Administration Act) (16 U.S.C. 668dd– managers with a 15-year direction for comments. 668ee), as amended. achieving refuge purposes and Preliminary Issues, Concerns, and contributing toward the mission of the Refuges Overview and Previous Opportunities NWRS, consistent with sound Planning Efforts principles of fish and wildlife We have identified the following Howland Island, Baker Island, and management, conservation, legal preliminary issues, concerns, and Jarvis Island are unique places for mandates, and applicable policies. In opportunities that we may address in climate change research and other addition to outlining broad management the MMP/CCPs. We may identify research conducted at the equator. direction for conserving wildlife and additional issues during public scoping. These areas have deep-water corals, habitats, CCPs identify wildlife- • Climate change impacts and coral reefs, corals in near-pristine dependent recreational opportunities adaptation. condition, and predator-dominated available to the public, including • Marine debris impacts and removal. marine ecosystems with a biomass of opportunities for hunting, fishing, • Invasive species prevention and top predators that exceeds the Great wildlife observation, wildlife control. Barrier Reef’s. At the conclusion of a 3- photography, and environmental • Other potential threats to the year planning process, CCPs were education and interpretation. We will ecosystem (e.g., trespass; illegal fishing; completed for the Baker Island, review and update the MMP and CCPs and shipwrecks, groundings, and spills). Howland Island, and Jarvis Island at least every 15 years consistent with • Emergency response to natural and Refuges on September 24, 2008 (73 FR the Refuge System Administration Act. manmade disasters and natural 76678; December 17, 2008). For the Each unit of the NWRS was resources damage assessments. current MMP/CCP planning process, we established for specific purposes. We • Operational capabilities for will focus on appropriate conservation use a refuge’s purposes as the effective ecosystem monitoring, and management regimes for the three foundation for developing and surveillance, and enforcement. Refuges, based on their inclusion in the prioritizing the management goals and • Habitat conservation and Monument and their expanded objectives for each refuge within the restoration. boundaries. The existing CCPs for the mission of the NWRS, and to determine • Biological and abiotic inventory three Refuges will be revised as needed. how the public can use each refuge. The and monitoring. Kingman Reef and Palmyra Atoll have CCP planning process is a way for us • Protected resources and their relatively undisturbed coral reefs, with and the public to evaluate management habitats, including coral reefs, marine the highest levels of coral diversity in goals and objectives that will ensure the clams, apex predators, marine the central Pacific Ocean. Kingman Reef best possible approach to wildlife, mammals, sea turtles, seabirds, and has the greatest known fish biomass and plant, and habitat conservation, while fishes. proportion of apex predators of any providing recreational opportunities • Historic and cultural resources, coral reef ecosystem that has been that are compatible with each refuge’s including maritime heritage. scientifically studied in the world. We establishing purposes and the mission • Public education and outreach. received public comments regarding of the NWRS. • International programs and management of the Kingman Reef and We will conduct environmental collaboration. Palmyra Atoll Refuges during our CCP reviews of various alternatives and • Scientific exploration and research public scoping period held in June develop an EA in accordance with the opportunities. 2007. We will review those comments National Environmental Policy Act • Past and current use of military again as part of the current MMP/CCP (NEPA) of 1969, as amended (42 U.S.C. sites. planning and public involvement 4321 et seq.); NEPA regulations (40 CFR • Methods for protecting the physical, process. parts 1500–1508); other Federal laws biological, and cultural resources for the Johnston Atoll’s coral reefs help and regulations; and applicable policies long term, while providing high-quality connect the Hawaiian archipelago reef and procedures for compliance with wildlife-dependent recreation communities to others in the Pacific. those laws and regulations. opportunities. They are the originating source for The Fish and Wildlife Service, as lead • Marine and terrestrial wildlife and much of the larvae for the Hawaiian agency for NEPA purposes, will also habitat management. Islands’ corals, invertebrates, and other designate and involve as a cooperating • Visitor services management. reef fauna. The Atoll’s reefs have the agency the Department of Commerce, • Facilities maintenance. deepest reef-building corals on record. through NOAA, in accordance with • Develop an appropriate permitting Wake Atoll encompasses possibly the NEPA and Executive Order 13352 of regime for activities in the Monument, oldest living coral atoll in the world, August 26, 2004, titled Facilitation of where necessary. and has healthy and abundant coral and Cooperative Conservation. • Determine if bioprospecting is fish populations. No previous CCP Public Involvement appropriate and compatible. planning occurred for the Johnston Atoll Next Steps and Wake Atoll Refuges. The FWS and NOAA will conduct the planning process in a manner that will The FWS and NOAA will be The MMP and CCP Planning Process provide participation opportunities for considering your comments during the The MMP’s format will include the public, Federal agencies, and other development of the Draft MMP/CCPs/ elements similar to a NWRS CCP, and interested parties. At this time, we EA. the planning process will be conducted encourage input in the form of issues, in a manner similar to the CCP planning concerns, ideas, and suggestions for the Public Availability of Comments and public involvement process for future management of the Monument Before including your address, phone those elements. The Refuge System and the Refuges. Opportunities for number, or other personal identifying Administration Act requires that a CCP additional public input will be information in your comment, you be developed for each national wildlife announced throughout the planning should be aware that your entire refuge or planning unit. The purpose for process. We may hold public meetings comment—including your personal

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identifying information—may be made agenda items include: A welcome and of Land Management (BLM) John Day- publicly available at any time. While introduction of new Council members; Snake Resource Advisory Council (RAC) you can ask us in your comments to BLM State Director’s update on BLM will meet as indicated below: withhold your personal identifying programs and issues; updates on the DATES: The RAC meeting will take place information from public review, we Arizona Water Strategy, Renewable on May 3 and May 4, 2011. cannot guarantee that we will be able to Energy Projects, BLM Wild Lands Policy ADDRESSES: The meeting will be held at do so. and the Northern Arizona Proposed The Dalles Inn, 112 West 2nd Street, Mineral Withdrawal Draft EIS; RAC Robyn Thorson, The Dalles, Oregon 97058. questions on BLM District Managers’ Regional Director, Region 1, Portland, Oregon. FOR FURTHER INFORMATION CONTACT: Reports; reports by the RAC working Margo Schultz-Haugen, Mark Wilkening, Public Affairs groups and other items of interest to the Specialist, BLM Vale District Office, 100 Acting Deputy Director, Office of Sustainable RAC. Members of the public are Fisheries, National Marine Fisheries Service. Oregon Street, Vale, Oregon 97918, welcome to attend the RAC Working (541) 473–6218 or e-mail [FR Doc. 2011–7962 Filed 4–4–11; 8:45 am] Group meetings on May 4, and the [email protected]. Persons who BILLING CODE 4310–55–P Business meeting on May 5. A half-hour use a telecommunications device for the public comment period, where the deaf (TDD) may call the Federal public may address the Council, is DEPARTMENT OF THE INTERIOR Information Relay Service (FIRS) at 1– scheduled on May 5 from 11:30 a.m. to 800–877–8339 to contact the above Bureau of Land Management Noon for any interested members of the individual during normal business public who wish to address the Council hours. The FIRS is available 24 hours a [LLAZ910000.L12100000. on BLM programs and business. day, 7 days a week, to leave a message XP0000LXSS150A00006100.241A] Depending on the number of persons or question with the above individual. State of Arizona Resource Advisory wishing to speak and time available, the You will receive a reply during normal Council Meetings time for individual comments may be business hours. limited. Written comments may be sent SUPPLEMENTARY INFORMATION: The AGENCY: Bureau of Land Management, to the Bureau of Land Management business meeting will take place from 8 Interior. address listed above. Final meeting a.m. to 5 p.m. on May 3, 2011, at The ACTION: Notice of public meetings. agendas will be available two weeks Dalles Inn, 112 West 2nd Street, The prior to the meeting dates and posted on Dalles, Oregon 97058. The agenda may SUMMARY: In accordance with the the BLM Web site at: http:// include such topics as: a presentation Federal Land Policy and Management www.blm.gov/az/st/en/res/rac.html. on the Environmental Impact Statement Act of 1976 and the Federal Advisory Individuals who need special assistance (EIS) being prepared for the Navy Committee Act of 1972, the U.S. such as sign language interpretation or Bombing Range at Boardman Oregon; an Department of the Interior, Bureau of other reasonable accommodations update on the Baker Resource Land Management (BLM), Arizona should contact the RAC Coordinator Management Plan; an update on The Resource Advisory Council (RAC) will listed above no later than two weeks John Day Resource Management Plan; meet in Phoenix, Arizona, as indicated before the start of the meeting. the Forest Service Blue Mountain Plan below. Under the Federal Lands Recreation revision; John Day Environmental DATES: Meetings will be held on May 4– Enhancement Act, the RAC has been Assessment (EA) and Permit System; 5, 2011, from 8 a.m. until 4:30 p.m. each designated as the Recreation Resource Status Report on the BLM Vegetation day. Advisory Council (RRAC), and has the EIS step-down to the District ADDRESSES: The meetings will be held at authority to review all BLM and Forest Treatments; information on the effects the BLM National Training Center Service (FS) recreation fee proposals in of the Department of the Interior’s Wild located at 9828 North 31st Avenue, Arizona. The RRAC will not review any Lands policy, a report by the Federal Phoenix, Arizona 85051. recreation fee proposals at this meeting. Managers on litigation, energy projects FOR FURTHER INFORMATION CONTACT: James G. Kenna, and other issues affecting their Districts; Dorothea Boothe, Arizona RAC Arizona State Director. an orientation for new members of the Coordinator at the Bureau of Land RAC; and other matters that may Management, Arizona State Office, One [FR Doc. 2011–7993 Filed 4–4–11; 8:45 am] reasonably come before the council. The North Central Avenue, Suite 800, BILLING CODE 4310–32–P public is welcome to attend all portions Phoenix, Arizona 85004–4427, 602– of the meeting and may make oral 417–9504. Persons who use a DEPARTMENT OF THE INTERIOR comments to the Council at 1 p.m. on telecommunications device for the deaf May 3, 2011. Those who verbally (TDD) may call the Federal Information Bureau of Land Management address the RAC are asked to provide a Relay Service (FIRS) at 1–800–877–8339 written statement of their comments or to contact the above individual during [LLORP00000.L10200000.DD0000; HAG 11– presentation. Unless otherwise normal business hours. The FIRS is 0187] approved by the RAC Chair, the public available 24 hours a day, 7 days a week, comment period will last no longer than to leave a message or question with the Notice of Public Meeting, John Day- Snake Resource Advisory Council 15 minutes, and each speaker may above individual. You will receive a address the RAC for a maximum of five reply during normal business hours. AGENCY: Bureau of Land Management, minutes. If reasonable accommodation SUPPLEMENTARY INFORMATION: The 15- Interior. is required, please contact the BLM Vale member Council advises the Secretary ACTION: Notice of public meeting. District Office at (541) 473–6218 as soon of the Interior, through the Bureau of as possible. A field trip is scheduled for Land Management, on a variety of SUMMARY: Pursuant to the Federal Land May 4, 2011; the RAC will view the planning and management issues Policy and Management Act and the proposed new State of Oregon associated with public land Federal Advisory Committee Act, the Campground, Cottonwood Canyon. In management in Arizona. Planned U.S. Department of the Interior, Bureau addition, the RAC members will have an

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opportunity to discuss issues DEPARTMENT OF THE INTERIOR DATES: The public meeting of the concerning the John Day River and Advisory Commission will be held on corridor. Bureau of Land Management Saturday, May 7, 2011, from 10 a.m. to 1 p.m. (Eastern). Debbie Henderson-Norton, [LLMT922200–11–L13100000–FI0000–P; MTM 89460, MTM 89461, MTM 89467 and Location: The meeting will be held at Prineville District Manager. MTM 89468] the Flight 93 National Memorial Office, [FR Doc. 2011–8079 Filed 4–4–11; 8:45 am] 109 West Main Street Suite 104, BILLING CODE 4310–33–P Notice of Proposed Reinstatement of Somerset, PA 15501. Terminated Oil and Gas Leases MTM 89460, MTM 89461, MTM 89467, and Agenda DEPARTMENT OF THE INTERIOR MTM 89468, Montana The May 7, 2011, will consist of: Bureau of Land Management AGENCY: Bureau of Land Management, 1. Opening of Meeting and Pledge of Interior. Allegiance 2. Review and Approval of Commission [LLNV9230000 L13100000.FI0000 241A; ACTION: Notice. NVN–78597; NVN–85277; NVN–85278; 11– Minutes from February 5, 2011. 08807; MO#4500019638; TAS: 14x1109] SUMMARY: Per 30 U.S.C. 188(d), Sleepy 3. Reports from the Flight 93 Memorial Hollow Oil & Gas, LLC timely filed a Task Force and National Park Notice of Proposed Reinstatement of petition for reinstatement of competitive Service. Terminated Oil and Gas Leases; oil and gas leases MTM 89460, MTM 4. Old Business Nevada 89461, MTM 89467, and MTM 89468, 5. New Business Fergus County, Montana. The lessee 6. Public Comments AGENCY: Bureau of Land Management, paid the required rentals accruing from 7. Closing Remarks Interior. the date of termination. FOR FURTHER INFORMATION CONTACT: ACTION: Notice. No leases were issued that affect these Keith E. Newlin, Superintendent, Flight lands. The lessee agrees to new lease 93 National Memorial, P. O. Box 911, SUMMARY: The Bureau of Land terms for rentals and royalties of $10 per Shanksville, PA 15560, 814–893–6322. Management (BLM) received a petition 2 acre and 16 ⁄3 percent. The lessee paid SUPPLEMENTARY INFORMATION: The for reinstatement from Makoil, Inc. and the $500 administration fee for the Piney Fork Production Co., for meeting will be open to the public. Any reinstatement of each lease and $163 member of the public may file with the competitive oil and gas leases NVN– cost for publishing this Notice. 78597, NVN–85277, and NVN–85278 on Commission a written statement The lessee met the requirements for concerning agenda items. Address all land in Nye County, Nevada. The reinstatement of the leases per Sec. 31 petition was timely filed and was statements to: Flight 93 Advisory (d) and (e) of the Mineral Leasing Act of Commission, P. O. Box 911, accompanied by all the rentals due 1920 (30 U.S.C. 188). We are proposing since the leases terminated under the Shanksville, PA 15560. Before including to reinstate the leases, effective the date your address, phone number, e-mail law. No valid leases have been issued of termination subject to: affecting the lands. • address, or other personal identifying The original terms and conditions information in your comment, you FOR FURTHER INFORMATION CONTACT: of the leases; should be aware that your entire Atanda Clark, BLM Nevada State Office, • The increased rental of $10 per comment—including your personal 775–861–6632, or e-mail: acre; identifying information—may be made [email protected]. • The increased royalty of 162⁄3 percent; and publicly available at any time. While SUPPLEMENTARY INFORMATION: The • The $163 cost of publishing this you can ask us in your comment to lessees have agreed to the amended Notice. withhold your personal identifying lease terms for rental and royalties at information from public review, we rates of $10 per acre or fraction thereof FOR FURTHER INFORMATION CONTACT: Teri cannot guarantee that we will be able to per year and 162⁄3 percent, respectively. Bakken, Chief, Fluids Adjudication do so. Section, Bureau of Land Management The lessees have paid the required $500 Dated: March 9, 2011. administrative fee for each lease and Montana State Office, 5001 Southgate Keith E. Newlin, have reimbursed the Department for the Drive, Billings, Montana 59101–4669, cost of this Federal Register notice. The 406–896–5091. Superintendent, Flight 93 National Memorial. [FR Doc. 2011–8085 Filed 4–4–11; 8:45 am] lessees have met all of the requirements Teri Bakken, BILLING CODE 4312–25–P for reinstatement of the leases as set out Chief, Fluids Adjudication Section. in Section 31(d) and (e) of the Mineral [FR Doc. 2011–8072 Filed 4–4–11; 8:45 am] Leasing Act of 1920 [30 U.S.C. 188], and BILLING CODE 4310–DN–P the BLM is proposing to reinstate the DEPARTMENT OF THE INTERIOR leases effective July 1, 2010 under the National Park Service original terms and conditions of the DEPARTMENT OF THE INTERIOR leases and the increased rental and [1730–SZM] royalty rates cited above. The BLM has National Park Service not issued a lease affecting the lands Cape Cod National Seashore; South encumbered by these leases to any other Flight 93 National Memorial Advisory Wellfleet, MA; Cape Cod National interest in the interim. Commission Seashore Advisory Commission Authority: 43 CFR 3108.2–3(a) and (b). AGENCY: National Park Service, Interior. AGENCY: National Park Service, Interior. ACTION: Gary Johnson, ACTION: Notice of May 7, 2011 Meeting. Two Hundred Seventy-Ninth Notice of Meeting. Deputy State Director, Minerals Management. SUMMARY: This notice sets forth the date [FR Doc. 2011–8073 Filed 4–4–11; 8:45 am] of the May 7, 2011, meeting of the Flight SUMMARY: Notice is hereby given in BILLING CODE 4310–HC–P 93 Advisory Commission. accordance with the Federal Advisory

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Committee Act (Pub. L. 92–463, 86 Stat. information from public review, we COLORADO 770, 5 U.S.C. App 1, Section 10) of a cannot guarantee that we will be able to Delta County meeting of the Cape Cod National do so. Seashore Advisory Commission. Paonia First Christian Church, 235 Box Elder FOR FURTHER INFORMATION CONTACT: Ave., Paonia, 11000218 DATES: The meeting of the Cape Cod Further information concerning the National Seashore Advisory meeting may be obtained from the Hinsdale County Commission will be held on May 23, Superintendent, Cape Cod National Lost Trail Station, 81125 Forest Service Rd. 2011, at 1 p.m. Seashore, 99 Marconi Site Road, 520, Creede, 11000219 ADDRESSES: The Commission members Wellfleet, MA 02667. INDIANA will meet in the meeting room at Dated: March 29, 2011. Porter County Headquarters, 99 Marconi Station, George E. Price, Jr., Solomon Enclave, 901, 903, 907 E. Lake Wellfleet, Massachusetts. Superintendent. Front Dr., Beverly Shores, 11000220 SUPPLEMENTARY INFORMATION: The [FR Doc. 2011–8087 Filed 4–4–11; 8:45 am] Commission was reestablished pursuant BILLING CODE 4310–WV–P MICHIGAN to Public Law 87–126 as amended by Public Law 105–280. The purpose of the Kalamazoo County Commission is to consult with the DEPARTMENT OF THE INTERIOR Haymarket Historic District (Boundary Secretary of the Interior, or his designee, Increase II), (Kalamazoo MRA) 105–141 E. with respect to matters relating to the National Park Service Michigan Ave., Kalamazoo, 11000221 development of Cape Cod National Wayne County [NPS–WASO–NRNHL–0311–7010; 2280– Seashore, and with respect to carrying Prentis Building and DeRoy Auditorium 665] out the provisions of sections 4 and 5 Complex, 5203 Cass Ave., Detroit, of the Act establishing the Seashore. 11000222 The regular business meeting is being National Register of Historic Places; held to discuss the following: Notification of Pending Nominations MISSOURI and Related Actions 1. Adoption of Agenda St. Louis County 2. Approval of Minutes of Previous Nominations for the following Medart’s 7036 Clayton Ave., St. Louis, Meeting properties being considered for listing 09000410 (March 14, 2011) or related actions in the National MONTANA 3. Reports of Officers Register were received by the National 4. Reports of Subcommittees Park Service before March 19, 2011. Carbon County • Nickerson Fund discussion Pursuant to section 60.13 of 36 CFR Part Bluewater Creek Bridge, (Reinforced 5. Superintendent’s Report 60, written comments are being Concrete Bridges in Montana, 1900–1958 Update on Dune Shacks accepted concerning the significance of MPS) Milepost 8 on Bluewater Cr. Rd., Improved Properties/Town Bylaws the nominated properties under the Fromberg, 11000223 Herring River Wetland Restoration National Register criteria for evaluation. Dawson County Wind Turbines/Cell Towers Comments may be forwarded by United Flexible Shorebird Management States Postal Service, to the National Bad Route Creek Bridge, (Reinforced Highlands Center Update Register of Historic Places, National Concrete Bridges in Montana, 1900–1958 Alternate Transportation funding MPS) Milepost 20 on Cnty. Rd. 261, Fallon, Park Service, 1849 C St., NW., MS 2280, Ocean stewardship topics—shoreline 11000224 change Washington, DC 20240; by all other Lewis and Clark County Climate Friendly Park program update carriers, National Register of Historic 50th Anniversary Places, National Park Service, 1201 Eye Sheep Creek Bridge, (Reinforced Concrete 6. Old Business St., NW., 8th floor, Washington DC Bridges in Montana, 1900–1958 MPS) 7. New Business 20005; or by fax, 202–371–6447. Written Milepost 5 on Recreation Rd., Wolf Creek, 8. Date and agenda for next meeting or faxed comments should be submitted 11000225 9. Public comment and by April 20, 2011. Before including your Park County address, phone number, e-mail address, 10. Adjournment Carter Bridge, (Reinforced Concrete Bridges The meeting is open to the public. It or other personal identifying information in your comment, you in Montana, 1900–1958 MPS) Milepost is expected that 15 persons will be able 31.6 on MT 540, Livingston, 11000226 to attend the meeting in addition to should be aware that your entire Commission members. comment—including your personal Powell County Interested persons may make oral/ identifying information—may be made Conley Street Bridge, (Reinforced Concrete written presentations to the Commission publicly available at any time. While Bridges in Montana, 1900–1958 MPS) during the business meeting or file you can ask us in your comment to Clark Fork R. Crossing on Conley St., Deer written statements. Such requests withhold your personal identifying Lodge, 11000227 information from public review, we should be made to the park NEW YORK superintendent prior to the meeting. cannot guarantee that we will be able to Bronx County Before including your address, phone do so. Dollar Savings Bank, 2792 3rd. Ave., Bronx, number, e-mail address, or other J. Paul Loether, 11000228 personal identifying information in your Chief, National Register of Historic Places/ comment, you should be aware that National Historic Landmarks Program. Kings County your entire comment—including your CALIFORNIA Wallabout Historic District, 73–83 & 123–141 personal identifying information—may Cleremont; 74–148 & 75–143 Clinton; 381– be made publicly available at any time. San Diego County 387, 403–421 & 455–461 Myrtle; 74–132 & While you can ask us in your comment Peterson, Capt. & Mrs. A.J., House, 1010 69–149 Vanderbilt Aves., Brooklyn, to withhold your personal identifying Glorietta Blvd., Coronado, 11000217 11000229

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Westchester County DATES: Written comments on the Initial efforts in the mid-1980s (Phase Presbyterian Rest for Convalescents, 69 N. proposal, reasonable alternatives to the 1) focused on improving fish passage by Broadway, White Plains, 11000230 proposal, potential environmental rebuilding fish ladders and constructing OHIO impacts, and mitigation measures will fish screens at existing diversions. Phase be accepted through May 19, 2011 for 2 in the 1990s focused on water Cuyahoga County inclusion in the scoping summary conservation/water acquisition Stanley Block 2115–2121 Ontario St., document. activities, tributary fish screens, and Cleveland, 94000591 Scoping meetings, preceded by open long-term management needs. Efforts PENNSYLVANIA houses, will be held at the following under these initial phases were communities, dates, and times: hindered by the ongoing uncertainties Pike County • Ellensburg, Washington; May 3, associated with adjudication of the Grey, Zane, House (Boundary Increase), 135 2011; open house and scoping meeting basin surface waters that began in 1978. Lackawaxen Scenic Dr., Lackawaxen, 1:30 to 3:30 pm and again from 5 to 7 With the adjudication process now 11000231 pm. largely completed, most of these water TEXAS • Yakima, Washington; May 5, 2011; right uncertainties have been addressed. open house and scoping meeting 1:30 to Palo Pinto County In 2003, Reclamation and Ecology 3:30 pm and again from 5 to 7 pm. initiated the Yakima River Basin Water Gallagher House, 2729 Union Hill Rd., Requests for sign language Mineral Wells, 11000232 Storage Feasibility Study to examine interpretation for the hearing impaired storage augmentation in the Yakima UTAH or other special assistance needs should River basin. This study emphasized be submitted by April 26, 2011. Morgan County evaluation of a proposed Black Rock ADDRESSES: Send written scoping Reservoir, which was the focus of the South Round Valley School, 1925 E. Round comments, requests to be added to the Valley Rd., Morgan, 11000233 Yakima River Basin Water Storage mailing list, or requests for sign Feasibility Study Draft Planning Report/ Salt Lake County language interpretation for the hearing Environmental Impact Statement (PR/ Westmoreland Place Historic District, impaired or other special assistance EIS) issued in January 2008. Roughly bounded by 1300 South, 1500 needs, to Bureau of Reclamation, The narrow focus of the legislative East, Sherman Ave. & 1600 East Sts., Salt Columbia-Cascades Area Office, Lake City, 11000234 authorization in combination with Attention: Candace McKinley, comments on the Draft PR/EIS Sanpete County Environmental Program Manager, 1917 prompted Ecology to separate from the Poulson—Hall House, 90 S. 100 East, Manti, Marsh Road, Yakima, WA 98901; or by National Environmental Policy Act 11000235 e-mail to [email protected]. (NEPA) process. In mid-2008, Ecology The Ellensburg open house and [FR Doc. 2011–7974 Filed 4–4–11; 8:45 am] initiated a separate evaluation of the scoping meetings will be held at the Hal Yakima basin’s water supply problems, BILLING CODE 4312–51–P Holmes Center, 209 N. Ruby Street, including consideration of habitat and Ellensburg, Washington 98926. The fish passage needs. Reclamation Yakima open house and scoping DEPARTMENT OF THE INTERIOR continued the NEPA process consistent meetings will be held at the Yakima with its legislative authorization and Area Arboretum, 1401 Arboretum Way, Bureau of Reclamation issued the Yakima River Basin Water Yakima, Washington 98901. The Storage Feasibility Study Final PR/EIS Integrated Water Resource meeting facilities are physically in December 2008. Following issuance Management Plan, Yakima River Basin accessible to people with disabilities. of the Final PR/EIS, Reclamation Water Enhancement Project, Benton, Information on this project may also selected the No Action Alternative. Kittitas, Klickitat, and Yakima be found at http://www.usbr.gov/pn/ Ecology completed its study and issued Counties, Washington programs/yrbwep/index.html. a separate Final Environmental Impact FOR FURTHER INFORMATION CONTACT: Statement (FEIS) for the Yakima River AGENCY: Bureau of Reclamation, Contact Candace McKinley, Interior. Basin Integrated Water Resource Environmental Program Manager, Management Alternative in June 2009 ACTION: Notice of intent to prepare a Telephone (509) 575–5848, ext. 237. under SEPA. combined planning report and TTY users may dial 711 to obtain a toll- The Integrated Water Resource programmatic environmental impact free TTY relay. Management Alternative evaluated in statement, and notice of scoping SUPPLEMENTARY INFORMATION : the Ecology FEIS relies upon a range of meetings. Background water management and habitat improvement approaches comprised of SUMMARY: The Bureau of Reclamation In 1979, Congress initiated the seven major elements to resolve the (Reclamation) proposes to prepare a Yakima River Basin Water Enhancement long-standing water resource problems combined Planning Report and Project (YRBWEP) in response to long- in the basin. Elements of the Integrated Programmatic Environmental Impact standing water resource problems in the Water Resource Management Plan that Statement (EIS) on the Integrated Water basin. The YRBWEP was charged with will be analyzed in the Programmatic Resource Management Plan, Yakima developing a plan to achieve four EIS include, but are not limited to: River Basin Water Enhancement Project. objectives: (1) Provide supplemental The Washington State Department of water for presently irrigated lands; (2) 1. Fish Passage (fish passage Ecology (Ecology) will be a joint lead provide water for new lands within the improvements at Cle Elum, Bumping, agency with Reclamation in the Yakama Indian Reservation; (3) provide Clear Lake, Keechelus, Kachess, and preparation of this Programmatic EIS, water for increased instream flows for Tieton Dams); which will also be used to comply with aquatic life; and (4) identify a 2. Structural/Operational Changes requirements of the Washington State comprehensive approach for efficient (subordination of power generation at Environmental Policy Act (SEPA). management of basin water supplies. Roza and Chandler Power Plants);

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3. Surface Storage (new Wymer Dam personal identifying information—may E (19 CFR part 201), and part 207, and Reservoir, Bumping Reservoir be made publicly available at any time. subparts A and B (19 CFR part 207). enlargement, Kachess inactive storage); While you may ask us in your comment DATES: Effective Date: March 30, 2011. 4. Groundwater Storage (groundwater to withhold your personal identifying FOR FURTHER INFORMATION CONTACT: infiltration prior to storage control); information from public review, we Mary Messer (202–205–3193) or Douglas 5. Fish Habitat (mainstem floodplain cannot guarantee that we will be able to Corkran (202–205–3057), Office of restoration program); do so. Investigations, U.S. International Trade 6. Enhanced Water Conservation Commission, 500 E Street SW., (agricultural water and municipal/ Dated: March 29, 2011. Washington, DC 20436. Hearing- domestic conservation); and Steven L. Brawley, 7. Market-Based Reallocation of Water Acting Regional Director, Pacific Northwest impaired persons can obtain Resources (institutional improvements Region. information on this matter by contacting to facilitate market-based water [FR Doc. 2011–7969 Filed 4–4–11; 8:45 am] the Commission’s TDD terminal on 202– 205–1810. Persons with mobility transfers). BILLING CODE 4310–MN–P The proposed plan may affect Indian impairments who will need special trust assets of the Yakama Nation and assistance in gaining access to the the Confederated Tribes of the Umatilla INTERNATIONAL TRADE Commission should contact the Office Indian Reservation. There are no known COMMISSION of the Secretary at 202–205–2000. adverse or significant impacts to General information concerning the [Investigation Nos. 701–TA–478 and 731– Commission may also be obtained by minority or low-income populations or TA–1182 (Preliminary)] communities associated with this accessing its Internet server (http:// www.usitc.gov). The public record for proposal. Certain Steel Wheels From China Reclamation is requesting early public these investigations may be viewed on comment and agency input to help AGENCY: United States International the Commission’s electronic docket identify significant issues and Trade Commission. (EDIS) at http://edis.usitc.gov. alternatives to be addressed in the ACTION: Institution of antidumping and SUPPLEMENTARY INFORMATION: Programmatic EIS. Information obtained countervailing duty investigations and Background.—These investigations during the scoping period will help in scheduling of preliminary phase are being instituted in response to a developing information to be included investigations. petition filed on March 30, 2011, by in the Programmatic EIS. A Draft Accuride Corp., Evansville, IN, and Programmatic EIS is expected to be SUMMARY: The Commission hereby gives Hayes Lemmerz International, Inc., issued in winter of 2011, followed by an notice of the institution of investigations Northville, MI. opportunity for public and agency and commencement of preliminary Participation in the investigations and review and comment. The Final phase antidumping and countervailing public service list.—Persons (other than Programmatic EIS is anticipated for duty investigations Nos. 701–TA–478 petitioners) wishing to participate in the completion in spring of 2012. A Record and 731–TA–1182 (Preliminary) under investigations as parties must file an of Decision, describing which sections 703(a) and 733(a) of the Tariff entry of appearance with the Secretary alternative is selected for Act of 1930 (19 U.S.C. 1671b(a) and to the Commission, as provided in implementation, and the rationale for its 1673b(a)) (the Act) to determine sections 201.11 and 207.10 of the selection, would then be issued whether there is a reasonable indication Commission’s rules, not later than seven following a 30-day waiting period. that an industry in the United States is days after publication of this notice in materially injured or threatened with the Federal Register. Industrial users Public Involvement material injury, or the establishment of and (if the merchandise under Reclamation and Ecology will an industry in the United States is investigation is sold at the retail level) conduct public scoping meetings to materially retarded, by reason of representative consumer organizations solicit comments on the alternatives for imports from China of certain steel have the right to appear as parties in the Integrated Water Resource wheels, provided for in subheading Commission antidumping and Management Plan, and to identify 8708.70 of the Harmonized Tariff countervailing duty investigations. The potential issues and impacts associated Schedule of the United States, that are Secretary will prepare a public service with those alternatives. Reclamation alleged to be sold in the United States list containing the names and addresses and Ecology will summarize comments at less than fair value and alleged to be of all persons, or their representatives, received during the scoping meetings subsidized by the Government of China. who are parties to these investigations and from letters of comment received Unless the Department of Commerce upon the expiration of the period for during the scoping period, identified extends the time for initiation pursuant filing entries of appearance. under the DATES section, into a scoping to sections 702(c)(1)(B) or 732(c)(1)(B) of Limited disclosure of business summary document that will be made the Act (19 U.S.C. 1671a(c)(1)(B) or proprietary information (BPI) under an available to those who have provided 1673a(c)(1)(B)), the Commission must administrative protective order (APO) comments. It will also be available to reach a preliminary determination in and BPI service list.—Pursuant to others upon request. If you wish to antidumping and countervailing duty section 207.7(a) of the Commission’s comment, you may provide your investigations in 45 days, or in this case rules, the Secretary will make BPI comments as indicated under the by May 16, 2011. The Commission’s gathered in these investigations ADDRESSES section. views are due at Commerce within five available to authorized applicants business days thereafter, or by May 23, representing interested parties (as Public Disclosure 2011. defined in 19 U.S.C. 1677(9)) who are Before including your name, address, For further information concerning parties to the investigations under the phone number, e-mail address, or other the conduct of these investigations and APO issued in the investigations, personal identifying information in your rules of general application, consult the provided that the application is made comment, you should be aware that Commission’s Rules of Practice and not later than seven days after the your entire comment—including your Procedure, part 201, subparts A through publication of this notice in the Federal

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Register. A separate service list will be By order of the Commission. Warmwater Shrimp From Brazil, China, maintained by the Secretary for those Issued: March 31, 2011. India, Thailand, and Vietnam: parties authorized to receive BPI under James R. Holbein, Investigation Nos. 1063, 1064, 1066– the APO. Acting Secretary to the Commission. 1068 (Review). Conference.—The Commission’s [FR Doc. 2011–7997 Filed 4–4–11; 8:45 am] By order of the Commission. Director of Investigations has scheduled BILLING CODE 7020–02–P a conference in connection with these Issued: March 30, 2011. investigations for 8:45 a.m. on April 20, James R. Holbein, Acting Secretary to the Commission. at the U.S. International Trade INTERNATIONAL TRADE Commission Building, 500 E Street SW., COMMISSION [FR Doc. 2011–7996 Filed 4–4–11; 8:45 am] Washington, DC. Requests to appear at BILLING CODE P the conference should be filed in [Investigation Nos. 731–TA–1063, 1064, writing with the Secretary to the 1066–1068 (Review)] Commission on or before April 18, 2011. Frozen Warmwater Shrimp From DEPARTMENT OF JUSTICE Parties in support of the imposition of Brazil, China, India, Thailand, and antidumping and countervailing duties Notice of Lodging of Consent Decree Vietnam in these investigations and parties in Under the Comprehensive opposition to the imposition of such Determinations Environmental Response, duties will each be collectively Compensation and Liability Act On the basis of the record 1 developed allocated one hour within which to in the subject five-year reviews, the Notice is hereby given that on March make an oral presentation at the United States International Trade 18, 2011, a proposed Consent Decree in conference. A nonparty who has Commission (Commission) determines, United States v. Exxon Mobil testimony that may aid the pursuant to section 751(c) of the Tariff Corporation, et al., C.A. No. 4:11–cv– Commission’s deliberations may request Act of 1930 (19 U.S.C. 1675(c)), that 01037 (S.D. Tex.), was lodged with the permission to present a short statement revocation of the antidumping duty at the conference. United States District Court for the Written submissions.—As provided in orders on frozen warmwater shrimp Southern District of Texas. The Consent sections 201.8 and 207.15 of the from Brazil, China, India, Thailand, and Decree resolves the United States’ Commission’s rules, any person may Vietnam would be likely to lead to claims for response costs against a submit to the Commission on or before continuation or recurrence of material number of defendants, pursuant to April 25, 2011, a written brief injury to an industry in the United Section 107(a)(3) of the Comprehensive containing information and arguments States within a reasonably foreseeable Environmental Response, 2 pertinent to the subject matter of the time. Compensation, and Liability Act (‘‘CERCLA’’), 42 U.S.C. 9607(a)(3). The investigations. Parties may file written Background testimony in connection with their complaint filed simultaneously with the The Commission instituted these presentation at the conference no later lodging of the Consent Decree names as reviews on January 4, 2010 (75 FR 1078, than three days before the conference. If defendants Exxon Mobil Corporation, January 8, 2010) and determined on briefs or written testimony contain BPI, Ashland, Inc., Eurecat U.S. they must conform with the April 9, 2010 that it would conduct full Incorporated, Akzo Nobel, Inc., Flint requirements of sections 201.6, 207.3, reviews (75 FR 22424, April 28, 2010). Hills Resources, LP, Irving Oil Limited, and 207.7 of the Commission’s rules. Notice of the scheduling of the ConocoPhillips Company, Texaco, Inc., The Commission’s rules do not Commission’s reviews and of a public and Chevron U.S.A., Inc. The claims authorize filing of submissions with the hearing to be held in connection against the defendants relate to response Secretary by facsimile or electronic therewith was given by posting copies costs incurred by the United States in means, except to the extent permitted by of the notice in the Office of the connection with response activities section 201.8 of the Commission’s rules, Secretary, U.S. International Trade taken with respect to the Many as amended, 67 FR 68036 (November 8, Commission, Washington, DC, and by Diversified Interests Site, at Operable 2002). Even where electronic filing of a publishing the notice in the Federal Unit 1 (‘‘OU–1’’), located in Houston, document is permitted, certain Register on August 11, 2010 (75 FR Texas. Specifically, the United States’ documents must also be filed in paper 48724). The hearing was held in complaint alleges that the defendants form, as specified in II (C) of the Washington, DC, on February 1, 2011, sent spent catalyst that contained Commission’s Handbook on Electronic and all persons who requested the hazardous substances, including, but Filing Procedures, 67 FR 68168, 68173 opportunity were permitted to appear in not limited to nickel and molybdenum, (November 8, 2002). person or by counsel. to OU–1 for disposal or treatment. In accordance with sections 201.16(c) The Commission transmitted its Under the Consent Decree, the and 207.3 of the rules, each document determinations in these reviews to the defendants will pay the United States filed by a party to the investigations Secretary of Commerce on March 30, $1,750,000 in reimbursement of a must be served on all other parties to 2011. The views of the Commission are portion of the response costs incurred the investigations (as identified by contained in USITC Publication 4221 by the United States in connection with either the public or BPI service list), and (March 2011), entitled Frozen OU–1. a certificate of service must be timely The Department of Justice will receive 1 The record is defined in sec. 207.2(f) of the for a period of thirty (30) days from the filed. The Secretary will not accept a Commission’s Rules of Practice and Procedure (19 document for filing without a certificate CFR 207.2(f)). date of this publication comments of service. 2 Commissioner Daniel R. Pearson determines relating to the Consent Decree. that revocation of the antidumping duty orders Comments should be addressed to the Authority: These investigations are being covering frozen warmwater shrimp from Brazil, Assistant Attorney General, conducted under authority of title VII of the China, India, Thailand, and Vietnam would not be Tariff Act of 1930; this notice is published likely to lead to continuation or recurrence of Environment and Natural Resources pursuant to section 207.12 of the material injury to an industry in the United States Division, and either e-mailed to Commission’s rules. within a reasonably foreseeable time. [email protected], or

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mailed to P.O. Box 7611, U.S. Copies of the Complaint, proposed Dean acquired two dairy processing Department of Justice, Washington, DC Final Judgment and Competitive Impact plants owned by Foremost, located in 20044–7611, and should refer to United Statement are available for inspection at Waukesha and DePere, Wisconsin. States v. Exxon Mobil Corporation, et the Department of Justice, Antitrust Dean’s acquisition of these plants al., DOJ Reference No. 90–11–3–09228. Division, Antitrust Documents Group, violates Section 7 of the Clayton Act The Consent Decree may be examined 450 Fifth Street, NW., Suite 1010, because ‘‘the effect of such acquisition at the U.S. EPA Region 6, 1445 Ross Washington, DC 20530 (telephone: 202– may be substantially to lessen Avenue, Suite 1200, Dallas, Texas 514–2481), on the Department of competition.’’ 15 U.S.C. 18. 75202. During the public comment Justice’s Web site at http:// 2. The Acquisition adversely affects period, the Consent Decree may also be www.usdoj.gov/atr, and at the Office of two types of markets. The first are the examined on the following Department the Clerk of the United States District markets for the sale of school milk to of Justice Web site: http:// Court for the Eastern District of individual school districts located www.usdoj.gov/enrd/Consent_ Wisconsin. Copies of these materials throughout the State of Wisconsin and Decrees.html. A copy of the Consent may be obtained from the Antitrust the Upper Peninsula of Michigan (the Decree may also be obtained by mail Division upon request and payment of ‘‘UP’’). The second is the market for the from the Consent Decree Library, P.O. the copying fee set by Department of sale of fluid milk to purchasers located Box 7611, U.S. Department of Justice, Justice regulations. in Wisconsin, the UP, and northeastern Washington, DC 20044–7611, or by Public comment is invited within 60 Illinois.1 faxing or e-mailing a request to Tonia days of the date of this notice. Such 3. The Acquisition eliminates one of Fleetwood ([email protected]), comments, and responses thereto, will Dean’s most aggressive competitors—a fax no. (202) 514–0097, phone be published in the Federal Register competitor that engaged in pricing that confirmation number (202) 514–1547. In and filed with the Court. Comments Dean considered ‘‘dangerous’’ and requesting a copy of the Consent Decree should be directed to Joshua H. Soven, ‘‘irrational.’’ In recent years, Dean and from the Consent Decree Library, please Chief, Litigation I, Antitrust Division, Foremost have been the first and fourth enclose a check in the amount of $7.25 Department of Justice, Washington DC, largest sellers of school milk and fluid (25 cents per page production costs), 20530. milk in Wisconsin, the UP, and payable to the U.S. Treasury or, if Patricia A. Brink, northeastern Illinois. With the Acquisition, Dean will account for more requesting by e-mail or fax, forward a Director of Civil Enforcement. check in that amount to the Consent than 57 percent of fluid milk sales in the Decree Library at the stated address. In the United States District Court for region. In the most recent school year, the Eastern District of Wisconsin Dean and the two plants it acquired sold Thomas A. Mariani, Jr., Milwaukee Division more than 50 percent of the school milk Assistant Chief, Environmental Enforcement United States of America, State of purchased in Wisconsin and the UP. Section, Environment and Natural Resources 4. Numerous school districts have Division. Wisconsin, State of Illinois, and State of Michigan, benefitted from vigorous competition [FR Doc. 2011–7977 Filed 4–4–11; 8:45 am] between Dean and Foremost. Dean and BILLING CODE 4410–15–P Plaintiffs, Foremost have frequently been the two v. lowest bidders for school milk contracts at numerous school districts in DEPARTMENT OF JUSTICE Dean Foods Company, Wisconsin and the UP and, in some school districts, have been the only two Antitrust Division Defendant. bidders for those contracts. 10–C–0059 FILED: January 22, 2010; 5. Grocery stores, convenience stores, United States et al. v. Dean Foods 1:40PM Company; Proposed Final Judgment, and other purchasers have also Stipulation and Competitive Impact Complaint benefitted from vigorous competition Statement The United States of America, acting between Dean and Foremost for fluid under the direction of the Attorney milk contracts. Dean and Foremost have Notice is hereby given pursuant to the General of the United States, and the been the only two bidders for some Antitrust Procedures and Penalties Act, States of Wisconsin, Illinois, and contracts and two of only three bidders 15 U.S.C. 16(b)–(h), that a proposed Michigan, by and through their for other contracts. The aggressive Final Judgment, Stipulation and respective Attorneys General (‘‘Plaintiff competition between them has lowered Competitive Impact Statement have States’’), bring this civil action for purchasers’ costs. For example, in 2006, been filed with the United States equitable relief against Defendant Dean a retailer with hundreds of stores in District Court for the Eastern District of Foods Company (‘‘Dean’’) for violating northeastern Illinois held an auction for Wisconsin in United States of America, Section 7 of the Clayton Act, 15 U.S.C. its fluid milk business in which the et al. v. Dean Foods Company, Civil 18. The United States and the Plaintiff competition between Dean and Action No. 2:10–cv–00059 (JPS). On States allege as follows: Foremost saved the retailer January 22, 2010, the United States and approximately $1.5 million. its co-plaintiffs filed a Complaint I. Introduction 6. The Acquisition’s elimination of alleging that Dean Foods Company’s 1. This lawsuit challenges Dean’s head-to-head competition between Dean acquisition of the Consumer Products acquisition of the Consumer Products and Foremost will hurt school milk and Division of Foremost Farms USA would Division of Foremost Farms USA, fluid milk purchasers. The loss of this likely violate Section 7 of the Clayton consummated April 1, 2009 (the head-to-head competition leads directly Act, 15 U.S.C. 18. The proposed Final ‘‘Acquisition’’). Foremost Farms USA Judgment requires Dean Foods (‘‘Foremost’’) is a dairy cooperative 1 ‘‘Northeastern Illinois’’ is defined as the following counties in the State of Illinois: Cook Company to divest its Waukesha, owned by approximately 2,300 dairy County, DeKalb County, DuPage County, Grundy Wisconsin fluid milk plant, along with farms located in seven states, including County, Kane County, Kendall County, Lake certain tangible and intangible assets. Wisconsin. Through the Acquisition, County, McHenry County, and Will County.

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to what are referred to as 1391(b)(1), (b)(2) & (c). The acquired life and is costly to transport. These anticompetitive ‘‘unilateral effects.’’ dairy processing plant in Waukesha is costs result in most customers 7. In the fluid milk market, the located within the territory of the purchasing fluid milk from nearby Acquisition is also likely to produce Milwaukee Division of this Court. processing plants. For example, more coordination among the remaining than 90 percent of the milk sold to competitors. This coordination gives III. Background customers in Wisconsin and the UP rise to what are referred to as A. The Milk Business in Wisconsin, the traveled less than 150 miles from the anticompetitive ‘‘coordinated effects.’’ UP, and Northeastern Illinois plant in which it was processed. The fluid milk business in this region is 12. Dairy processors purchase raw already conducive to coordination 2. School Milk milk from dairy farms and agricultural among competitors. Notably, when 16. School milk is fluid milk cooperatives, pasteurize and package deciding whether and how much to bid packaged and distributed for sale to for an account, Dean and other dairy the milk, and distribute and sell the school districts, typically in half-pint processors often consider the reactions processed product. Fluid milk is raw containers. Dean, Foremost, and other of their competitors. Eliminating milk that has been processed for human school milk suppliers often use Foremost, which Dean describes as an consumption. It does not include distributors to supply and service ‘‘irrational’’ pricing competitor, will extended shelf life milk, ultra high school districts. Dairy processors leave only a few remaining competitors, temperature milk or aseptic milk, which generally use one distributor per service whose competitive decision-making are produced by different processes, area. While school milk contracts Dean has described as ‘‘more generally cost significantly more than occasionally include other products, predictable’’ and ‘‘rational.’’ fluid milk, and have numerous school milk accounts for the vast Consequently, the Acquisition will significant physical differences that, majority of the dollar value of these make coordination easier and more compared with fluid milk, affect shelf contracts. durable. stability and taste. 17. School milk delivery is not just a 8. As further described below, the 1. Fluid Milk matter of dropping product off at the Acquisition is likely to substantially curb. Different school districts specify lessen competition in the school milk 13. Dairy processors supply fluid milk their individualized service and fluid milk markets at issue here in directly to retailers, distributors, broad- requirements in contracts with violation of Section 7 of the Clayton line food service companies, and processors. For example, some school Act, 15 U.S.C. 18. Entry is unlikely to institutions such as hospitals and districts require multiple deliveries per restore competition in a timely or nursing homes. The vast majority of week because they have limited sufficient manner. To date, Dean has not fluid milk is sold directly by processors refrigerated storage space; some require integrated Foremost’s plants into its to retailers. The balance of sales is made guaranteed emergency deliveries. Most operations in light of the pendency of to distributors, food service companies, school districts require the capability to the United States’ investigation. The and institutions. Distributors and food deliver to all of the schools in the United States and Plaintiff States ask service companies resell the milk that district. Many require early morning or this Court to declare this Acquisition they purchase from processors to small other specific delivery times to avoid unlawful and require Dean to divest the retailers, restaurants, and institutions. conflicts with the arrival of acquired assets to restore competition in Retailers in Wisconsin, the UP, and schoolchildren and buses. Other the markets at issue. northeastern Illinois do not resell fluid services can include milk reordering, milk to other retailers or institutions in cooler supply, cooler restocking, cooler II. Jurisdiction & Venue any substantial quantity. Retail demand cleaning and maintenance, carton 9. The United States brings this action for fluid milk is based directly on rotation, retrieval of spoiled and under Section 15 of the Clayton Act, as consumer demand. damaged product, and automatic amended, 15 U.S.C. 4 and 25. The 14. Milk processors charge different allotment of credit for retrieved product. Plaintiff States bring this action under prices to different purchasers for the 18. The number of processors from Section 16 of the Clayton Act, 15 U.S.C. same product based on a variety of which a school district can successfully 26. Plaintiff State of Wisconsin brings factors, including the number of solicit competitive bids is often very this action under its authority in Wis. competitive alternatives available to the small. Given the limited volume of milk Stat. § 165.065. purchaser. Large retailers typically delivered to each school, the extensive 10. Dean and the assets it obtained request bids from milk processors. and highly individualized service through the Acquisition produce dairy Distributors, institutions, and small requirements, and the seasonal nature of products for sale in interstate retailers generally purchase their milk school milk demand, among other commerce. Accordingly, Dean and the from price lists that dairy processors considerations, it is almost always Acquisition assets are engaged in issue. However, these customers uneconomic for a dairy processor to activities affecting interstate commerce sometimes obtain rebates, discounts, or supply a new contract unless the under Section 7 of the Clayton Act. The other forms of price relief, so that two processor already has significant fluid Court has subject matter jurisdiction customers covered by the same price list milk distribution in or near the school over this action pursuant to Section 15 may pay different prices. Bid prices are district’s area. Dairy processors that do of the Clayton Act, as amended, 15 based on the processor’s product, not already distribute fluid milk locally U.S.C. 25, and 28 U.S.C. 1331, 1337(a) transportation, and service costs, the can rarely bid competitively. This is and 1345. processor’s capacity utilization, and the particularly relevant in sparsely 11. Dean is present in the State of number and strength of processors populated areas such as northern Wisconsin, and it transacts substantial likely to offer competing bids, among Wisconsin and the UP. business and commerce in the State. other factors. 19. Individual school districts solicit Accordingly, Dean is subject to personal 15. Distance between processors and bids for school milk, although groups of jurisdiction. Venue is also proper in this purchasers is an important school districts will occasionally solicit District pursuant to Section 12 of the consideration in fluid milk pricing bids collectively. However, even school Clayton Act, 15 U.S.C. 22, and 28 U.S.C. because fluid milk has a limited shelf districts involved in collective

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solicitations typically award their Dean did not have substantial excess pricing coming from [Foremost]’’ and contracts separately. Consequently, capacity and so did not have the same that he was ‘‘worried about them coming dairy processors tailor their bids to each economic incentives as Foremost. As a at us again at [WalMart] not to mention school district or school district group result of Foremost’s aggressive pricing, the rest of the market.’’ In 2009, after that solicits collectively. Bid prices are Dean faced the choice of losing business receiving reports of very low Foremost based on the processor’s product, or cutting its margins. Neither approach prices in several grocery and transportation, and service costs, the was attractive to Dean. convenience stores in the UP, the processor’s capacity utilization, and the 25. The problem that Foremost posed general manager of Dean’s Marquette, number and competitiveness of was not unique. Dean saw competitors Michigan, plant complained to his boss processors likely to offer competing such as Foremost and other local that ‘‘[t]his is the most aggressive pricing bids, among other factors. competitors with excess capacity as the UP has seen since probably the 60’s. posing a serious problem for Dean’s B. The Acquisition Our volume is off roughly 15 percent as profitability. Dean’s Chief Executive the effects of this onslaught really kick 20. Dean is one of the largest food and Officer, Gregg Engles, articulated the in * * * I know you’re with me on this, beverage producers in this country, with competitive issue facing Dean in a so how can we cease/desist and regain revenues of $12.5 billion in 2008. September 2008 speech to Dean’s top some sanity?’’ Dean’s Dairy Group is the country’s executives: 30. As part of Dean’s 2008 Strategic largest processor and distributor of milk 26. Growth Plan, Dean proposed future and other dairy products. Dean is a ‘‘Every one of you has an irrational local acquisitions, which included corporation organized under Delaware competitor story. * * * Why do we have problematic local processors. Ed Fugger, state law, with its principal place of irrational local competitors? Because we have Dean’s acquisitions chief, highlighted business in Dallas, Texas. too much capacity in this industry * * * that fragmentation ‘‘[d]rives margin 21. The Acquisition is the latest in a these guys are losing share, * * * they have compression,’’ and that a significant part series of acquisitions by Dean of smaller less volume in their plants, * * * so they of the fluid milk market ‘‘remains highly default to the same game that gets played in dairy processors across the United fragmented.’’ In handwritten notes he States. Since 1996, Dean has made more industries that have little volume growth and too much capacity everywhere around the wrote in preparation for his speech to than 100 acquisitions, which have Dean’s senior management, and later, added to Dean’s market share and world. People play for share, and in this category, you play for share with price.’’ Dean’s Board of Directors, Fugger wrote increased its size substantially. that the ‘‘benefit of acquisition in these 22. Foremost is a dairy cooperative 27. Dean’s own internal documents m[ar]k[e]ts is margin expansion’’ headquartered in Baraboo, Wisconsin, confirm that Dean viewed Foremost as (emphasis added). In other words, by and formed under Wisconsin state law. one of those ‘‘irrational’’ local eliminating this fragmentation Dean Like other agricultural cooperatives, competitors because of Foremost’s could increase its profits. Foremost is a member-owned business excess capacity, among other reasons. In 2008, as part of an effort to develop a 31. The Strategic Growth Plan association. Foremost is governed by a included ‘‘Potential Acquisition Targets’’ 21-member Board of dairy farmers. Prior strategic growth plan for its fluid milk business, Dean’s corporate headquarters for each of Dean’s regions. The targets to the Acquisition, Foremost processed for the North Central Region included its members’ raw milk at its DePere and asked the group vice presidents in each region to prioritize their key competitive Foremost, which Dean had identified as Waukesha plants, as well as at other ‘‘ ’’ issues. The Vice President for the North one of two irrational competitors that facilities. The DePere and Waukesha ‘‘ ’’ Central region (which includes are significantly short on volume. plants were owned and operated by 32. Dean eliminated the competitive Wisconsin) identified his key concern as Foremost’s Consumer Products threat posed by Foremost by acquiring ‘‘Midwest excess capacity lies with Division. On or about April 1, 2009, its two milk processing plants. Any cooperatives with staying power.’’ Dean bought substantially all of the efficiencies Dean may realize from Cooperatives, such as Foremost, were Consumer Products Division’s assets for acquiring the two plants are not likely competitive threats because their $35 million. The Acquisition was not to reverse the anticompetitive impact of ‘‘earnings expectations [are] lower than required to be reported beforehand to eliminating a competitor responsible for Deans,’’ because the ‘‘co-op goal is to Federal antitrust authorities under the the ‘‘most aggressive pricing’’ Dean had move Member milk,’’ and because ‘‘their Federal antitrust notification statute. seen in 40 years. There was an plants are under utilized.’’ C. Dean’s Rationale for the Acquisition 28. The problem this created for Dean alternative to this outcome. At the time 23. While Dean’s fortunes have been was obvious. Competition with these Foremost accepted Dean’s offer to rising, the same has not been true for cooperatives was predicted to ‘‘lower acquire these plants, another potential Foremost. In 2006 and 2007, Foremost margins and condition clients [to] the buyer was pursuing Foremost’s plants. lost some fluid milk customers that benefits of shopping their business.’’ IV. The Competitive Harm in School preferred a processor with a broader Along with one other cooperative in the Milk Markets geographic reach. Consequently, region, Foremost was identified as a Foremost’s Waukesha and DePere plants particularly ‘‘dangerous’’ competitor A. School Milk Is a Relevant Market were operating at less than two-thirds of because ‘‘they need to add volume to 33. School milk is a relevant product their fluid milk capacity, giving maintain their lo[w] cost strategy.’’ In market and line of commerce under Foremost the most excess capacity in other words, according to Dean, Section 7 of the Clayton Act. School Wisconsin, the UP, and northeastern Foremost was more willing to accept districts have no reasonable product Illinois. lower prices for processed fluid and alternatives to school milk. 24. Excess capacity creates an school milk than Dean found 34. The United States Department of incentive to bid more aggressively for acceptable. Agriculture sponsors several programs fluid and school milk contracts. Because 29. In 2007, the general manager at to reimburse schools for meals served to of its substantial excess capacity, Dean’s Verifine plant in Sheboygan, students from lower-income families. To Foremost was pricing aggressively to Wisconsin, reported to his boss that he qualify, schools must offer milk to every secure new business. Unlike Foremost, was ‘‘seeing alot [sic] of off the wall student, regardless of family income.

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Schools will not substitute other recent or likely future bidders. For these fluid milk to purchasers located in the products for school milk even at school districts, the Acquisition relevant geographic market. Some of substantially higher milk prices because represents a ‘‘merger to duopoly.’’ these processors are located outside of they would lose their Federal meal 38. In addition, Foremost was an Wisconsin, the UP, and northeastern reimbursement. especially aggressive bidder. This forced Illinois. Prior to the Acquisition, Dean had the largest share of sales to B. The Relevant Geographic Markets its rivals to keep their bid prices as low as possible or risk losing substantial purchasers within the relevant 35. Each school district in Wisconsin amounts of school milk business. geographic market. Dean accounted for and the UP constitutes a relevant 44.6 percent of fluid milk sales; geographic market or section of the V. The Competitive Harm in the Fluid Foremost accounted for another 12.6 country within the meaning of Section Milk Market percent. As a result of the Acquisition, 7 of the Clayton Act. As alleged in A. Fluid Milk Is a Relevant Product Dean now has more than 57 percent of paragraph 19, individual school districts Market all fluid milk sales in the relevant solicit school milk contract bids from geographic market. There are only two 39. Fluid milk is a relevant product processors. In response, processors other competitors with more than five engage in ‘‘price discrimination,’’ i.e., market and line of commerce under percent of fluid milk sales in the charging different prices to different Section 7 of the Clayton Act. Fluid milk relevant geographic market, Kemps LLC customers. Processors develop is a product with special nutritional (a subsidiary of Hood LLC) (‘‘Kemps’’) individualized bids based on both cost characteristics and has no practical and Prairie Farms Dairy, Inc., which and non-cost factors (see e.g., paragraph substitutes. have 17 and 15 percent, respectively. 14). School districts are unlikely to 40. Consumer demand for fluid milk Moreover, Dean’s post-Acquisition engage in arbitrage, i.e., reselling among is relatively inelastic, i.e., fluid milk shares are even higher in certain areas customers, to offset the processors’ consumption does not decrease within the relevant geographic market: ability to engage in price discrimination significantly in response to a price over 85 percent in the UP and over 60 among school districts. Therefore, a increase. Demand by retailers, percent in Green Bay, Wisconsin, and in hypothetical monopolist supplying distributors, and other purchasers of northeastern Illinois (including school milk to any particular district fluid milk is also inelastic because it is Chicago). would impose (at least) a small but based on consumer demand. As a result, 44. As articulated in the Horizontal significant non-transitory price increase a hypothetical monopolist over fluid Merger Guidelines issued by the (e.g., five percent). milk would profitably impose at least a Department of Justice and the Federal small but significant and non-transitory Trade Commission, the Herfindahl- C. The Acquisition Will Result in price increase (e.g., five percent). Anticompetitive Unilateral Effects Hirschman Index (‘‘HHI’’) is a measure of B. The Relevant Geographic Market market concentration.2 The Acquisition 36. School districts in Wisconsin and increases the HHI by 1,127 points to the UP have only a few choices for 41. Fluid milk processors are able to 3,830, indicating a substantial increase school milk suppliers. There are charge different prices to buyers in in concentration. The change in the HHI numerous school districts, particularly different areas, i.e., they can price is even more pronounced in certain in northeastern Wisconsin and the discriminate. In the presence of price areas within the relevant geographic western UP, for which the Acquisition discrimination, relevant geographic area. For example, in the UP, the HHI merged the two processors that were markets may be defined by reference to increased by 2,814 points to 7,510, and best situated to serve the district. In the location of buyers. In particular, a in Green Bay, the HHI increased by many cases, the Acquisition created a relevant geographic market for fluid 1,728 to 4,777. ‘‘merger to monopoly,’’ leaving Dean as milk refers to a region within which the only likely bidder. These school purchasers can be targeted for a price D. The Acquisition Will Result in districts include those where Dean and increase. A portion of the fluid milk Competitive Harm Foremost were the only two dairy supplied to the relevant geographic 45. The Acquisition will likely processors to bid in recent years. The market comes from plants located substantially lessen competition among elimination of head-to-head competition outside of Wisconsin, the UP, and fluid milk producers in the relevant between Dean and Foremost will likely northeastern Illinois. geographic market, resulting in higher substantially lessen competition in 42. Wisconsin, the UP, and fluid milk prices to purchasers than these school milk markets and enable northeastern Illinois constitute a would exist in the absence of the Dean to raise prices and/or reduce relevant geographic market and section Acquisition. The Acquisition will services. of the country under Section 7 of the eliminate head-to-head competition that 37. In addition, in a separate set of Clayton Act. As discussed in paragraph has benefitted and would otherwise school districts, either Dean or Foremost 15, most customers purchase fluid milk continue to benefit purchasers and final was the only bidder and the other from suppliers with processing plants processor was the next-lowest-cost located near them because of the costs 2 See U.S. Dep’t of Justice, Horizontal Merger supplier because of factors such as associated with transportation and shelf Guidelines § 1.51 (1997), available at http:// www.justice.gov/atr/public/guidelines/horiz_book/ distance from the processing plant or life. Prior to the Acquisition, Foremost hmg1.html. The HHI is calculated by squaring the the presence of an established sold virtually all of its fluid milk to market share of each firm competing in the market distribution network. It is likely that purchasers located in the relevant and then summing the resulting numbers. For prices will rise and/or services will be geographic market. Dean competed to example, for a market consisting of four firms with shares of 30, 30, 20, and 20 percent, the HHI is reduced in these school milk markets, supply fluid milk to purchasers 2,600 (302 + 302 + 202 + 202 = 2,600). It approaches regardless of whether both Dean and throughout this same area. zero when a market is occupied by a large number Foremost submitted formal bids before of firms of relatively equal size and reaches a the Acquisition. There is also a C. Market Concentration maximum of 10,000 points when a market is controlled by a single firm. The HHI increases both substantial number of school districts in 43. The Acquisition will result in a as the number of firms in the market decreases and Wisconsin and the UP for which Dean substantial increase in the concentration as the disparity in size between those firms and Foremost were two of only three of processors that compete to supply increases.

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consumers. The Acquisition will also can identify one another’s customers. geographic market and eliminating an result in easier and more durable With the elimination of Foremost, aggressive competitor with large coordinated interaction among Dean purchasers in many areas of the relevant amounts of excess capacity, the and its few remaining competitors. geographic market will have only two or Acquisition makes coordination easier three significant suppliers of fluid milk. and more durable. 1. The Anticompetitive Effects From the For example, in Wisconsin, Dean and Loss of Head-to-Head Competition VI. Entry Is Unlikely Kemps, its next-largest competitor, now 46. Dean and Foremost often account for more than 80 percent of 53. Entry is unlikely to be sufficient competed head-to-head to win fluid sales. or timely enough to offset the milk contracts because they were the 49. Even before the Acquisition, Dean anticompetitive effects of the nearest fluid milk processors to many of and other dairy processors besides Acquisition. Firms currently serving the the purchasers in the relevant Foremost were at times content not to fluid milk and school milk markets in geographic market. As discussed in attack one another’s large accounts. In a Wisconsin, the UP, and northeastern paragraph 15, proximity to the recent bidding event, Dean refused to Illinois are unlikely to expand their purchaser is an important factor in a bid aggressively for a major supermarket service area or presence sufficiently to processor’s competitiveness. Prior to the chain that was Kemps’s largest account, substantially mitigate the loss of Acquisition, Foremost competed with despite the purchaser’s complaint to Foremost’s head-to-head competition Dean throughout the relevant Dean that Dean’s bid was too high. A with Dean in the fluid milk and school geographic market. The head-to-head Dean executive testified that stealing the milk markets, or to disrupt coordinated competition between Dean and account from Kemps would have put a interaction by Dean and its remaining Foremost was most pronounced and Kemps plant ‘‘out of business or to its competitors in the fluid milk market. pervasive in the UP and northeast and knees’’ and that ‘‘we’re not going to do Firms not currently serving these southeast Wisconsin, where the Dean that right now. You pick your fights.’’ In markets are unlikely to enter in the and Foremost plants were the two contrast, Foremost was not content to foreseeable future. closest plants to many fluid milk pick its fights. When Foremost was VII. Violations Alleged purchasers. bidding for the same large supermarket 47. As discussed in paragraph 23, chain, it submitted a competitive bid, 54. The United States and the Plaintiff Foremost had substantial excess even though Foremost realized that the States hereby incorporate the allegations capacity, and as a result, was pricing ‘‘cost’’ of winning that business could be of paragraphs 1 through 52 above. aggressively to secure new business. high, due to the potential for retaliation. A. Count 1 The presence of Foremost as an The general manager of Foremost’s aggressive pricing competitor to Dean Morning Glory plant estimated that 55. The Acquisition likely will and a constraining force on Dean’s retaliation at five of his larger accounts substantially lessen competition in pricing is reflected in the internal Dean could cost almost $500,000 per year. interstate trade and commerce, in documents discussed in paragraphs 25 50. Whereas Foremost was routinely violation of Section 7 of the Clayton to 29. The elimination of this head-to- labeled as an ‘‘irrational’’ competitor by Act, 15 U.S.C. 18, in that: head competition likely will produce Dean executives, the Group Vice a. Actual and potential competition higher prices and/or reduced services President for Dean’s North Central between Foremost and Dean in the State for many purchasers in the relevant region labeled two other processors of Wisconsin and the UP in the sale of geographic market. These effects will ‘‘good competitors’’ in his 2008 strategic school milk will be eliminated; and b. competition in the State of vary among purchasers because, as growth planning document. By ‘‘good Wisconsin and the UP in the sale of discussed previously, different competitor,’’ Dean’s Vice President school milk will be substantially purchasers have different competitive admitted he meant that, unlike lessened. options. Thus, the prices paid and Foremost, these competitors were ‘‘more services received will continue to differ predictable’’ in terms of ‘‘where they’re B. Count 2 among purchasers after the Acquisition, going to poke you in the eye and where 56. The Acquisition likely will but for many purchasers the prices they they’re not, whereas the other * * * substantially lessen competition in pay and/or the services they receive will fellows [are] poking all the time.’’ With interstate trade and commerce, in be adversely affected by the Acquisition. this Acquisition, only the so-called violation of Section 7 of the Clayton ‘‘good competitors’’ will remain. Act, 15 U.S.C. 18, in that: 2. The Acquisition Will Facilitate 51. In at least one instance, Dean Anticompetitive Coordination a. Actual and potential competition successfully sent price signals to its between Foremost and Dean in the State 48. By eliminating Foremost, a competitors. In 2008, Dean announced of Wisconsin, the UP, and northeastern significant, disruptive, and aggressive an upcoming fuel surcharge price Illinois in the sale of fluid milk will be competitor, the Acquisition also will increase, and one of its competitors eliminated; and likely substantially lessen competition followed suit. In reporting this to his b. competition in the State of among the remaining competitors boss, the Group Vice President for the Wisconsin, the UP, and northeastern selling fluid milk in the relevant region in which this occurred wrote, Illinois in the sale of fluid milk will be geographic market by facilitating ‘‘[our competitor] followed us this week substantially lessened. coordination among them. Dean and its with a similar increase. The strategy few remaining competitors will be more paid off.’’ His boss then declared that it VIII. Relief Requested likely to decline to bid aggressively for is a good practice ‘‘to signal your 57. The United States and the Plaintiff one another’s established customers out intentions early and often.’’ The Vice States request that this Honorable Court: of concern for retaliation, thereby President for the North Central region, a. Adjudge and decree that the allocating customers among one another which includes Wisconsin, then Acquisition violates Section 7 of the based on a mutual recognition of what instructed his staff to ‘‘get out early for Clayton Act, 15 U.S.C. 18; supplier serves what customers. This July and signal the marketplace.’’ b. compel Dean to divest all of the form of coordination is easier when 52. By reducing the number of assets and interests it acquired as part there are fewer competitors and they competitors serving the relevant of the Acquisition;

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c. permanently enjoin Dean from Chief, Civil Division, United States Attorney’s Competitive Impact Statement relating further ownership and operation of the Office, Eastern District of Wisconsin, 517 East to the proposed Final Judgment assets acquired as part of the Wisconsin Ave., Room 530, Milwaukee, submitted for entry in this civil antitrust Acquisition; Wisconsin 53202, (414) 297–1747 (direct), proceeding. d. compel Dean, including any of its (414) 297–1700 (office), (414) 297–4394 (fax), [email protected]. subsidiaries, joint ventures, successors I. Nature and Purpose of the Proceeding Dated: January 22, 2010. The United States filed a civil or assigns, and all persons acting on Respectfully submitted, behalf of any of the foregoing, to provide antitrust Complaint under Section 15 of the United States (and any Plaintiff FOR PLAINTIFF STATE OF WISCONSIN the Clayton Act, 15 U.S.C. 25, on State(s) if commerce in that state(s) is J.B. Van Hollen, January 22, 2010, alleging that the potentially affected) with notification at Attorney General. acquisition by Dean Foods Company least 30 calendar days prior to any By: (‘‘Dean’’) of two fluid milk processing acquisition, in whole or in part, of any /s/ lllllllllllllllllll plants in Wisconsin from Foremost school milk or fluid milk processing Steven P. Means, Bar Number: 1011355, Farms USA (‘‘Foremost’’) violated operation, notwithstanding the Attorney for Plaintiff State of Wisconsin, Section 7 of the Clayton Act (‘‘Section consideration Dean intends to pay for Wisconsin Department of Justice, 17 West 7’’), 15 U.S.C. 18. The Complaint alleges such acquisition; and Main Street, Madison, WI 53703, Telephone: that Dean’s acquisition of the Foremost e. award to each plaintiff its costs for (608) 266–3860, Fax: (608) 266–1656, E-mail: plants (the ‘‘Acquisition’’) likely would this action and such other and further [email protected]. substantially lessen competition in two relief as may be appropriate and as the By: types of markets: (1) The sale of fluid Court may deem just and proper. /s/ lllllllllllllllllll milk to customers (e.g., retailers and Dated: January 22, 2010. Gwendolyn J. Cooley, Bar Number: 1053856 distributors) located in Wisconsin, Attorney for Plaintiff State of Wisconsin, 1 Respectfully submitted, northeastern Illinois; and the Upper Wisconsin Department of Justice, 17 West Peninsula of Michigan (the ‘‘UP’’); and FOR PLAINTIFF UNITED STATES OF Main Street, Madison, WI 53703, Telephone: (2) the sale of school milk to school AMERICA (608) 261–5810, Fax: (608) 267–2778, E-mail: [email protected]. districts located throughout Wisconsin /s/ lllllllllllllllllll and the UP. On March 29, 2011, the Dated: January 22, 2010. Christine A. Varney, United States filed a proposed Final Assistant Attorney General, Antitrust Respectfully submitted, Judgment designed to remedy the Division. FOR PLAINTIFF STATE OF ILLINOIS competitive harm caused by the /s/ lllllllllllllllllll Lisa Madigan, Acquisition. Under the proposed Final William F. Cavanaugh, Attorney General Judgment, which is explained more Deputy Assistant Attorney General, Antitrust By: fully below, Dean is required to divest Division. /s/ lllllllllllllllllll the Waukesha milk processing plant and /s/ lllllllllllllllllll Robert W. Pratt, related assets. Joshua H. Soven, Chief, Chief, Antitrust Bureau, Office of the The United States and Dean have Joseph M. Miller, Assistant Chief, Attorney General, State of Illinois 100 West stipulated that the proposed Final Litigation I Section, Antitrust Division. Randolph Street, Chicago, Illinois 60601, Judgment may be entered after /s/ lllllllllllllllllll (312) 814–3722. compliance with the APPA. Entry of the Patricia A. Brink, Dated: January 22, 2010. proposed Final Judgment would Deputy Director of Operations, Antitrust terminate this action, except that the Division. Respectfully submitted, Court would retain jurisdiction to lllllllllllllllllll FOR PLAINTIFF STATE OF MICHIGAN /s/ construe, modify, or enforce the Karl D. Knutsen, Michael A. Cox, provisions of the proposed Final Ryan M. Kantor, Attorney General. Judgment and to punish violations Jon B. Jacobs. By: Scott I. Fitzgerald, thereof. /s/ lllllllllllllllllll Adam Gitlin, D.J. Pascoe, II. Events Giving Rise to the Alleged Mitchell H. Glende, Violation Tiffany C. Joseph, Assistant Attorney General, Corporate Barry J. Joyce, Oversight Division, Attorney for the State of A. Defendant and the Acquisition David C. Kelly, Michigan, G. Mennen Williams Building, 6th Richard S. Martin, Floor, 525 W. Ottawa Street, Lansing, Dean is one of the largest food and Richard D. Mosier, Michigan 48933, Telephone: (517) 373–1160. beverage producers in this country, with Peter J. Mucchetti, United States District Court for the revenues of approximately $12 billion Julie A. Tenney, Eastern District of Wisconsin Milwaukee in 2010. Dean’s Dairy Group is the Paul J. Torzilli, Division country’s largest processor and Trial Attorneys, U.S. Department of Justice, United States of America, State of distributor of milk and other dairy Antitrust Division, Litigation I Section, 450 5th Street, Suite 4100, Washington, DC Wisconsin, State of Illinois, and State of products. Dean is a corporation 20530. Michigan, Plaintiffs, organized under Delaware state law, Dated: January 21, 2010. v. with its principal place of business in Dean Foods Company, Defendant. Dallas, Texas. Respectfully submitted, Civil Action No. 2:10–cv–00059 (JPS) Foremost is a dairy cooperative FOR PLAINTIFF UNITED STATES OF headquartered in Baraboo, Wisconsin, AMERICA Competitive Impact Statement and formed under Wisconsin state law. James L. Santelle, Plaintiff United States of America United States Attorney. (‘‘United States’’), pursuant to Section 1 ‘‘Northeastern Illinois’’ is defined as the By: following counties in the State of Illinois: Cook 2(b) of the Antitrust Procedures and County, DeKalb County, DuPage County, Grundy /s/ lllllllllllllllllll Penalties Act (‘‘APPA’’ or ‘‘Tunney Act’’), County, Kane County, Kendall County, Lake Matthew V. Richmond, 15 U.S.C. 16(b)–(h), files this County, McHenry County, and Will County.

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Like other agricultural cooperatives, explain that ‘‘[f]or price discrimination c. The Acquisition Will Likely Foremost is a member-owned business to be feasible, two conditions typically Substantially Lessen Competition in the association. Prior to Dean’s acquisition must be met: differential pricing and Sale of Fluid Milk to Customers Located of the Foremost plants, Foremost limited arbitrage.’’ U.S. Dept. of Justice in Wisconsin, Northeastern Illinois, and processed its members’ raw milk at its & FTC, Horizontal Merger Guidelines § 3 the Upper Peninsula of Michigan De Pere and Waukesha plants, as well (2010). More specifically, when The Complaint alleges that the as at other facilities. On April 1, 2009, suppliers can profitably charge different Acquisition will likely substantially Dean acquired the De Pere and prices (net of costs) to different lessen competition in the sale of fluid Waukesha plants, along with related customers in different locations, milk in the relevant geographic market. assets, from Foremost for $35 million. competition does not occur at the point Indicative of this are the effects of the This Acquisition was not required to be of production but at the customers’ Acquisition on market shares. In a reported to Federal antitrust authorities locations. Consequently, the relevant geographic market defined on the basis under the Hart–Scott–Rodino Antitrust analysis focuses on how much a of price discrimination, the participants Improvements Act of 1976, as amended, hypothetical monopolist would want to in the relevant market are firms that 15 U.S.C. 18a (the ‘‘HSR Act’’). raise price at various points of currently supply customers in the B. Competitive Effects of the Acquisition consumption, and the relevant market and firms that could economically begin doing so in the geographic market is defined around the 1. Fluid Milk event of a small price increase. Market location of those customers vulnerable shares typically are assigned to these a. Fluid Milk Is a Relevant Product to a price increase.3 If a hypothetical Market firms on the basis of their current (or monopolist can identify and price projected) sales to customers within the The Complaint alleges that fluid milk differently to buyers in certain areas geographic market, without regard to the is a relevant product market. Fluid milk (‘‘targeted buyers’’), and if arbitrage is location of the processing plant from is a product with special nutritional unlikely, then a hypothetical which the product is supplied.4 characteristics and has no practical monopolist would profitably impose a Based on current sales, as a result of substitutes. Consumer demand for fluid discriminatory price increase on buyers the Acquisition, Dean increased its milk is relatively inelastic, i.e., fluid in that area. share of fluid milk sold to customers in milk consumption does not decrease Applying this analysis, the evidence the relevant geographic market from significantly in response to a price approximately 45 percent to more than increase. Demand by retailers, in this case satisfies the conditions necessary to show price discrimination. 57 percent. There are only two other distributors, and other customers of competitors with more than five percent The evidence shows that fluid milk fluid milk is also inelastic because it is of fluid milk sales in the relevant processors negotiate prices for delivery based on consumer demand. geographic market—Kemps LLC (a of fluid milk to individual customers in subsidiary of Hood LLC) accounts for b. Wisconsin, Northeastern Illinois, and Wisconsin, northeastern Illinois, and the Upper Peninsula of Michigan approximately 17 percent of sales and the UP and that prices vary among the Prairie Farms Dairy, Inc. accounts for Constitute a Relevant Geographic customers. The evidence also shows Market approximately 15 percent of sales. The that customers cannot arbitrage because Acquisition will eliminate head-to-head The Complaint alleges that of significant loading and shipping costs competition that has benefitted, and Wisconsin, northeastern Illinois, and incurred in reselling. Moreover, the would otherwise continue to benefit, the UP constitute a relevant geographic customers lack the coolers necessary to customers and final consumers. The market for the sale of fluid milk. The act as arbitrageurs on a significant scale Acquisition will also likely facilitate Plaintiffs defined this geographic market and could not arbitrage fluid milk easier and more durable coordinated with respect to the locations of the labeled with their own trademarks to interaction among Dean and its few customers (e.g., grocery stores), rather other customers. Thus, fluid milk remaining competitors. than the location of the competitors (i.e., customers in Wisconsin, northeastern Dean and Foremost often competed fluid milk processing plants) because, as Illinois and the UP are vulnerable to head-to-head to serve fluid milk the Complaint alleges, fluid milk anticompetitive effects flowing from customers. Prior to the Acquisition, processors can price discriminate, in Dean’s acquisition of the Foremost Foremost competed with Dean other words, they can charge different throughout the relevant geographic plants. As the Complaint alleges, prior fluid milk prices (net of transportation market. Foremost had substantial excess to the Acquisition, Foremost sold cost) to customers in different areas. capacity, and as a result, competed This price discrimination is possible virtually all of its fluid milk to aggressively to secure new business. because processors individually customers located in these locations, The presence of Foremost as an negotiate prices with many customers, and Dean competed to supply fluid milk aggressive pricing competitor to Dean deliver the fluid milk to their customers’ to customers throughout this same area. served as a constraining force on Dean’s locations, and customers cannot Fluid milk customers located in pricing. The elimination of this head-to- eliminate price disparities through Wisconsin, northeastern Illinois, and head competition likely will produce arbitrage, due in part to high the UP would not defeat a price increase higher prices for many customers of transportation costs.2 by a hypothetical monopolist of fluid fluid milk in the relevant geographic The price discrimination analysis milk by substituting to other products or market. By eliminating Foremost, a underlying the geographic market by taking advantage of arbitrage. significant, disruptive, and aggressive definition set forth in the Complaint is competitor, the Acquisition also will thus consistent with the 2010 likely substantially lessen competition Horizontal Merger Guidelines, which among the remaining competitors selling fluid milk in the relevant 2 Arbitrage occurs when purchasers protect themselves by buying the same product from 3 See U.S. Dept. of Justice & FTC, Horizontal 4 U.S. Dept. of Justice & FTC, Horizontal Merger favored purchasers in other areas. Merger Guidelines § 4.2.2 (2010). Guidelines §§ 5.1, 5.2.

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geographic market by facilitating districts in Wisconsin and the UP as d. Entry Would Not Prevent the Likely coordination among them. The school districts solicit school milk Anticompetitive Effects of the Acquisition will result in a substantial contract bids directly from processors. It Acquisition in the School Milk Markets increase in the concentration of would not be feasible for an individual The Complaint alleges that entry into processors that compete to supply fluid school district to defeat a price increase school milk markets is not likely to milk to customers located in the by substituting to other products or by prevent the anticompetitive effects of relevant geographic market. With the engaging in arbitrage (i.e., by purchasing the Acquisition. Firms not currently elimination of Foremost, fluid milk school milk from favored school serving school districts in Wisconsin customers in many areas of the relevant districts). A hypothetical monopolist and the UP are unlikely to begin to do geographic market will have only two or could easily detect and thwart such an so in the foreseeable future. three significant suppliers of fluid milk. attempt to arbitrage, and the attempt, in This increased market concentration III. Explanation of the Proposed Final and the elimination of Foremost as an any event, would be greatly hindered by Judgment the significant loading and delivery aggressive competitor make it more A. Divestiture of the Waukesha Plant likely that Dean and its remaining costs incurred in reselling. Moreover, competitors will decline to bid school districts lack the coolers The proposed Final Judgment requires aggressively for each other’s existing necessary to act as arbitrageurs on a Dean, within 90 days after the filing of customers to prevent retaliatory significant scale. Since the hypothetical the proposed Final Judgment, or 5 days bidding. The practical effect of such a monopolist could identify and after entry of the Final Judgment by the strategy likely will be to allocate individually target vulnerable school Court, whichever is later, to divest the customers based on existing supplier– districts and arbitrage is infeasible, it is Waukesha plant it acquired from customer relationships. appropriate to define geographic Foremost. The divestiture required by the proposed Final Judgment will d. Neither Supply Responses Nor Entry markets around the locations of the school districts. Because sellers can establish an independent and Would Prevent the Likely economically viable competitor to Dean. Anticompetitive Effects of the price discriminate against individual The proposed Final Judgment is in the Acquisition in the Fluid Milk Market school districts, it is appropriate to public interest because the divestiture of define the geographic markets as The Complaint alleges that neither the Waukesha plant will enable the individual school districts.5 supply responses from market buyer to compete for business in an area participants nor entry would likely c. The Acquisition Will Likely that includes the vast majority of the prevent the anticompetitive effects of Substantially Lessen Competition in the population in the relevant geographic the Acquisition in the fluid milk market. Sale of School Milk to Certain School market. Of the De Pere and Waukesha Firms not currently serving these Districts Located in Wisconsin and the plants acquired by Dean through the markets are unlikely to enter in Upper Peninsula of Michigan Acquisition, the Waukesha plant response to a small, durable price currently produces more milk, has a increase. Firms currently selling fluid The Complaint alleges that the larger capacity to process milk, and is milk into the relevant geographic market Acquisition will likely substantially located closer to major population are unlikely to expand their sales lessen competition in the sale of school centers, including Chicago, Green Bay, sufficiently to substantially mitigate the milk to school districts located in and Milwaukee. Distance between loss of Foremost’s head-to-head Wisconsin and the UP. School districts processors and customers is an competition with Dean or to disrupt in Wisconsin and the UP have only a important consideration in fluid milk potential coordination by Dean and its few choices for school milk suppliers. pricing because fluid milk has a limited remaining competitors in the fluid milk Prior to the Acquisition, Dean and shelf life and is costly to transport. These costs result in most customers market. Foremost were the two processors best purchasing fluid milk from nearby 2. School Milk situated to serve certain districts in processing plants. For example, more a. School Milk Is a Relevant Product Wisconsin and the UP. In many than 90 percent of the milk sold to Market districts, the Acquisition created a customers in Wisconsin and the UP ‘‘merger to monopoly,’’ leaving Dean as The Complaint alleges that school travels less than 150 miles from the the only likely bidder. These school milk (i.e., fluid milk packaged and plant in which it was processed. Ninety- districts include those where Dean and distributed for sale to school districts, two percent of the population of the typically in half-pint containers) is a Foremost were the only two dairy relevant fluid milk geographic market is relevant product market. School processors to bid in recent years. There located within 150 miles of the districts must provide milk in order to are also a substantial number of school Waukesha plant, and 80% of public receive substantial funds under Federal districts in Wisconsin and the UP for school children in Wisconsin and the school meal subsidy programs. Schools which Dean and Foremost were two of UP are enrolled in school districts will not substitute other products for only three recent or likely future within 150 miles of the Waukesha school milk even at substantially higher bidders. For these school districts, the plant.6 The Waukesha plant currently school milk prices because they would Acquisition represents a ‘‘merger to serves some of the largest fluid milk lose their Federal meal reimbursement. duopoly.’’ The elimination of head-to- customers in Chicago and other areas of head competition between Dean and the relevant geographic market. b. School Districts Constitute Relevant In addition, the Waukesha plant has Geographic Markets Foremost will likely substantially lessen competition in these school milk significant excess capacity. This excess The Complaint alleges that each markets and enable Dean to raise prices 6 school district in Wisconsin and the UP and/or reduce services. The State of Michigan and Dean have entered constitutes a relevant geographic into a separate settlement agreement with respect to school milk sales in the UP. That agreement market. A hypothetical monopolist of includes a pricing mechanism that sets a maximum school milk could identify and 5 U.S. Dept. of Justice & FTC, Horizontal Merger school milk bid price based on prices Dean charged individually target vulnerable school Guidelines § 4.2.2 (2010). for school milk during 2010.

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capacity will allow it to serve additional consummated, and if necessary, to seek V. Procedures Available for customers of all sizes and will give the to enjoin any transaction pursuant to Modification of the Proposed Final purchaser of the plant the incentive to Section 7. Judgment compete aggressively for new business. The proposed Final Judgment The United States and Dean have The proposed Final Judgment requires provides that Dean shall not directly or stipulated that the proposed Final Dean to divest all tangible assets that indirectly acquire any assets of or Judgment may be entered by the Court comprise the Waukesha plant business interest in any fluid milk processing after compliance with the provisions of and all intangible assets used in the plant located in the United States, the APPA, provided that the United development, production, servicing, and where the value of the acquisition is $3 States has not withdrawn its consent. sale of fluid milk and other dairy million or greater, without prior The APPA conditions entry upon the products for the Waukesha plant. These notification to the United States. Court’s determination that the proposed assets will give the acquirer a Transactions otherwise subject to the Final Judgment is in the public interest. distribution network, an established reporting and waiting period The APPA provides a period of at customer base, and a brand (Golden requirements of the HSR Act are least 60 days preceding the effective Guernsey) with strong brand equity. The excepted from the notification provision date of the proposed Final Judgment assets must be divested in such a way of the proposed Final Judgment. This within which any person may submit to as to satisfy the United States in its sole provision will significantly broaden the United States written comments discretion that the divested assets can Dean’s pre-merger reporting regarding the proposed Final Judgment. and will be operated by the purchaser requirements because the $3 million Any person who wishes to comment as a viable, ongoing business that can amount is significantly less than the should do so within 60 days of the date compete effectively in the relevant HSR Act’s ‘‘size of the transaction’’ of publication of this Competitive market. Dean must take all reasonable reporting threshold. Impact Statement in the Federal steps necessary to accomplish the The proposed Final Judgment requires Register, or the last date of publication divestiture quickly and shall cooperate that such notification shall be provided with prospective purchasers. to the Antitrust Division in the same in a newspaper of the summary of this In the event that Dean does not format as, and in accordance with the Competitive Impact Statement, accomplish the divestiture within the instructions relating to the Notification whichever is later. All comments period prescribed in the proposed Final and Report Form set forth in the received during this period will be Judgment, the proposed Final Judgment Appendix to Part 803 of Title 16 of the considered by the United States provides that the Court will appoint a Code of Federal Regulations as Department of Justice, which remains trustee selected by the United States to amended, except that the information free to withdraw its consent to the effect the divestiture. If a trustee is requested in Items 5 through 9 of the proposed Final Judgment at any time appointed, the proposed Final Judgment instructions must be provided only prior to the Court’s entry of judgment. provides that Dean will pay all costs about fluid and school milk processing. The comments and the response of the and expenses of the trustee. The Notification shall be provided at least 30 United States will be filed with the trustee’s commission will be structured calendar days prior to acquiring any Court and published in the Federal so as to provide an incentive for the such interest. If within the 30-day Register. trustee based on the price obtained and period after notification, representatives Written comments should be the speed with which the divestiture is of the Antitrust Division make a written submitted to: accomplished. After his or her request for additional information, Dean Joshua H. Soven, Chief, Litigation I appointment becomes effective, the shall not consummate the proposed Section, Antitrust Division, United trustee will file monthly reports with transaction or agreement until 30 States Department of Justice, 450 Fifth the Court and the United States setting calendar days after responding Street, NW., Suite 4100, Washington, forth his or her efforts to accomplish the consistent with 15 U.S.C. 18a(e)(2). DC 20530. divestiture. At the end of six months, if Early termination of the waiting periods The proposed Final Judgment the divestiture has not been in this paragraph may be requested and, provides that the Court retains accomplished, the trustee and the where appropriate, granted in the same jurisdiction over this action, and the United States will make manner as is applicable under the parties may apply to the Court for any recommendations to the Court, which requirements and provisions of the HSR order necessary or appropriate for the shall enter such orders as appropriate, Act and rules promulgated thereunder. modification, interpretation, or in order to carry out the purpose of the IV. Remedies Available to Potential enforcement of the Final Judgment. trust, including extending the trust or Private Litigants VI. Alternatives to the Proposed Final the term of the trustee’s appointment. Section 4 of the Clayton Act, 15 Judgment B. Notification of Future Acquisitions U.S.C. 15, provides that any person who The United States considered various In addition to the divestiture of the has been injured as a result of conduct proposals for settlement offered by Dean Waukesha plant, the proposed Final prohibited by the antitrust laws may that would have provided less relief Judgment requires Dean to provide bring suit in Federal court to recover than is contained in the proposed Final advance notification of certain future three times the damages the person has Judgment. Those proposals involved the acquisitions of fluid milk processing suffered, as well as costs and reasonable divestiture of a single dairy with less plants to the Antitrust Division. The attorneys’ fees. Entry of the proposed capacity and a smaller service area than notification provision of the proposed Final Judgment will neither impair nor the Waukesha dairy. The United States Final Judgment is intended to avoid the assist the bringing of any private determined that the divestiture of the difficulties associated with remedying antitrust damage action. Under the Waukesha dairy was far superior given the harms of a consummated provisions of Section 5(a) of the Clayton its location, size, and excess capacity. anticompetitive acquisition by Act, 15 U.S.C. 16(a), the proposed Final The United States also considered, as permitting the United States to assess Judgment has no prima facie effect in an alternative to the proposed Final the competitive effects of Dean’s future any subsequent private lawsuit that may Judgment, incurring the time, expense, acquisitions before the acquisitions are be brought against Dean. and risk of a full trial on the merits in

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order to attempt to force Dean to divest 15 U.S.C. 16(e)(1)(A) & (B). In requirements might undermine the both of the plants that it acquired. The considering these statutory factors, the effectiveness of antitrust enforcement by United States is concerned that the court’s inquiry is necessarily a limited consent decree. competitive harm from the Acquisition one as the government is entitled to Bechtel, 648 F.2d at 666 (emphasis will be ongoing, and may become harder ‘‘broad discretion to settle with the added) (citations omitted).9 In to remedy, as time passes.7 The defendant within the reaches of the determining whether a proposed proposed Final Judgment will provide public interest.’’ United States v. settlement is in the public interest, a immediate relief and will avoid possible Microsoft Corp., 56 F.3d 1448, 1461 (DC district court ‘‘must accord deference to degradation of the Waukesha plant’s Cir. 1995); see generally United States v. the government’s predictions about the business or the Golden Guernsey brand. SBC Commc’ns, Inc., 489 F. Supp. 2d 1 efficacy of its remedies, and may not The United States recognizes that the (D.DC 2007) (assessing public interest require that the remedies perfectly divestiture of the Waukesha plant, while standard under the Tunney Act); United match the alleged violations.’’ SBC addressing the vast majority of harm States v. InBev N.V./S.A., 2009–2 Trade Commc’ns, 489 F. Supp. 2d at 17; see alleged in the Complaint, likely will Cas. (CCH) ¶ 76,736, 2009 U.S. Dist. also Microsoft, 56 F.3d at 1461 (noting have little effect on competition for LEXIS 84787, No. 08–1965 (JR), at *3, the need for courts to be ‘‘deferential to fluid milk and school milk consumers (D.DC Aug. 11, 2009) (noting that the the government’s predictions as to the in the northernmost section of the court’s review of a consent judgment is effect of the proposed remedies’’); affected region. However, the proposed limited and only inquires ‘‘into whether United States v. Archer–Daniels– Final Judgment avoids the time, the government’s determination that the Midland Co., 272 F. Supp. 2d 1, 6 expense, and uncertainty of a full trial proposed remedies will cure the (D.D.C. 2003) (noting that the court on the merits. Moreover, the United antitrust violations alleged in the should grant due respect to the United States is satisfied that the divestiture of complaint was reasonable, and whether States’ prediction as to the effect of the Waukesha plant described in the the mechanisms to enforce the final proposed remedies, its perception of the proposed Final Judgment is in the judgment are clear and manageable’’).8 market structure, and its views of the public interest because it will create an As the United States Court of Appeals nature of the case). independent competitor able to compete for the District of Columbia Circuit has Courts have greater flexibility in for business in an area that includes the held, under the APPA a court considers, approving proposed consent decrees vast majority of the population in the among other things, the relationship than in crafting their own decrees relevant geographic market. between the remedy secured and the following a finding of liability in a allegations set forth in the government’s litigated matter. ‘‘[A] proposed decree VII. Standard of Review Under the complaint, whether the decree is must be approved even if it falls short APPA for the Proposed Final Judgment sufficiently clear, whether enforcement of the remedy the court would impose The Clayton Act, as amended by the mechanisms are sufficient, and whether on its own, as long as it falls within the APPA, requires that proposed consent the decree may positively harm third range of acceptability or is ‘within the judgments in antitrust cases brought by parties. See Microsoft, 56 F.3d at 1458– reaches of public interest.’’’ United the United States be subject to a 60-day 62. With respect to the adequacy of the States v. Am. Tel. & Tel. Co., 552 F. comment period, after which the court relief secured by the decree, a court may Supp. 131, 151 (D.D.C. 1982) (citations shall determine whether entry of the not ‘‘engage in an unrestricted omitted) (quoting United States v. proposed Final Judgment ‘‘is in the evaluation of what relief would best Gillette Co., 406 F. Supp. 713, 716 (D. public interest.’’ 15 U.S.C. 16(e)(1). In serve the public.’’ United States v. BNS, Mass. 1975)), aff’d sub nom. Maryland making that determination, the court, in Inc., 858 F.2d 456, 462 (9th Cir. 1988) v. United States, 460 U.S. 1001 (1983); accordance with the statute as amended (citing United States v. Bechtel Corp., see also United States v. Alcan in 2004, is required to consider: 648 F.2d 660, 666 (9th Cir. 1981)); see Aluminum Ltd., 605 F. Supp. 619, 622 (W.D. Ky. 1985) (approving the consent (A) The competitive impact of such also Microsoft, 56 F.3d at 1460–62; United States v. Alcoa, Inc., 152 F. decree even though the court would judgment, including termination of alleged have imposed a greater remedy). To violations, provisions for enforcement and Supp. 2d 37, 40 (D.D.C. 2001); InBev, modification, duration of relief sought, 2009 U.S. Dist. LEXIS 84787, at *3. meet this standard, the United States anticipated effects of alternative remedies Courts have held that: ‘‘need only provide a factual basis for actually considered, whether its terms are concluding that the settlements are ambiguous, and any other competitive [t]he balancing of competing social and reasonably adequate remedies for the political interests affected by a proposed considerations bearing upon the adequacy of alleged harms.’’ SBC Commc’ns, 489 F. antitrust consent decree must be left, in the such judgment that the court deems first instance, to the discretion of the Supp. 2d at 17. necessary to a determination of whether the Attorney General. The court’s role in In its 2004 amendments, Congress consent judgment is in the public interest; protecting the public interest is one of made clear its intent to preserve the and insuring that the government has not practical benefits of utilizing consent (B) the impact of entry of such judgment breached its duty to the public in consenting decrees in antitrust enforcement, adding upon competition in the relevant market or to the decree. The court is required to markets, upon the public generally and the unambiguous instruction that determine not whether a particular decree is ‘‘[n]othing in this section shall be individuals alleging specific injury from the the one that will best serve society, but violations set forth in the complaint whether the settlement is ‘‘within the reaches 9 Cf. BNS, 858 F.2d at 464 (holding that the including consideration of the public benefit, of the public interest.’’ More elaborate if any, to be derived from a determination of court’s ‘‘ultimate authority under the [APPA] is the issues at trial. limited to approving or disapproving the consent 8 The 2004 amendments substituted ‘‘shall’’ for decree’’); United States v. Gillette Co., 406 F. Supp. ‘‘may’’ in directing relevant factors for a court to 713, 716 (D. Mass. 1975) (noting that, in this way, 7 Plaintiffs have been concerned about the consider and amended the list of factors to focus on the court is constrained to ‘‘look at the overall deterioration of the Foremost assets since filing the competitive considerations and to address picture not hypercritically, nor with a microscope, action. See Joint Rule 26(f) Conference Report potentially ambiguous judgment terms. Compare 15 but with an artist’s reducing glass’’). See generally (Docket No. 31, filed May 21, 2010). This settlement U.S.C. 16(e) (2004), with 15 U.S.C. 16(e)(1) (2006); Microsoft, 56 F.3d at 1461 (discussing whether ‘‘the eliminates the risk of asset deterioration that would see also SBC Commc’ns, 489 F. Supp. 2d at 11 remedies [obtained in the decree are] so have occurred prior to the entry of a judgment after (concluding that the 2004 amendments ‘‘effected inconsonant with the allegations charged as to fall trial. minimal changes’’ to Tunney Act review). outside of the ‘reaches of the public interest’’’).

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construed to require the court to United States District Court for the ventures, and their directors, officers, conduct an evidentiary hearing or to Eastern District of Wisconsin Milwaukee managers, agents, and employees. require the court to permit anyone to Division (C) ‘‘Divestiture Assets’’ means the intervene.’’ 15 U.S.C. 16(e)(2). The United States of America, State of Waukesha Plant, as defined below, and language wrote into the statute what Wisconsin, State of Illinois, and) State all related assets for the Waukesha Plant Congress intended when it enacted the of Michigan, Civil Action No. 2:10-cv- (except for those specified in Section Tunney Act in 1974, as Senator Tunney 00059 (JPS) Plaintiffs, II(C)(3) below), including: explained: ‘‘[t]he court is nowhere v. (1) All tangible assets that comprise compelled to go to trial or to engage in Dean Foods Company, Defendant. the Waukesha Plant business, including all property and contract rights, research extended proceedings which might have [Proposed] Final Judgment the effect of vitiating the benefits of and development activities; all prompt and less costly settlement Whereas, Plaintiffs filed their manufacturing equipment, tooling and through the consent decree process.’’ Complaint on January 22, 2010, and fixed assets, personal property, 119 Cong. Rec. 24,598 (1973) (statement Plaintiffs and Defendant, by their inventory, office furniture, materials, of Senator Tunney). Rather, the respective attorneys, have consented to supplies, vehicles and other rolling procedure for the public interest the entry of this Final Judgment without stock, and other tangible property and determination is left to the discretion of trial of any issue of fact or law, and all assets used in connection with the the court, with the recognition that the without this Final Judgment plant; all licenses, permits and court’s ‘‘scope of review remains sharply constituting any evidence against or authorizations issued by any proscribed by precedent and the nature admission by any party regarding any governmental organization relating to of Tunney Act proceedings.’’ SBC issue of fact or law; the plant; all contracts, teaming Commc’ns, 489 F. Supp. 2d at 11.10 And Whereas, Defendant agrees to be arrangements, agreements, leases, bound by the provisions of this Final commitments, certifications, and VIII. Determinative Documents Judgment pending its approval by the understandings, relating to the plant, Court; including agreements with suppliers There are no determinative materials And Whereas, the essence of this and with distributors; all customer lists or documents within the meaning of the Final Judgment is the prompt and and related customer information, APPA that were considered by the certain divestiture of certain rights or contracts, accounts (including accounts United States in formulating the assets by Defendant to assure that receivable), and credit records; and all proposed Final Judgment. competition is not substantially repair and performance records and all Dated: March 29, 2011. lessened; other records relating to the plant; and Respectfully submitted, And Whereas, Plaintiffs require (2) All intangible assets used in the s/ Mitchell H. Glende, Defendant to make certain divestitures development, production, servicing, and Jon B. Jacobs, for the purpose of remedying the loss of sale of Fluid Milk and other dairy Karl D. Knutsen, competition alleged in the Complaint; products for the Waukesha Plant, Ryan M. Kantor, And Whereas, Defendant has including, but not limited to, all patents, Mitchell H. Glende, represented to Plaintiffs that the licenses and sublicenses, copyrights, Paul J. Torzilli, divestitures required below can and will trademarks, trade names (including the United States Department of Justice, be made and that Defendant will later Golden Guernsey and La Vaca Bonita Antitrust Division, 450 Fifth St., NW., Suite raise no claim of hardship or difficulty brands and all related materials), service 4100, Washington, DC 20530, Telephone: as grounds for asking the Court to marks, service names, and other (202) 514–5012, E-mail: jon.jacobs intellectual property; technical @usdoj.gov. modify any of the divestiture provisions contained below; information, computer software and s/ Gregory J. Haanstad, Now Therefore, before any testimony related documentation; know-how and for James L. Santelle, is taken, without trial of any issue of recipes; trade secrets; drawings, James L. Santelle, blueprints, designs, design protocols, United States Attorney. fact or law, and upon consent of the specifications for materials, Susan M. Knepel, parties, it is Ordered, Adjudged and Decreed: specifications for parts and devices, Assistant United States Attorney, State Bar safety procedures for the handling of Number: 1016482, 530 Federal Courthouse, I. Jurisdiction materials and substances; quality 517 E. Wisconsin Avenue, Milwaukee, WI assurance and control procedures; 53202, Telephone: (414) 297–1700, E-mail: This Court has jurisdiction over the [email protected]. subject matter of and each of the parties design tools and simulation capability; to this action. The Complaint states all manuals and technical information Defendant provides to its own 10 See United States v. Enova Corp., 107 F. Supp. claims upon which relief may be 2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney granted against Defendant under Section employees, customers, suppliers, agents, Act expressly allows the court to make its public 7 of the Clayton Act, as amended (15 or licensees; and all research data interest determination on the basis of the U.S.C. 18). concerning historic and current research competitive impact statement and response to and development efforts relating to the comments alone’’); United States v. Mid-Am. II. Definitions Dairymen, Inc., 1977–1 Trade Cas. (CCH) ¶ 61,508, Divestiture Assets, including, but not at 71,980 (W.D. Mo. 1977) (‘‘Absent a showing of As used in this Final Judgment: limited to, designs of experiments, and corrupt failure of the government to discharge its (A) ‘‘Acquirer’’ means the person or the results of successful and duty, the Court, in making its public interest entity to whom Defendant divests the unsuccessful designs and experiments. finding, should * * * carefully consider the ‘‘ ’’ explanations of the government in the competitive Divestiture Assets. (3) The term Divestiture Assets does impact statement and its responses to comments in (B) ‘‘Dean Foods’’ means Defendant not include: (a) The right to purchase order to determine whether those explanations are Dean Foods Company, a Delaware raw milk from Foremost Farms USA reasonable under the circumstances.’’); S. Rep. No. corporation with its headquarters in Cooperative for processing at the 93–298, 93d Cong., 1st Sess., at 6 (1973) (‘‘Where the public interest can be meaningfully evaluated Dallas, Texas, its successors and assigns, Waukesha Plant obtained under the simply on the basis of briefs and oral arguments, and its subsidiaries, divisions, groups, Milk Supply Agreement entered into on that is the approach that should be utilized.’’). affiliates, partnerships and joint April 1, 2009 between Foremost Farms

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USA Cooperative and GG Acquisition, Defendant shall inform any person after consultation with the Plaintiff LLC; (b) any ice cream mix filler making inquiry regarding a possible States, that the Divestiture Assets can equipment used at the Waukesha Plant purchase of the Divestiture Assets that and will be used by the Acquirer as part or any other equipment at that Plant they are being divested pursuant to this of viable, ongoing Fluid Milk and dedicated solely to the manufacturing of Final Judgment and provide that person School Milk processing businesses. The ice cream mix; or (c) the Dean and Farm with a copy of this Final Judgment. divestitures, whether pursuant to Fresh brands and all related materials. Defendant shall offer to furnish to all Section IV or Section V of this Final (D) ‘‘Fluid Milk’’ means raw milk that prospective Acquirers, subject to Judgment: has been processed for human customary confidentiality assurances, (1) Shall be made to an Acquirer that, consumption as a beverage, but does not all information and documents relating in the sole judgment of the United include organic milk, soy milk, to the Divestiture Assets customarily States, after consultation with the extended shelf life milk, ultra-high provided in a due diligence process Plaintiff States, has the intent and temperature milk, or aseptic milk. except such information or documents capability (including the necessary (E) ‘‘Plaintiff States’’ means the States subject to the attorney-client privilege or managerial, operational, technical, and of Wisconsin, Illinois, and Michigan. work-product doctrine. Defendant shall financial capability) of competing (F) ‘‘School Milk’’ means Fluid Milk make available such information to effectively in the sale of Fluid Milk and produced, marketed, distributed, or sold Plaintiffs at the same time that such School Milk; and for use by schools. information is made available to any (2) shall be accomplished so as to (G) ‘‘Waukesha Plant’’ means other person. satisfy the United States in its sole Defendant’s dairy processing plant (C) Defendant shall provide the discretion, after consultation with the located at 2101 Delafield Street, Acquirer and Plaintiffs with information Plaintiff States, that none of the terms of Waukesha, Wisconsin 53188–2299. relating to the personnel involved in the any agreement between an Acquirer and operation and sale of the Divestiture Defendant give Defendant the ability III. Applicability Assets to enable the Acquirer to make unreasonably to raise the Acquirer’s (A) This Final Judgment applies to offers of employment. Defendant will costs, to lower the Acquirer’s efficiency, Dean Foods, as defined above, and all not interfere with any negotiations by or otherwise to interfere in the ability of other persons in active concert or the Acquirer to employ any Defendant the Acquirer to compete effectively. participation with Dean Foods who employee whose primary responsibility V. Appointment of Trustee receive actual notice of this Final relates to the Divestiture Assets. Judgment by personal service or (D) Defendant shall permit (A) If Defendant has not divested the otherwise. prospective Acquirers of the Divestiture Divestiture Assets within the time (B) If, prior to complying with Section Assets to have reasonable (1) access to period specified in Section IV(A), IV or V of this Final Judgment, personnel and to make inspections of Defendant shall notify Plaintiffs of that Defendant sells or otherwise disposes of the physical facilities of the Waukesha fact in writing. Upon application of the all or substantially all of its assets or of Plant; (2) access to any and all United States in its sole discretion, after lesser business units that include the environmental, zoning, and other permit consultation with the Plaintiff States, Divestiture Assets, it shall require the documents and information; and (3) the Court shall appoint a trustee purchaser to be bound by the provisions access to any and all financial, selected by the United States, after of this Final Judgment. Defendant does operational, or other documents and consultation with the Plaintiff States, not need to obtain such an agreement information customarily provided as and approved by the Court to effect the from the Acquirer of the assets divested part of a due diligence process. divestiture of the Divestiture Assets. pursuant to this Final Judgment. (E) Defendant shall warrant to the (B) After the appointment of a trustee Acquirer that the Divestiture Assets will becomes effective, only the trustee shall IV. Divestitures be operational on the date of sale. have the right to sell the Divestiture (A) Defendant is ordered and directed, (F) Defendant shall not take any Assets. The trustee shall have the power within ninety (90) calendar days after action that will impede in any way the and authority to accomplish the the filing of the Proposed Final permitting, operation, or divestiture of divestiture to an Acquirer acceptable to Judgment or five (5) calendar days after the Divestiture Assets. the United States in its sole discretion, entry of this Final Judgment by the (G) Defendant shall warrant to the after consultation with the Plaintiff Court, whichever is later, to divest the Acquirer that there are no material States, at such price and on such terms Divestiture Assets in a manner defects in the environmental, zoning, or as are then obtainable upon reasonable consistent with this Final Judgment to other permits pertaining to the effort by the trustee, subject to the an Acquirer acceptable to the United operation of each asset, and that provisions of Sections IV, V, and VI of States in its sole discretion, after following the sale of the Divestiture this Final Judgment, and shall have consultation with the Plaintiff States. Assets, Defendant will not undertake, such other powers as this Court deems The United States in its sole discretion, directly or indirectly, any challenges to appropriate. Subject to Section V(D) of after consultation with the Plaintiff the environmental, zoning, or other this Final Judgment, the trustee may States, may agree to one or more permits relating to the operation of the hire at the cost and expense of extensions of this time period not to Divestiture Assets. Defendant any investment bankers, exceed thirty (30) calendar days in total, (H) Unless the United States in its attorneys, or other agents, who shall be and shall notify the Court in such sole discretion, after consultation with solely accountable to the trustee, circumstances. Defendant agrees to use the Plaintiff States, otherwise consents reasonably necessary in the trustee’s its best efforts to divest the Divestiture in writing, the divestiture pursuant to judgment to assist in the divestiture. Assets as expeditiously as possible. Section IV, or by trustee appointed (C) Defendant shall not object to a sale (B) In accomplishing the divestiture pursuant to Section V of this Final by the trustee on any ground other than ordered by this Final Judgment, Judgment, shall include the entire the trustee’s malfeasance. Any such Defendant promptly shall make known, Divestiture Assets, and shall be objections by Defendant must be by usual and customary means, the accomplished in such a way as to satisfy conveyed in writing to Plaintiffs and the availability of the Divestiture Assets. the United States in its sole discretion, trustee within ten (10) calendar days

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after the trustee has provided the notice under this Final Judgment within six (6) additional information requested from required under Section VI. months after its appointment, the Defendant, the proposed Acquirer, any (D) The trustee shall serve at the cost trustee shall promptly file with the third party, and the trustee, whichever and expense of Defendant, on such Court a report setting forth (1) the is later, the United States in its sole terms and conditions as the United trustee’s efforts to accomplish the discretion, after consultation with the States in its sole discretion, after required divestiture, (2) the reasons, in Plaintiff States, shall provide written consultation with the Plaintiff States, the trustee’s judgment, why the required notice to Defendant and the trustee, if approves, and shall account for all divestiture has not been accomplished, there is one, stating whether or not it monies derived from the sale of the and (3) the trustee’s recommendations. objects to the proposed divestiture. If assets sold by the trustee and all costs To the extent the report contains the United States provides written and expenses so incurred. After information that the trustee deems notice that it does not object, the approval by the Court of the trustee’s confidential, the report shall not be filed divestiture may be consummated, accounting, including fees for its in the public docket of the Court. The subject only to Defendant’s limited right services and those of any professionals trustee shall at the same time furnish to object to the sale under Section V(C) and agents retained by the trustee, all such report to Plaintiffs, which shall of this Final Judgment. Absent written remaining money shall be paid to have the right to make additional notice that the United States does not Defendant and the trust shall then be recommendations consistent with the object to the proposed Acquirer or upon terminated. The compensation of the purpose of the trust. The Court objection by the United States, a trustee and any professionals and agents thereafter shall enter such orders as it divestiture proposed under Section IV retained by the trustee shall be shall deem appropriate to carry out the or Section V shall not be consummated. reasonable in light of the value of the purpose of the Final Judgment, which Upon objection by Defendant under Divestiture Assets and based on a fee may, if necessary, include extending the Section V(C), a divestiture proposed arrangement providing the trustee with trust and the term of the trustee’s under Section V shall not be an incentive based on the price and appointment by a period requested by consummated unless approved by the terms of the divestiture and the speed the United States in its sole discretion, Court. with which it is accomplished, but after consultation with the Plaintiff VII. Financing timeliness is paramount. States. (E) Defendant shall use its best efforts Defendant shall not finance all or any to assist the trustee in accomplishing VI. Notice of Proposed Divestiture part of any purchase made pursuant to the required divestiture. The trustee and (A) Within two (2) business days Section IV or V of this Final Judgment. any consultants, accountants, attorneys, following execution of a definitive VIII. Asset Preservation and other persons retained by the divestiture agreement, Defendant or the trustee shall have full and complete trustee, whichever is then responsible Until the divestiture required by this access to the personnel, books, records, for effecting the divestiture required Final Judgment has been accomplished, and facilities of the business to be herein, shall notify Plaintiffs of any Defendant shall take all steps necessary divested, and Defendant shall develop proposed divestiture required by to comply with the Asset Preservation financial and other information relevant Section IV or V of this Final Judgment. Stipulation and Order entered by this to such business as the trustee may If the trustee is responsible, it shall Court. Defendant shall take no action reasonably request, subject to reasonable similarly notify Defendant. The notice that would jeopardize the divestiture protection for trade secret or other shall set forth the details of the ordered by this Court. confidential research, development, or proposed divestiture and list the name, IX. Affidavits commercial information. Defendant address, and telephone number of each shall take no action to interfere with or person not previously identified who (A) Within twenty (20) calendar days to impede the trustee’s accomplishment offered or expressed an interest in or of the filing of the Proposed Final of the divestiture. desire to acquire any ownership interest Judgment in this matter, and every (F) After its appointment, the trustee in the Divestiture Assets, together with thirty (30) calendar days thereafter until shall file monthly reports with Plaintiffs full details of the same. the divestiture has been completed and the Court setting forth the trustee’s (B) Within fifteen (15) calendar days under Section IV or V, Defendant shall efforts to accomplish the divestiture of receipt by Plaintiffs of such notice, deliver to Plaintiffs an affidavit as to the ordered under this Final Judgment. To the United States, after consultation fact and manner of its compliance with the extent such reports contain with the Plaintiff States, may request Section IV or V of this Final Judgment. information that the trustee deems from Defendant, the proposed Acquirer, Each such affidavit shall include the confidential, such reports shall not be any other third party, or the trustee, if name, address, and telephone number of filed in the public docket of the Court. applicable, additional information each person who, during the preceding Such reports shall include the name, concerning the proposed divestiture, the thirty (30) calendar days, made an offer address, and telephone number of each proposed Acquirer, and any other to acquire, expressed an interest in person who, during the preceding potential Acquirer. Defendant and the acquiring, entered into negotiations to month, made an offer to acquire, trustee shall furnish to the United acquire, or was contacted or made an expressed an interest in acquiring, States, which will share that inquiry about acquiring, any interest in entered into negotiations to acquire, or information with the Plaintiff States the Divestiture Assets, and shall was contacted or made an inquiry about upon any Plaintiff State’s request, any describe in detail each contact with any acquiring, any interest in the Divestiture additional information requested within such person during that period. Each Assets, and shall describe in detail each fifteen (15) calendar days of the receipt such affidavit shall also include a contact with any such person. The of the request, unless the parties shall description of the efforts Defendant has trustee shall maintain full records of all otherwise agree. taken to solicit buyers for the efforts made to divest the Divestiture (C) Within thirty (30) calendar days Divestiture Assets and to provide Assets. after receipt of the notice or within required information to prospective (G) If the trustee has not twenty (20) calendar days after the Acquirers, including the limitations, if accomplished the divestiture ordered United States has been provided the any, on such information. Provided that

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the information set forth in the affidavit 26(c)(1)(G) of the Federal Rules of Civil U.S.C. 18a(e) were applicable (‘‘Second is true and complete, any objection by Procedure,’’ then the United States shall Request’’). In the event of a Second the United States in its sole discretion, give Defendant ten (10) calendar days Request, Defendant shall not after consultation with the Plaintiff notice prior to divulging such material consummate the proposed transaction States, to information provided by in any legal proceeding (other than a or agreement until thirty (30) calendar Defendant, including any limitation on grand jury proceeding). days after responding consistent with 15 information, shall be made within (D) The United States may share U.S.C. 18a(e)(2). Early termination of the fourteen (14) calendar days of receipt of information or documents obtained waiting periods in this paragraph may such affidavit. under Section X with the Plaintiff be requested and, where appropriate, (B) Defendant shall keep all records of States. granted in the same manner as is all efforts made to preserve and divest XI. Treatment of Confidential applicable under the requirements and the Divestiture Assets until one year Information provisions of the HSR Act and rules after such divestiture has been promulgated thereunder. No information or documents completed. All references to the HSR Act in the obtained by the means provided in this proposed Final Judgment refer to the X. Compliance Inspection Final Judgment shall be divulged by the HSR Act as it exists at the time of the (A) For the purposes of determining United States or the Attorney General of transaction or agreement and or securing compliance with this Final Wisconsin, Illinois, or Michigan to any Judgment, or of determining whether person other than an authorized incorporate any subsequent the Final Judgment should be modified representative of the executive branch of amendments to the Act. or vacated, and subject to any legally the United States, except in the course XIII. No Reacquisition recognized privilege, from time to time of legal proceedings to which the United authorized representatives of the United States or the Attorney General of Defendant shall not reacquire any part States, including consultants and other Wisconsin, Illinois, or Michigan is a of the Divestiture Assets during the term persons retained by the United States, party (including grand jury of this Final Judgment. shall, upon written request of an proceedings), or for the purpose of XIV. Retention of Jurisdiction authorized representative of the securing compliance with this Final Assistant Attorney General in charge of Judgment, or as otherwise required by This Court retains jurisdiction to the Antitrust Division, and on law. enable any party to this Final Judgment to apply to this Court at any time for reasonable notice to Defendant, be XII. Notification of Future Transactions permitted: further orders and directions as may be (1) Access during Defendant’s office Unless such transaction is otherwise necessary or appropriate to carry out or hours to inspect and copy, or at the subject to the reporting and waiting construe this Final Judgment, to modify option of the United States, to require period requirements of the Hart-Scott- any of its provisions, to enforce Defendant to provide hard copy or Rodino Antitrust Improvements Act of compliance, and to punish violations of electronic copies of, all books, ledgers, 1976, as amended, 15 U.S.C. 18a (the its provisions. ‘‘HSR Act’’), Defendant, without accounts, records, data, and documents XV. Expiration of Final Judgment in the possession, custody, or control of providing advance notification to the Defendant, relating to any matters Antitrust Division and to any Plaintiff Unless this Court grants an extension, contained in this Final Judgment; and State in which any of the assets or this Final Judgment shall expire ten (10) (2) to interview, either informally or interests are located or whose border is years from the date of its entry. less than 150 miles from any such assets on the record, Defendant’s officers, XVI. Public Interest Determination employees, or agents, who may have or interests, shall not directly or their individual counsel present, indirectly acquire any assets of or The parties have complied with the regarding such matters. The interviews interest, including any financial, requirements of the Antitrust shall be subject to the reasonable security, loan, equity or management Procedures and Penalties Act, 15 U.S.C. convenience of the interviewee and interest, in any Fluid Milk processing 16, including making copies available to without restraint or interference by plant located in the United States, the public of this Final Judgment, the Defendant. where the value of the acquisition is $3 Competitive Impact Statement, and any (B) Upon the written request of an million or greater. comments thereon and the United authorized representative of the Such notification shall be provided to States’s responses to those comments. Assistant Attorney General in charge of the Antitrust Division in the same Based upon the record before the Court, the Antitrust Division, Defendant shall format as, and per the instructions which includes the Competitive Impact submit written reports or responses to relating to the Notification and Report Statement and any comments and written interrogatories, under oath if Form set forth in the Appendix to Part response to comments filed with the requested, relating to any of the matters 803 of Title 16 of the Code of Federal Court, entry of this Final Judgment is in contained in this Final Judgment as may Regulations as amended, except that the the public interest. be requested. information requested in Items 5 Court approval subject to procedures (C) If at the time information or through 9 of the instructions must be of Antitrust Procedures and Penalties documents are furnished by Defendant provided only about Fluid Milk and Act, 15 U.S.C. 16. to the United States, Defendant School Milk processing. Notification represents and identifies in writing the shall be provided at least thirty (30) Dated at Milwaukee, Wisconsin, this llth day of ll, 2011. material in any such information or calendar days prior to acquiring any documents to which a claim of such interest. Within the 30-day period By the Court: lllllllllllllllllllll protection may be asserted under Rule after notification, representatives of the 26(c)(1)(G) of the Federal Rules of Civil Antitrust Division may make a written J.P. Stadtmueller, Procedure, and Defendant marks each request for additional information or U.S. District Judge. pertinent page of such material, ‘‘Subject documentary material relevant to the [FR Doc. 2011–7938 Filed 4–04–11; 8:45 am] to claim of protection under Rule proposed acquisition as though 15 BILLING CODE 4410–11–P

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DEPARTMENT OF JUSTICE SUMMARY: The Department of Labor approved by the OMB under the PRA (DOL) is submitting the revised Bureau and displays a currently valid OMB Antitrust Division of Labor Statistics (BLS) sponsored Control Number. In addition, information collection request (ICR) notwithstanding any other provisions of Notice Pursuant to the National titled, ‘‘National Longitudinal Survey of law, no person shall generally be subject Cooperative Research and Production Youth 1997,’’ (NLSY97) to the Office of to penalty for failing to comply with a Act of 1993—IMS Global Learning Management and Budget (OMB) for collection of information if the Consortium, Inc. review and approval for use in collection of information does not Notice is hereby given that, on March accordance with the Paperwork display a valid OMB control number. 3, 2011, pursuant to Section 6(a) of the Reduction Act of 1995 (Pub. L. 104–13, See 5 CFR 1320.5(a) and 1320.6. The National Cooperative Research and 44 U.S.C. chapter 35). DOL obtains OMB approval for this Production Act of 1993, 15 U.S.C. 4301 DATES: Submit comments on or before information collection under OMB et seq. (‘‘the Act’’), IMS Global Learning May 5, 2011. Control Number 1220–0157. The current Consortium, Inc. has filed written ADDRESSES: A copy of this ICR, with OMB approval is scheduled to expire on notifications simultaneously with the applicable supporting documentation; October 31, 2011; however, it should be Attorney General and the Federal Trade including a description of the likely noted that information collections Commission disclosing changes in its respondents, proposed frequency of submitted to the OMB receive a month- membership. The notifications were response, and estimated total burden to-month extension while they undergo filed for the purpose of extending the may be obtained from the RegInfo.gov review. For additional information, see Act’s provisions limiting the recovery of Web site, http://www.reginfo.gov/ the related notice published in the antitrust plaintiffs to actual damages public/do/PRAMain, on the day Federal Register on December 22, 2010 under specified circumstances. following publication of this notice or (75 FR 80540). Interested parties are encouraged to Specifically, Norwegian Centre for ICT by contacting Michel Smyth by send comments to the OMB, Office of in Education, Hamar, NORWAY, has telephone at 202–693–4129 (this is not Information and Regulatory Affairs at been added as a party to this venture. a toll-free number) or sending an e-mail the address shown in the ADDRESSES Also, Horizon Wimba, New York, NY; to [email protected]. section within 30 days of publication of and University of Koblenz-Landau, Submit comments about this request this notice in the Federal Register. In Mainz, GERMANY, have withdrawn as to the Office of Information and order to help ensure appropriate parties to this venture. Regulatory Affairs, Attn: OMB Desk consideration, comments should No other changes have been made in Officer for the Department of Labor, reference OMB Control Number 1220– either the membership or planned Bureau of Labor Statistics (BLS), Office 0157. The OMB is particularly activity of the group research project. of Management and Budget, Room interested in comments that: Membership in this group research 10235, Washington, DC 20503, • Evaluate whether the proposed project remains open, and IMS Global Telephone: 202–395–6929/Fax: 202– collection of information is necessary Learning Consortium, Inc. intends to file 395–6881 (these are not toll-free for the proper performance of the additional written notifications numbers), e-mail: functions of the agency, including disclosing all changes in membership. [email protected]. On April 7, 2000, IMS Global whether the information will have FOR FURTHER INFORMATION CONTACT: Learning Consortium, Inc. filed its practical utility; Contact Michel Smyth by telephone at • Evaluate the accuracy of the original notification pursuant to Section 202–693–4129 (this is not a toll-free agency’s estimate of the burden of the 6(a) of the Act. The Department of number) or by e-mail at proposed collection of information, Justice published a notice in the Federal [email protected]. including the validity of the Register pursuant to Section 6(b) of the methodology and assumptions used; SUPPLEMENTARY INFORMATION: The Act on September 13, 2000 (65 FR • Enhance the quality, utility, and NLSY97 includes respondents born in 55283). clarity of the information to be the years 1980 through 1984 and lived The last notification was filed with collected; and the Department on December 16, 2010. in the United States when the survey • Minimize the burden of the A notice was published in the Federal began in 1997. The primary objective of collection of information on those who Register pursuant to Section 6(b) of the the survey is to study the transition are to respond, including through the Act January 10, 2011 (76 FR 1460). from full-time schooling to the use of appropriate automated, establishment of careers and families. Patricia A. Brink, electronic, mechanical, or other The longitudinal focus of the survey technological collection techniques or Director of Civil Enforcement, Antitrust requires information to be collected Division. other forms of information technology, about the same individuals over many e.g., permitting electronic submission of [FR Doc. 2011–7936 Filed 4–4–11; 8:45 am] years in order to trace their education, BILLING CODE M responses. training, work experience, fertility, Agency: Bureau of Labor Statistics income, and program participation. (BLS). Research based on the NLSY97 Title of Collection: National DEPARTMENT OF LABOR contributes to the formation of national Longitudinal Survey of Youth 1997. policy in the areas of education, OMB Control Number: 1220–0157. Office of the Secretary training, employment programs, and Affected Public: Individuals or school-to-work transitions. Households. Agency Information Collection This information collection is subject Total Estimated Number of Activities; Submission for OMB to the PRA. A Federal agency generally Respondents: 7680. Review; Comment Request; National cannot conduct or sponsor a collection Total Estimated Number of Longitudinal Survey of Youth 1997 of information, and the public is Responses: 10,462. generally not required to respond to an Total Estimated Annual Burden ACTION: Notice. information collection, unless it is Hours: 8,278.

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Total Estimated Annual Costs Burden: DATES: Written comments must be electronic, mechanical, or other $0. submitted to the office listed in the technological collection techniques or Dated: March 30, 2011. ADDRESSES section below on or before other forms of information technology, Michel Smyth, June 6, 2011. e.g., permitting electronic submissions of responses. Departmental Clearance Officer. ADDRESSES: Submit written comments [FR Doc. 2011–8095 Filed 4–4–11; 8:45 am] to Mr. Daniel Carroll, Division of III. Current Actions Research and Evaluations, Office of BILLING CODE 4510–24–P Policy Development and Research, U.S. Type of Review: Revision to an Department of Labor, 200 Constitution Approved Collection. Agency: Employment and Training DEPARTMENT OF LABOR Avenue, NW., Room N–5641, Washington, DC 20210. Telephone Administration. Title: National Agricultural Workers Employment and Training number: 202–693–2795 (this is not a Survey. toll-free number). Fax: 202–693–2766. Administration OMB Number: 1205–0453. E-mail: [email protected]. Comment Request for Information Affected Public: Individuals, Farms. SUPPLEMENTARY INFORMATION: Form(s): Primary Questionnaire. Collection for The National Agricultural I. Background Total Annual Respondents: 2,064. Workers Survey: Revision to an Frequency: annual. Approved Collection (OMB 1205–0453) The NAWS is an employment-based, Total Annual Responses: 2,064. annual survey of the demographic, AGENCY: Employment and Training Average Time per Response: 49.2 employment, and health characteristics Administration, Labor. minutes. of hired crop farm workers, including Estimated Total Annual Burden ACTION: Notice. workers brought to farms by labor Hours: 1,693. intermediaries. Each year, Total Burden Cost (operating/ SUMMARY: The Department of Labor approximately 1,500 workers are maintaining): $0. (DOL), as part of its continuing effort to randomly chosen for an interview. Comments submitted in response to reduce paperwork and respondent Interviews are conducted three times this comment request will be burden, conducts a preclearance per year to account for the seasonality summarized and/or included in the consultation program to provide the of agricultural production and request for OMB approval of the general public and federal agencies with employment. Several Federal agencies information collection request; they will an opportunity to comment on proposed utilize the NAWS to collect information also become a matter of public record. and/or continuing collections of on the population of hired crop farm information in accordance with the Dated: March 29, 2011. workers. EPA, which has responsibility Jane Oates, Paperwork Reduction Act of 1995 for assessing exposure to pesticides, is (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This Assistant Secretary, Employment and one such agency. These added questions Training Administration. program helps to ensure that requested will provide information that will data can be provided in the desired improve EPA’s ability to assess farm [FR Doc. 2011–7972 Filed 4–4–11; 8:45 am] format, reporting burden (time and workers’ risk of pesticide exposure. BILLING CODE 4510–FN–P financial resources) is minimized, The questions would be piloted in collection instruments are clearly one interview cycle in Fiscal Year 2011 DEPARTMENT OF LABOR understood, and the impact of collection and, depending on the quality of requirements on respondents can be information obtained, would be Occupational Safety and Health properly assessed. administered in all three interview Administration Currently, the Employment and cycles of Fiscal Years 2012 and 2013. Training Administration is soliciting The questions would be administered to [Docket No OSHA–2011–0007] comments concerning the addition of each farm worker who is randomly Maritime Advisory Committee for seven new questions to the National selected for an interview. Agricultural Workers Survey (NAWS) Occupational Safety and Health regarding: (1) The amount of time per II. Review Focus (MACOSH) day farm workers are engaged working DOL is particularly interested in AGENCY: Occupational Safety and Health in specific crops and tasks, and (2) farm comments which: Administration (OSHA), Labor. workers’ clothes laundering and hygiene * Evaluate whether the proposed ACTION: Notice of MACOSH practices. The information obtained collection of information is necessary Membership and Meeting from these questions will improve the for the proper performance of the Announcement Environmental Protection Agency, functions of the agency, including Office of Pesticide Programs’ (EPA/OPP) whether the information will have SUMMARY: In accordance with the ability to assess farm workers’ risk to practical utility; provisions of the Federal Advisory pesticide exposure. There are no known * Evaluate the accuracy of the Committee Act (FACA), as amended (5 national-level studies that assess the agency’s estimate of the burden of the U.S.C., App. 2), and after consultation length of the work day for specific crop- proposed collection of information, with the General Services task combinations. The Office of including the validity of the Administration, the Secretary of Labor Management and Budget (OMB) methodology and assumptions used; announced on January 10, 2011, her authorization for the current NAWS * Enhance the quality, utility, and intention to reestablish the Maritime questionnaire will expire on October 31, clarity of the information to be Advisory Committee for Occupational 2013. collected; and Safety and Health (MACOSH) as being A copy of the proposed information * Minimize the burden of the in the public interest (76 FR 1460). She collection request can be obtained by collection of information on those who signed the MACOSH charter on January contacting the office listed below in the are to respond, including through the 25, 2011, which, pursuant to FACA, will addressee section of this notice. use of appropriated automated, expire after two years on January 25,

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2013. On March 29, 2011, the Secretary Instructions: All submissions must incidence of work-related fatalities, of Labor selected and approved 15 include the Agency name and docket injuries, and illnesses. OSHA has members to serve on the Committee. number for this Federal Register notice targeted this industry for special MACOSH will contribute to OSHA’s (Docket No. OSHA–2011–0007). attention due to that experience. This performance of the duties imposed by Because of security-related procedures, targeting has included development of the Occupational Safety and Health Act submissions by regular mail may result guidance or outreach materials specific of 1970 (29 U.S.C. 651 et seq.). in a significant delay in receipt. Please to the industry, rulemakings to update The first meeting of the reestablished contact the OSHA Docket Office for requirements, and other activities. MACOSH Committee will be held on information about security procedures MACOSH will advise the Secretary April 19 and 20, 2011, in Washington, for making submissions by hand through the Assistant Secretary of Labor DC. delivery, express delivery, messenger, or for Occupational Safety and Health on DATES: MACOSH meeting: MACOSH courier service. matters relevant to the safety and health will meet from 8:30 a.m. to 5 p.m. on Written statements and requests to of employees in the maritime industry. April 19 and 20, 2011. speak, including personal information The Committee’s advice will result in Submission of written statements, provided, will be placed in the public more effective enforcement, training and requests to speak, and requests for docket and may be available online. outreach programs, and streamlined special accommodation: Written Therefore, OSHA cautions interested regulatory efforts. The Committee will statements, requests to speak at the parties about submitting personal function solely as an advisory body, in MACOSH meeting, and requests for information such as social security compliance with the provisions of special accommodations for the numbers and birthdates. FACA and OSHA’s regulations covering MACOSH meeting must be submitted Docket: To read or download advisory committees (29 CFR Part 1912). documents in the public docket for this (postmarked, sent, transmitted) by April II. Appointment of Committee Members 11, 2011. MACOSH meeting, go to http:// OSHA received nominations of highly ADDRESSES: MACOSH meeting: www.regulations.gov. All documents in qualified individuals in response to the MACOSH will meet in room N–3437 A/ the public docket are listed in the index; Agency’s request for nominations (75 FR B/C, U.S. Department of Labor, 200 however, some documents (e.g., 13785, March 23, 2010). The Secretary Constitution Avenue, NW., Washington, copyrighted material) are not publicly has selected to serve on the Committee DC 20210. available to read or download through Submission of written statements and http://www.regulations.gov. All the following individuals who have requests to speak: You may submit submissions are available for inspection broad experience relevant to the issues written statements and requests to speak and, where permitted, copying at the to be examined by the Committee. The at the MACOSH meeting, identified by OSHA Docket Office at the address MACOSH members are: docket number for this Federal Register above. For information on using http:// Karen Conrad, North Pacific Fishing notice (Docket No. OSHA–2011–0007), www.regulations.gov to make Vessel Owners’ Association by one of the following methods: submissions or to access the docket, Phillip Dovinh, Sound Testing, Inc. • Electronically: You may submit click on the ‘‘Help’’ tab at the top of the Captain Cheryl Fairfield Estill, P.E., materials, including attachments, Home page. Contact the OSHA Docket National Institute for Occupational electronically at http:// Office for information about materials Safety and Health (NIOSH) www.regulations.gov, the Federal not available through that Web site and Michael J. Flynn, International eRulemaking Portal. Follow the online for assistance in using the Internet to Association of Machinists and instructions for entering submissions. locate submissions and other documents Aerospace Workers • Facsimile: If your submission, in the docket. Electronic copies of this Kelly Garber, APL Limited Robert Godinez, International including attachments, does not exceed Federal Register notice are available at Brotherhood of Boilermakers—Iron 10 pages, you may fax it to the OSHA http://www.regulations.gov. This notice, Ship Builders Docket Office at (202) 693–1648. as well as news releases and other Lesley E. Johnson, International • Mail, express delivery, messenger, relevant information, is also available Brotherhood of Electrical Workers or courier service: Submit three copies on the OSHA webpage at http:// www.osha.gov. Charles R. Lemon, Washington State of your submissions to the OSHA Department of Labor and Industries Docket Office, Room N–2625, U.S. FOR FURTHER INFORMATION CONTACT: For George S. Lynch, Jr., International Department of Labor, 200 Constitution press inquiries: Camilla F. McArthur, Longshoremen’s Association Avenue, NW., Washington, DC 20210; OSHA’s Office of Communications, U.S. Christopher John McMahon, United telephone: (202) 693–2350 (TTY (877) Department of Labor, Room N–3647, States Maritime Administration (DOT) 899–5627). Deliveries (hand, express 200 Constitution Avenue, NW., Tim Podue, International Longshore and mail, messenger, or courier service) are Washington, DC 20210; telephone: (202) Warehouse Union accepted during the Department of 693–1999. Donald Raffo, General Dynamics Labor’s and the OSHA Docket Office’s For general information about Arthur T. Ross, Texas Terminals L.P. normal business hours, 8:15 a.m. to 4:45 MACOSH and this meeting: Mr. Joseph Kenneth A. Smith, United States Coast p.m. E.T. V. Daddura, Directorate of Standards Guard Requests for special accommodation: and Guidance, OSHA, U.S. Department James R. Thornton, American Industrial Submit requests for special of Labor, Room N–3609, 200 Hygiene Association accommodations for the MACOSH Constitution Avenue, NW., Washington, meeting by hard copy, telephone, or e- DC 20210; telephone: (202) 693–2080; e- III. Meeting mail to Ms. Veneta Chatmon, OSHA, mail [email protected]. All MACOSH meetings and Office of Communications, Room N– SUPPLEMENTARY INFORMATION: workgroup meetings are open to the 3647, U.S. Department of Labor, 200 public. All interested persons are Constitution Avenue, NW., Washington, I. Background invited to attend the MACOSH full- DC 20110; telephone: (202) 693–1999; e- The maritime industry has committee and workgroup meetings at mail [email protected]. historically experienced a high the times and places listed above. The

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tentative agenda of the April 19, 2011 ACTION: Notice of Meeting. Dated: March 29, 2011. MACOSH meeting will include: OSHA P. Diane Rausch, SUMMARY: activities updates from the Directorate In accordance with the Advisory Committee Management Officer, of Standards and Guidance, the Federal Advisory Committee Act, Public National Aeronautics and Space Directorate of Enforcement Programs, Law 92–463, as amended, the National Administration. the Directorate of Technical Support Aeronautics and Space Administration [FR Doc. 2011–7951 Filed 4–4–11; 8:45 am] and Emergency Management, and the announces a meeting of the Exploration BILLING CODE 7510–13–P Directorate of Cooperative and State Committee of the NASA Advisory Programs; and presentations on ethics; Council. the Federal Advisory Committee Act; DATES: Tuesday, April 26, 2011, 1 p.m.– NATIONAL AERONAUTICS AND and administrative functions. The 6 p.m., Local Time SPACE ADMINISTRATION workgroups will meet from 8:30 a.m. ADDRESSES: NASA Headquarters, 300 E [Notice (11–029)] until 12:30 p.m. on April 20, 2011 in Street, SW., Room 7S40, Washington, Room N–3437 A/B/C, and report back to DC 20546 NASA Advisory Council; Information the full committee at 1:30 p.m. The FOR FURTHER INFORMATION CONTACT: Dr. Technology Infrastructure Committee; workgroups will discuss topics on Bette Siegel, Exploration Systems Meeting which they may focus for the duration Mission Directorate, National of this charter of the Committee. AGENCY: National Aeronautics and Aeronautics and Space Administration Public Participation: Interested parties Space Administration. Headquarters, 300 E Street SW., may submit a request to make an oral ACTION Washington, DC 20546, 202/358–2245; : Notice of Meeting. presentation to MACOSH by any one of [email protected]. the methods listed in the ADDRESSES SUMMARY: In accordance with the section above. The request must state SUPPLEMENTARY INFORMATION: The Federal Advisory Committee Act, Public the amount of time requested to speak, agenda topics for the meeting will Law 92–463, as amended, the National the interest represented (e.g., include: Aeronautics and Space Administration organization name), if any, and a brief • Update on the Exploration Program announces a meeting for the Information outline of the presentation. Requests to • Recapturing a Future for Space Technology Infrastructure Committee of address MACOSH may be granted as Exploration: Life and Physical the NASA Advisory Council (NAC). time permits and at the discretion of the Sciences Research for a New Era This Committee reports to the NAC. MACOSH chair. • Commercial Program Status DATES: Tuesday, April 26, 2011, 8:30 Interested parties may also submit • Global Exploration a.m.–5:30 p.m., Local Time. Meet-Me- written statements, including data and The meeting will be open to the Number: 1–877–613–3958; #2939943. other information, using any one of the public up to the seating capacity of the ADDRESSES: NASA Goddard Space methods listed in the ADDRESSES section room. It is imperative that the meeting Flight Center, 8800 Greenbelt Road, above. OSHA will provide all be held on these dates to accommodate Building 12, Room C100D, Greenbelt, submissions to MACOSH members prior the scheduling priorities of the key MD 20771. to the meeting. Individuals who need participants. Visitors will need to show FOR FURTHER INFORMATION CONTACT: Ms. special accommodations to attend the a picture identification such as driver’s Tereda J. Frazier, Executive Secretary MACOSH meeting should contact Ms. license to enter the NASA Headquarters for the Information Technology Chatmon by one of the methods listed building (West Lobby—Visitor Control Infrastructure Committee, National in the ADDRESSES section. Center), and must state they are Aeronautics and Space Administration Authority: David Michaels, PhD, MPH, attending the NASA Advisory Council Headquarters, Washington, DC 20546, Assistant Secretary of Labor for Occupational Exploration Committee meeting in (202) 358–2595. Safety and Health, directed the preparation of Room 7S40. Further, no later than April SUPPLEMENTARY INFORMATION: The topics this notice under the authority granted by 15, 2011, all non-U.S. citizens must Sections 6(b)(1) and 7(b) of the Occupational of discussion for the meeting are the submit the following information to Ms. following: Safety and Health Act of 1970 (29 U.S.C. 655, Shawanda Robinson, Room 7N25, 656), the Federal Advisory Committee Act (5 NASA Headquarters, 300 E Street, SW., • Computing Environment—Diverse U.S.C. App. 2), Secretary of Labor’s Order 4– Needs and Solutions 2010 (75 FR 55355), and 29 CFR part 1912. Washington, DC 20546; Fax (202) 358– 2886: Name, current address, • Network Environment and Mission Signed at Washington, DC, on March 30, citizenship, company affiliation (if Network Support 2011. applicable) to include address, • IT Security Risk Management David Michaels, telephone number, and their title, place • Ethics Briefing Assistant Secretary of Labor for Occupational of birth, date of birth, U.S. visa • IT Committee Work Plan Actions/ Safety and Health. information to include type, number, Assignments/Logistics [FR Doc. 2011–7920 Filed 4–4–11; 8:45 am] and expiration date, U.S. Social Security The meeting will be open to the BILLING CODE 4510–26–P Number (if applicable), Permanent public up to the seating capacity of the Resident Alien card number and room. It is imperative that these expiration date (if applicable), place and meetings be held on this date to NATIONAL AERONAUTICS AND date of entry into the U.S., and passport accommodate the scheduling priorities SPACE ADMINISTRATION information to include country of issue, of the key participants. Visitors will number, and expiration date. To need to show a valid picture [Notice (11–028)] expedite admittance, attendees with identification such as a driver’s license NASA Advisory Council; Exploration U.S. citizenship can provide identifying to enter the NASA Goddard Space Committee; Meeting. information 3 working days in advance Flight Center and must state that they of the meeting day. are attending the NASA Advisory AGENCY: National Aeronautics and For questions, please call Shawanda Council Information Technology Space Administration. Robinson at (202) 358–1566. Infrastructure Committee meeting in

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Building 12, Room C100D. All non-U.S. the [National Labor Relations] Act, or any accident previously evaluated; or citizens must fax a copy of their any court proceedings collateral or (3) involve a significant reduction in a passport, and print or type their name, ancillary thereto.’’ See also 5 U.S.C. margin of safety. The basis for this current address, citizenship, company 552b(c)(10). proposed determination for each affiliation (if applicable) to include DATED: April 1, 2011. amendment request is shown below. address, telephone number, and their CONTACT PERSON FOR MORE INFORMATION: The Commission is seeking public title, place of birth, date of birth, U.S. Lester A. Heltzer, Executive Secretary, comments on this proposed visa information to include type, (202) 273–1067. determination. Any comments received number and expiration date, U.S. Social within 30 days after the date of Security Number (if applicable), and Lester A. Heltzer, publication of this notice will be place and date of entry into the U.S., to Executive Secretary. considered in making any final Ms. Tereda J. Frazier, Executive [FR Doc. 2011–8221 Filed 4–1–11; 4:15 pm] determination. Secretary, Information Technology BILLING CODE 7545–01–P Normally, the Commission will not Infrastructure Committee, NASA issue the amendment until the Advisory Council, at e-mail expiration of 60 days after the date of [email protected] or by NUCLEAR REGULATORY publication of this notice. The Commission may issue the license telephone at (202) 358–2595 by no later COMMISSION than April 19, 2011. To expedite amendment before expiration of the 60- admittance, attendees with U.S. [NRC–2011–0071] day period provided that its final citizenship can provide identifying determination is that the amendment Biweekly Notice; Applications and involves no significant hazards information 3 working days in advance Amendments to Facility Operating by contacting Ms. Tereda J. Frazier via consideration. In addition, the Licenses Involving No Significant Commission may issue the amendment e-mail at [email protected] or by Hazards Considerations telephone at 202–358–2595. Persons prior to the expiration of the 30-day with disabilities who require assistance I. Background comment period should circumstances should indicate this. change during the 30-day comment Pursuant to Section 189a. (2) of the period such that failure to act in a Dated: March 29, 2011. Atomic Energy Act of 1954, as amended timely way would result, for example in P. Diane Rausch, (the Act), the U.S. Nuclear Regulatory derating or shutdown of the facility. Advisory Committee Management Officer, Commission (the Commission or NRC) Should the Commission take action National Aeronautics and Space is publishing this regular biweekly prior to the expiration of either the Administration. notice. The Act requires the comment period or the notice period, it [FR Doc. 2011–7952 Filed 4–4–11; 8:45 am] Commission publish notice of any will publish in the Federal Register a BILLING CODE 7510–13–P amendments issued, or proposed to be notice of issuance. Should the issued and grants the Commission the Commission make a final No Significant authority to issue and make Hazards Consideration Determination, NATIONAL LABOR RELATIONS immediately effective any amendment any hearing will take place after BOARD to an operating license upon a issuance. The Commission expects that determination by the Commission that the need to take this action will occur Sunshine Act Meetings: April 2011 such amendment involves no significant very infrequently. hazards consideration, notwithstanding Written comments may be submitted TIME AND DATES: All meetings are held at the pendency before the Commission of by mail to the Chief, Rules, 2:30 p.m. a request for a hearing from any person. Announcements and Directives Branch Tuesday, April 5; This biweekly notice includes all (RADB), TWB–05–B01M, Division of Wednesday, April 6; notices of amendments issued, or Administrative Services, Office of Thursday, April 7; proposed to be issued from March 10, Administration, U.S. Nuclear Regulatory Tuesday, April 12; 2011, to March 23, 2011. The last Commission, Washington, DC 20555– Wednesday, April 13; biweekly notice was published on 0001, and should cite the publication Thursday, April 14; March 22, 2011 (76 FR 16004). date and page number of this Federal Tuesday, April 19; Register notice. Written comments may Wednesday, April 20; Notice of Consideration of Issuance of also be faxed to the RADB at 301–492– Thursday, April 21; Amendments to Facility Operating 3446. Documents may be examined, Tuesday, April 26; Licenses, Proposed No Significant and/or copied for a fee, at the NRC’s Wednesday, April 27; Hazards Consideration Determination, Public Document Room (PDR), located Thursday, April 28; and Opportunity for a Hearing at One White Flint North, Room O1– PLACE: Board Agenda Room, No. 11820, The Commission has made a F21, 11555 Rockville Pike (first floor), 1099 14th St., NW., Washington DC proposed determination that the Rockville, Maryland 20852. 20570. following amendment requests involve Within 60 days after the date of STATUS: Closed. no significant hazards consideration. publication of this notice, any person(s) MATTERS TO BE CONSIDERED: Pursuant to Under the Commission’s regulations in whose interest may be affected by this § 102.139(a) of the Board’s Rules and Title 10 of the Code of Federal action may file a request for a hearing Regulations, the Board or a panel Regulations (10 CFR), 50.92, this means and a petition to intervene with respect thereof will consider ‘‘the issuance of a that operation of the facility in to issuance of the amendment to the subpoena, the Board’s participation in a accordance with the proposed subject facility operating license. civil action or proceeding or an amendment would not (1) involve a Requests for a hearing and a petition for arbitration, or the initiation, conduct, or significant increase in the probability or leave to intervene shall be filed in disposition * * * of particular consequences of an accident previously accordance with the Commission’s representation or unfair labor practice evaluated; or (2) create the possibility of ‘‘Rules of Practice for Domestic proceedings under section 8, 9, or 10 of a new or different kind of accident from Licensing Proceedings’’ in 10 CFR part

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2. Interested person(s) should consult a applicant on a material issue of law or participating; and (2) advise the current copy of 10 CFR 2.309, which is fact. Contentions shall be limited to Secretary that the participant will be available at the Commission’s PDR, matters within the scope of the submitting a request or petition for located at One White Flint North, Room amendment under consideration. The hearing (even in instances in which the O1–F21, 11555 Rockville Pike (first contention must be one which, if participant, or its counsel or floor), Rockville, Maryland 20852. proven, would entitle the requestor/ representative, already holds an NRC- Publicly available records will be petitioner to relief. A requestor/ issued digital ID certificate. Based upon accessible from the Agencywide petitioner who fails to satisfy these this information, the Secretary will Documents Access and Management requirements with respect to at least one establish an electronic docket for the System’s (ADAMS) Public Electronic contention will not be permitted to hearing in this proceeding if the Reading Room on the Internet at the participate as a party. Secretary has not already established an NRC Web site, http://www.nrc.gov/ Those permitted to intervene become electronic docket. reading-rm/adams.html. If a request for parties to the proceeding, subject to any Information about applying for a a hearing or petition for leave to limitations in the order granting leave to digital ID certificate is available on intervene is filed by the above date, the intervene, and have the opportunity to NRC’s public Web site at http:// Commission or a presiding officer participate fully in the conduct of the www.nrc.gov/site-help/e-submittals/ designated by the Commission or by the hearing. apply-certificates.html. System Chief Administrative Judge of the If a hearing is requested, the requirements for accessing the E- Atomic Safety and Licensing Board Commission will make a final Submittal server are detailed in NRC’s Panel, will rule on the request and/or determination on the issue of no ‘‘Guidance for Electronic Submission,’’ petition; and the Secretary or the Chief significant hazards consideration. The which is available on the agency’s Administrative Judge of the Atomic final determination will serve to decide public Web site at http://www.nrc.gov/ Safety and Licensing Board will issue a when the hearing is held. If the final site-help/e-submittals.html. Participants notice of a hearing or an appropriate determination is that the amendment may attempt to use other software not order. request involves no significant hazards listed on the Web site, but should note As required by 10 CFR 2.309, a consideration, the Commission may that the NRC’s E-Filing system does not petition for leave to intervene shall set issue the amendment and make it support unlisted software, and the NRC forth with particularity the interest of immediately effective, notwithstanding Meta System Help Desk will not be able the petitioner in the proceeding, and the request for a hearing. Any hearing to offer assistance in using unlisted how that interest may be affected by the held would take place after issuance of software. results of the proceeding. The petition the amendment. If the final If a participant is electronically should specifically explain the reasons determination is that the amendment submitting a document to the NRC in why intervention should be permitted request involves a significant hazards accordance with the E-Filing rule, the with particular reference to the consideration, then any hearing held participant must file the document following general requirements: (1) The would take place before the issuance of using the NRC’s online, Web-based name, address, and telephone number of any amendment. submission form. In order to serve the requestor or petitioner; (2) the All documents filed in NRC documents through the Electronic nature of the requestor’s/petitioner’s adjudicatory proceedings, including a Information Exchange System, users right under the Act to be made a party request for hearing, a petition for leave will be required to install a Web to the proceeding; (3) the nature and to intervene, any motion or other browser plug-in from the NRC Web site. extent of the requestor’s/petitioner’s document filed in the proceeding prior Further information on the Web-based property, financial, or other interest in to the submission of a request for submission form, including the the proceeding; and (4) the possible hearing or petition to intervene, and installation of the Web browser plug-in, effect of any decision or order which documents filed by interested is available on the NRC’s public Web may be entered in the proceeding on the governmental entities participating site at http://www.nrc.gov/site-help/e- requestor’s/petitioner’s interest. The under 10 CFR 2.315(c), must be filed in submittals.html. petition must also identify the specific accordance with the NRC E-Filing rule Once a participant has obtained a contentions which the requestor/ (72 FR 49139, August 28, 2007). The E- digital ID certificate and a docket has petitioner seeks to have litigated at the Filing process requires participants to been created, the participant can then proceeding. submit and serve all adjudicatory submit a request for hearing or petition Each contention must consist of a documents over the internet, or in some for leave to intervene. Submissions specific statement of the issue of law or cases to mail copies on electronic should be in Portable Document Format fact to be raised or controverted. In storage media. Participants may not (PDF) in accordance with NRC guidance addition, the requestor/petitioner shall submit paper copies of their filings available on the NRC public Web site at provide a brief explanation of the bases unless they seek an exemption in http://www.nrc.gov/site-help/e- for the contention and a concise accordance with the procedures submittals.html. A filing is considered statement of the alleged facts or expert described below. complete at the time the documents are opinion which support the contention To comply with the procedural submitted through the NRC’s E-Filing and on which the requestor/petitioner requirements of E-Filing, at least ten system. To be timely, an electronic intends to rely in proving the contention (10) days prior to the filing deadline, the filing must be submitted to the E-Filing at the hearing. The requestor/petitioner participant should contact the Office of system no later than 11:59 p.m. Eastern must also provide references to those the Secretary by e-mail at Time on the due date. Upon receipt of specific sources and documents of [email protected], or by telephone a transmission, the E-Filing system which the petitioner is aware and on at 301–415–1677, to request (1) a digital time-stamps the document and sends which the requestor/petitioner intends identification (ID) certificate, which the submitter an e-mail notice to rely to establish those facts or expert allows the participant (or its counsel or confirming receipt of the document. The opinion. The petition must include representative) to digitally sign E-Filing system also distributes an e- sufficient information to show that a documents and access the E-Submittal mail notice that provides access to the genuine dispute exists with the server for any proceeding in which it is document to the NRC Office of the

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General Counsel and any others who or the presiding officer. Participants are 1. Does the proposed change involve a have advised the Office of the Secretary requested not to include personal significant increase in the probability or that they wish to participate in the privacy information, such as social consequences of an accident previously proceeding, so that the filer need not security numbers, home addresses, or evaluated? Response: No. serve the documents on those home phone numbers in their filings, The proposed change allows the participants separately. Therefore, unless an NRC regulation or other law Configuration Risk Management Program applicants and other participants (or requires submission of such (CRMP) to be applied to Technical their counsel or representative) must information. With respect to Specification (TS) 3.7.7, ‘‘Control Room apply for and receive a digital ID copyrighted works, except for limited Makeup and Cleanup Filtration Systems’’ for certificate before a hearing request/ excerpts that serve the purpose of the the condition where one train of CRHVAC petition to intervene is filed so that they adjudicatory filings and would [Control Room Makeup and Cleanup can obtain access to the document via constitute a Fair Use application, Filtration System] is inoperable only due to the unavailability of cooling. The proposed the E-Filing system. participants are requested not to include A person filing electronically using change extends the AOT [allowed outage copyrighted materials in their time] from 72 hours to 7 days for the the agency’s adjudicatory E-Filing submission. condition where two trains of CRHVAC are system may seek assistance by Petitions for leave to intervene must inoperable only due to the unavailability of contacting the NRC Meta System Help be filed no later than 60 days from the cooling. The CRMP cannot be applied to the Desk through the ‘‘Contact Us’’ link date of publication of this notice. Non- loss of two trains of cooling. located on the NRC Web site at http:// timely filings will not be entertained The change does not involve a significant www.nrc.gov/site-help/ absent a determination by the presiding increase in the probability of an accident e-submittals.html, by e-mail at previously evaluated because the change officer that the petition or request does not involve a change to the plant or its [email protected], or by a toll- should be granted or the contentions free call at 1–866–672–7640. The NRC modes of operation. In addition, the risk- should be admitted, based on a informed configuration management program Meta System Help Desk is available balancing of the factors specified in 10 will be applied to effectively manage the between 8 a.m. and 8 p.m., Eastern CFR 2.309(c)(1)(i)–(viii). availability of required structures, systems, Time, Monday through Friday, For further details with respect to this and components to assure there is no excluding government holidays. license amendment application, see the significant increase in the probability of an Participants who believe that they application for amendment which is accident. have a good cause for not submitting This proposed change does not increase available for public inspection at the documents electronically must file an the consequences of an accident because the exemption request, in accordance with Commission’s PDR, located at One design-basis mitigation function of the 10 CFR 2.302(g), with their initial paper White Flint North, Room O1–F21, 11555 affected systems is not changed and the risk- filing requesting authorization to Rockville Pike (first floor), Rockville, informed configuration management program continue to submit documents in paper Maryland 20852. Publicly available will be applied to effectively manage the availability of structures, systems, and format. Such filings must be submitted records will be accessible from the ADAMS Public Electronic Reading components required to mitigate the by: (1) First class mail addressed to the consequences of an accident. Office of the Secretary of the Room on the Internet at the NRC Web site, http://www.nrc.gov/reading-rm/ Therefore, the proposed change does not Commission, U.S. Nuclear Regulatory involve a significant increase in the Commission, Washington, DC 20555– adams.html. Persons who do not have probability or consequences of an accident 0001, Attention: Rulemaking and access to ADAMS or who encounter previously evaluated. Adjudications Staff; or (2) courier, problems in accessing the documents 2. Does the proposed change create the express mail, or expedited delivery located in ADAMS, should contact the possibility of a new or different kind of service to the Office of the Secretary, NRC PDR Reference staff at 1–800–397– accident from any accident previously Sixteenth Floor, One White Flint North, 4209, 301–415–4737, or by e-mail to evaluated? [email protected]. Response: No. 11555 Rockville Pike, Rockville, The proposed change allows the Maryland, 20852, Attention: STP Nuclear Operating Company, Configuration Risk Management Program Rulemaking and Adjudications Staff. Docket Nos. 50–498 and 50–499, South (CRMP) to be applied to Technical Participants filing a document in this Texas Project, Units 1 and 2, Matagorda Specification (TS) 3.7.7, ‘‘Control Room manner are responsible for serving the County, Texas Makeup and Cleanup Filtration Systems’’ for document on all other participants. the condition where one train of CRHVAC is Filing is considered complete by first- Date of amendment request: inoperable only due to the unavailability of class mail as of the time of deposit in November 22, 2010. cooling. The proposed change extends the the mail, or by courier, express mail, or Description of amendment request: AOT from 72 hours to 7 days for the expedited delivery service upon The proposed change would revise the condition where two trains of CRHVAC are inoperable only due to the unavailability of depositing the document with the application of Risk-Managed Technical Specifications (RMTS) to Technical cooling. The CRMP cannot be applied to the provider of the service. A presiding loss of two trains of cooling. officer, having granted an exemption Specification (TS) 3.7.7, ‘‘Control Room The proposed change will not alter the request from using E-Filing, may require Makeup and Cleanup Filtration plant configuration (no new or different type a participant or party to use E-Filing if System.’’ This change will correct a of equipment will be installed) or require any the presiding officer subsequently misapplication of the Configuration Risk unusual operator actions. The proposed determines that the reason for granting Management Program (CRMP) that is change will not alter the way any structure, the exemption from use of E-Filing no currently allowed by the Specification. system, or component functions, and will not longer exists. Basis for proposed no significant significantly alter the manner in which the Documents submitted in adjudicatory hazards consideration determination: plant is operated. The response of the plant and the operators following an accident will proceedings will appear in NRC’s As required by 10 CFR 50.91(a), the not be different. In addition, the proposed electronic hearing docket which is licensee has provided its analysis of the change does not introduce any new failure available to the public at http:// issue of no significant hazards modes. ehd1.nrc.gov/EHD/, unless excluded consideration, which is presented Therefore, the proposed change does not pursuant to an order of the Commission, below: create the possibility of a new or different

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kind of accident from any previously cladding material, and TS 6.9.1.6, ‘‘Core The NRC allows Optimized ZIRLOTM to be evaluated. Operating Limits Report (COLR),’’ to add used as fuel cladding material in 3. Does the proposed change involve a a Westinghouse topical report to the Westinghouse-fueled reactors provided that significant reduction to a margin of safety? analytical methods used to determine licensees ensure compliance with the Response: No. conditions and limitations set forth within The proposed change allows the the core operating limits. This change is NRC Safety Evaluation for the topical report. Configuration Risk Management Program consistent with use of Optimized The conditions and limitations are the (CRMP) to be applied to Technical ZIRLOTM for fuel rod cladding material current requirements and confirmation of Specification (TS) 3.7.7, ‘‘Control Room as described in Addendum 1–A to these conditions is required as part of the Makeup and Cleanup Filtration Systems’’ for Westinghouse topical report WCAP– core reload process. the condition where one train of CRHVAC is 12610–P–A & CENPD–404–P–A, 2. Does the proposed change create the inoperable only due to the unavailability of ‘‘Optimized ZIRLOTM.’’ possibility of a new or different kind of cooling. The proposed change extends the STP Nuclear Operating Company has accident from any accident previously evaluated? AOT from 72 hours to 7 days for the also requested an exemption from the condition where two trains of CRHVAC are Response: No. provisions of 10 CFR 50.46, ‘‘Acceptance TM inoperable only due to the unavailability of Optimized ZIRLO provides a reduced cooling. The CRMP cannot be applied to the criteria for emergency core cooling fuel cladding corrosion rate while loss of two trains of cooling. systems for light-water nuclear power maintaining the benefits of mechanical The CRMP implements a risk-informed reactors,’’ and Appendix K to 10 CFR strength and resistance to accelerated configuration risk management program in a Part 50, ‘‘ECCS Evaluation Models,’’ to corrosion from abnormal chemistry manner to assure that adequate margins of allow fuel rods with Optimized conditions. The fuel rod design bases are safety are maintained. Application of the ZIRLOTM cladding to be used in core established to satisfy the general and specific configuration risk management program to safety criteria addressed in UFSAR [Updated reloads. Final Safety Analysis Report] Chapter 15, TS 3.7.7 complements the risk assessment Basis for proposed no significant required by the Maintenance Rule and Accident Analyses and in Technical hazards consideration determination: Specifications. Fuel rods are designed to effectively manages the risk for limiting As required by 10 CFR 50.91(a), the condition for operation when the Control prevent excessive fuel temperatures, Room Makeup and Cleanup Filtration licensee has provided its analysis of the excessive internal rod gas pressures due to Systems are inoperable. issue of no significant hazards fission gas releases, and excessive cladding The condition where two trains of consideration, which is presented stresses and strains. WCAP–12610–P–A & CENPD–404–P–A, Addendum 1–A CRHVAC are inoperable only due to below: ‘‘Optimized ZIRLO TM,’’ July 2006, provides unavailability of cooling is analogous to the 1. Does the proposed change involve a the details and results of material testing of condition where one train of CRHVAC is significant increase in the probability or Optimized ZIRLO TM compared to standard inoperable due to an adverse impact on the consequences of an accident previously ZIRLO TM as well as the material properties dose mitigation capability. The condition evaluated? to be used in various models and does not make the design basis accident any Response: No. methodologies when analyzing Optimized more probable. The safety function can still The proposed Technical Specification ZIRLO TM. The original design-basis be achieved assuming no single failure TM change is to add Optimized ZIRLO to the requirements are maintained. Therefore, the during the AOT should a low probability allowable or approved cladding materials to change in material does not create the DBA [design-basis accident] occur. Therefore, be used at the South Texas Project. Adding possibility of an accident or malfunction not the extension of the AOT for the loss of two Optimized ZIRLOTM cladding material does previously evaluated. cooling trains to the same AOT as that for the not increase the probability or consequences 3. Does the proposed change involve a loss of one train impacting the dose of an accident previously evaluated. significant reduction in a margin of safety? mitigation function does not significantly Westinghouse topical report WCAP– Response: No. reduce the margin of safety. 12610–P–A & CENPD–404–P–A, Addendum The cladding material used in the fuel rods Therefore, the proposed change does not 1–A ‘‘Optimized ZIRLOTM,’’ July 2006, is designed and tested to prevent excessive involve a significant reduction in a margin of provides the details and results of material fuel temperatures, excessive internal rod gas safety. testing of Optimized ZIRLOTM compared to pressure due to fission gas releases, and TM The NRC staff has reviewed the standard ZIRLO as well as the material excessive cladding stresses and strains. properties to be used in various models and TM licensee’s analysis and, based on this Optimized ZIRLO was developed to meet methodologies when analyzing Optimized these needs and provides a reduced corrosion review, it appears that the standards of ZIRLOTM. As the nuclear industry pursues 10 CFR 50.92(c) are satisfied. Therefore, rate while maintaining the benefits of longer operating cycles with increased fuel mechanical strength and resistance to the NRC staff proposes to determine that discharge burnup and fuel duty, the accelerated corrosion from abnormal the request for amendments involves no corrosion performance requirements for the chemistry conditions. Westinghouse topical significant hazards consideration. nuclear fuel cladding become more report WCAP–12610–P–A & CENPD–404–P– Attorney for licensee: A. H. demanding. Optimized ZIRLOTM was A, ‘‘Optimized ZIRLO TM,’’ July 2006, Gutterman, Esq., Morgan, Lewis & developed to meet these needs and provides provides the details and results of material Bockius, 1111 Pennsylvania Avenue, a reduced corrosion rate while maintaining testing of Optimized ZIRLO TM compared to the benefits of mechanical strength and TM NW., Washington, DC 20004. standard ZIRLO as well as the material resistance to accelerated corrosion from properties to be used in various models and NRC Branch Chief: Michael T. abnormal chemistry conditions. In addition, Markley. methodologies when analyzing Optimized fuel rod internal pressures (resulting from the ZIRLO TM. The NRC approved use of STP Nuclear Operating Company, increased fuel duty, use of integral fuel Optimized ZIRLO TM fuel cladding material burnable absorbers, and corrosion/ as detailed in the Safety Evaluation. The Docket Nos. 50–498 and 50–499, South temperature feedback effects) have become Texas Project, Units 1 and 2, Matagorda original design-basis requirements are more limiting with respect to fuel rod design maintained. County, Texas criteria. Reducing the associated corrosion The change in material does not Date of amendment request: buildup and thus minimizing temperature significantly reduce margin required to December 21, 2010. feedback effects, provides additional margin preclude or reduce the effects of an accident Description of amendment request: to the fuel rod internal pressure design or malfunction previously evaluated in the criterion. Therefore, adding Optimized UFSAR. The proposed change would revise ZIRLOTM to the approved fuel rod cladding Technical Specification (TS) 5.3.1, ‘‘Fuel materials does not significantly increase the The NRC staff has reviewed the Assemblies,’’ to add Optimized probability or consequences of an accident licensee’s analysis and, based on this ZIRLOTM as an approved fuel rod previously evaluated. review, it appears that the standards of

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10 CFR 50.92(c) are satisfied. Therefore, problems in accessing the documents Date of Issuance: March 21, 2011. the NRC staff proposes to determine that located in ADAMS, contact the PDR Effective date: As of the date of the request for amendments involves no Reference staff at 1–800–397–4209, 301– issuance and shall be implemented significant hazards consideration. 415–4737 or by e-mail to within 180 days from the date of Attorney for licensee: A. H. [email protected]. issuance. Gutterman, Esq., Morgan, Lewis & Amendment Nos.: Unit 1–372, Unit Calvert Cliffs Nuclear Power Plant, LLC, Bockius, 1111 Pennsylvania Avenue, 2–374, and Unit 3–373. Docket No. 50–318, Calvert Cliffs NW., Washington, DC 20004. Renewed Facility Operating License NRC Branch Chief: Michael T. Nuclear Power Plant, Unit 2, Calvert County, Maryland Nos. DPR–38, DPR–47, and DPR–55: Markley. Amendments revised the licenses and Notice of Issuance of Amendments to Date of application for amendment: the technical specifications. Facility Operating Licenses October 4, 2010, as supplemented by Date of initial notice in Federal letter dated December 9, 2010. Register: September 7, 2010 (75 FR During the period since publication of Brief description of amendment: The 54393). The supplement dated January the last biweekly notice, the amendment will revise Technical 14, 2011, provided additional Commission has issued the following Specification 5.5.16, ‘‘Containment information that clarified the amendments. The Commission has Leakage Rate Testing Program,’’ to allow application, did not expand the scope of determined for each of these a one-time 5-year extension of the the application as originally noticed, amendments that the application containment Integrated leak rate test complies with the standards and and did not change the staff’s original (CILRT) interval from 10 to 15 years. proposed no significant hazards requirements of the Atomic Energy Act This will require the licensee to perform of 1954, as amended (the Act), and the consideration determination. its next CILRT no later than May 1, The Commission’s related evaluation Commission’s rules and regulations. 2016. The Commission has made appropriate of the amendments is contained in a Date of issuance: March 22, 2011. Safety Evaluation dated March 21, 2011. findings as required by the Act and the Effective date: As of the date of No significant hazards consideration Commission’s rules and regulations in issuance to be implemented within 45 comments received: No. 10 CFR Chapter I, which are set forth in days. the license amendment. Amendment No.: 274. Energy Northwest, Docket No. 50–397, Notice of Consideration of Issuance of Renewed License No. DPR–69: Columbia Generating Station, Benton Amendment to Facility Operating Amendment revised the License and County, Washington License, Proposed No Significant Technical Specifications. Date of amendment request: March Hazards Consideration Determination, Date of initial notice in Federal 29, 2010, as supplemented by letter and Opportunity for A Hearing in Register: January 11, 2011 (76 FR 1646). dated January 14, 2011. connection with these actions was The letter dated December 9, 2010, published in the Federal Register as provided additional information that Brief description of amendment: The indicated. clarified the application, did not expand amendment revised Technical ‘‘ Unless otherwise indicated, the the scope of the application as originally Specification (TS) 3.3.6.1, Primary ’’ Commission has determined that these noticed, and did not change the staff’s Containment Isolation Instrumentation, amendments satisfy the criteria for original proposed no significant hazards by deleting channel check Surveillance categorical exclusion in accordance consideration determination as Requirement 3.3.6.1.1 from TS Table ‘‘ with 10 CFR 51.22. Therefore, pursuant published in the Federal Register. 3.3.6.1–1, Primary Containment to 10 CFR 51.22(b), no environmental The Commission’s related evaluation Isolation Instrumentation,’’ for the impact statement or environmental of the amendment is contained in a traversing in-core probe (TIP) isolation assessment need be prepared for these Safety Evaluation dated March 22, 2011. instrumentation. amendments. If the Commission has No significant hazards consideration Date of issuance: March 18, 2011. prepared an environmental assessment comments received: No. Effective date: As of the date of under the special circumstances issuance and shall be implemented provision in 10 CFR 51.22(b) and has Duke Energy Carolinas, LLC, Docket within 30 days of issuance. made a determination based on that Nos. 50–269, 50–270, and 50–287, Amendment No.: 220. assessment, it is so indicated. Oconee Nuclear Station, Units 1, 2, and Facility Operating License No. NPF– For further details with respect to the 3, Oconee County, South Carolina 21: Amendment revised the Facility action see (1) The applications for Date of application of amendments: Operating License and Technical amendment, (2) the amendment, and (3) March 17, 2010, as supplemented Specifications. the Commission’s related letter, Safety January 14, 2011. Date of initial notice in Federal Evaluation and/or Environmental Brief description of amendments: The Register: June 1, 2010 (75 FR 30444). Assessment as indicated. All of these amendments revised the Technical The supplemental letter dated January items are available for public inspection Specifications (TSs) to adopt Technical 14, 2011, provided additional at the Commission’s Public Document Specification Task Force (TSTF)—425, information that clarified the Room (PDR), located at One White Flint Revision 3, ‘‘Relocate Surveillance application, did not expand the scope of North, Room O1–F21, 11555 Rockville Frequencies to Licensee Control—Risk the application as originally noticed, Pike (first floor), Rockville, Maryland Informed TSTF Initiative 5b’’. When and did not change the staff’s original 20852. Publicly available records will be implemented, TSTF–425 Revision 3 proposed no significant hazards accessible from the Agencywide relocates specific periodic frequencies consideration determination as Documents Access and Management of TSs surveillances to a licensee- published in the Federal Register. System (ADAMS) Public Electronic controlled program, the Surveillance The Commission’s related evaluation Reading Room on the internet at the Frequency Control Program, and will of the amendment is contained in a NRC Web site, http://www.nrc.gov/ provide requirements for the new Safety Evaluation dated March 18, 2011. reading-rm/adams.html. If you do not program in the Administrative Controls No significant hazards consideration have access to ADAMS or if there are section of TSs. comments received: No.

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Entergy Operations, Inc., Docket No. 50– Table of Contents is revised to reflect November 19, 2010, January 31, 2011, 382, Waterford Steam Electric Station, these changes. The addition of LCO and February 23, 2011. Unit 3, St. Charles Parish, Louisiana 3.0.8 is consistent with the industry Brief description of amendments: The amendments modify the Technical Date of amendment request: February Technical Specification Task Force Specifications (TSs) by relocating 22, 2010, as supplemented by letters (TSTF) Traveler TSTF 372–A, Revision specific surveillance frequencies to a dated June 8 and August 12, 2010, and 4, ‘‘Addition of LCO 3.0.8, Inoperability licensee-controlled program. The January 4 and March 7, 2011. of Snubbers.’’ A notice of the TSTF– Brief description of amendment: The 372–A, Revision 4 TS improvement was changes are based on Nuclear amendment added valve SI–4052A published in the Federal Register on Regulatory Commission-approved TS (Reactor Coolant Loop (RCL) 2 May 4, 2005 (70 FR 23252) as part of the Task Force (TSTF) change TSTF–425, ‘‘ Shutdown Cooling (SDC) suction inside Consolidated Line Item Improvement Revision 3, Relocate Surveillance containment bypass isolation) and valve Process. Frequencies to Licensee Control— SI–4052B (RCL 1 SDC suction inside Date of issuance: March 10, 2011. RITSTF [Risk-Informed TSTF] Initiative Effective date: As of the date of ’’ containment bypass isolation) to 5b. issuance to be implemented within 60 Date of issuance: March 21, 2011. Technical Specification Table 3.4–1, days. Effective date: As of the date of ‘‘Reactor Coolant System Pressure Amendment No.: 207. issuance, to be implemented within 120 Isolation Valves.’’ This bypass line Renewed Facility Operating License days. equalizes the SDC system pressure No. DPR–63: The amendment revises Amendment Nos.: 299 and 282. downstream of valve SI–405A (RCL 2 the License and TSs. Facility Operating License Nos. DPR– SDC suction inside containment Date of initial notice in Federal 70 and DPR–75: The amendments isolation) and valve SI–405B (RCL 1 Register: July 13, 2010 (75 FR 39979). revised the TSs and the Facility SDC suction inside containment The Commission’s related evaluation Operating Licenses. isolation) in order to minimize the of the amendment is contained in a Date of initial notice in Federal pressure transient in the system when Safety Evaluation dated March 10, 2011. Register: June 15, 2010 (75 FR 33843). valves SI–405A(B) are opened. No significant hazards consideration The letters dated November 19, 2010, Date of issuance: March 23, 2011. comments received: No. January 31, 2011, and February 23, Effective date: As of the date of 2011, provided clarifying information issuance and shall be implemented Nine Mile Point Nuclear Station, LLC, that did not change the initial proposed prior to Mode 4 following refueling Docket No. 50–220, Nine Mile Point no significant hazards consideration outage 17. Nuclear Station, Unit No. 1 (NMP1), determination or expand the application Amendment No.: 233. Oswego County, New York beyond the scope of the original Federal Facility Operating License No. NPF– Date of application for amendment: Register notice. 38: The amendment revised the Facility March 22, 2010. The Commission’s related evaluation Operating License and Technical Brief description of amendment: The of the amendments is contained in a Specifications. amendment revises the NMP1 Technical Safety Evaluation dated March 21, 2011. Date of initial notice in Federal Specifications (TSs) Surveillance No significant hazards consideration Register: April 20, 2010 (75 FR 20633). Requirement (SR) 4.3.7.b. by modifying comments received: No. The supplemental letters dated June 8 the frequency of this SR from ‘‘at least Southern Nuclear Operating Company, and August 12, 2010, and January 4 and once per operating cycle’’ to ‘‘following Inc., Docket Nos. 50–424 and 50–425, March 7, 2011, provided additional maintenance that could result in nozzle Vogtle Electric Generating Plant, Units 1 information that clarified the blockage.’’ Additionally, the SR is and 2, Burke County, Georgia application, did not expand the scope of revised to be more reflective of the the application as originally noticed, Standard TS SR by deleting references Date of application for amendments: and did not change the staff’s original to the type of test (e.g., air) performed November 23, 2010. proposed no significant hazards and deleting references to the spray Brief description of amendments: The consideration determination as headers. amendments revised the Technical published in the Federal Register. Date of issuance: March 16, 2011. Specifications (TSs) 5.5.9, ‘‘Steam The Commission’s related evaluation Effective date: As of the date of Generator (SG) Program,’’ to exclude of the amendment is contained in a issuance to be implemented within 60 portions of the tube below the top of the Safety Evaluation dated March 23, 2011. days. SG tubesheet from periodic SG tube No significant hazards consideration Amendment No.: 208. inspection for Unit 1 during Refueling comments received: No. Renewed Facility Operating License Outage 16 and the subsequent operating cycle and for Unit 2 during Refueling Nine Mile Point Nuclear Station, LLC, No. DPR–63: The amendment revises Outage 15 and the subsequent operating Docket No. 50–220, Nine Mile Point the License and TSs. cycle. In addition, this amendment Nuclear Station, Unit 1 (NMP1), Oswego Date of initial notice in Federal revised TS 5.6.10, ‘‘Steam Generator County, New York Register: July 13, 2010 (75 FR 39980). The Commission’s related evaluation Tube Inspection Report,’’ to remove the Date of application for amendment: of the amendment is contained in a reference to previous interim alternate March 18, 2010. Safety Evaluation dated March 16, 2011. repair criteria and provide reporting Brief description of amendment: The No significant hazards consideration requirements specific to the temporary amendment revises the NMP1 Technical comments received: No. alternate repair criteria. Specifications (TSs) for snubbers by Date of issuance: March 14, 2011. PSEG Nuclear LLC, Docket Nos. 50–272 removing TS 3⁄4.6.4, ‘‘Shock Suppressors Effective date: As of the date of (Snubbers),’’ relocating these and 50–311, Salem Nuclear Generating issuance and shall be implemented requirements to a licensee-controlled Station, Unit 1 and 2, Salem County, within 30 days from the date of document, and adding a new limiting New Jersey issuance. condition for operation, LCO 3.0.8, Date of application for amendments: Amendment Nos.: Unit 1–160 and related to snubbers. In addition, the TS March 23, 2010, as supplemented on Unit 2–142.

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Facility Operating License Nos. NPF– For the Nuclear Regulatory Commission. persons that the NRC will not edit their 68 and NPF–81: Amendments revised Joseph G. Giitter, comments to remove any identifying or the licenses and the technical Director, Division of Operating Reactor contact information, and therefore, they specifications. Licensing, Office of Nuclear Reactor should not include any information in Regulation. their comments that they do not want Date of initial notice in Federal [FR Doc. 2011–7740 Filed 4–4–11; 8:45 am] publicly disclosed. Register: January 4, 2011 (76 FR 388). BILLING CODE 7590–01–P Federal Rulemaking Web site: Go to The Commission’s related evaluation http://www.regulations.gov and search of the amendments is contained in a for documents filed under Docket ID Safety Evaluation dated March 14, 2011. NUCLEAR REGULATORY NRC–2011–0073. Address questions No significant hazards consideration COMMISSION about NRC dockets to Carol Gallagher comments received: No. 301–492–3668; e-mail [NRC–2010–0073] [email protected]. STP Nuclear Operating Company, Proposed Generic Communication; Mail comments to: Cindy Bladey, Docket Nos. 50–498 and 50–499, South Licensee Justification of Long-Term Chief, Rules, Announcements, and Texas Project, Units 1 and 2, Matagorda Surveillance Charge Directives Branch (RADB), Office of County, Texas Administration, Mail Stop: TWB–05– AGENCY: Nuclear Regulatory B01M, U.S. Nuclear Regulatory Date of amendment request: May 18, Commission. Commission, Washington, DC 20555– 2010, as supplemented by letter dated ACTION: Notice of opportunity for public 0001, or by fax to RADB at 301–492– October 5, 2010. comment. 3446. Brief description of amendments: The You can access publicly available amendments eliminated the Residual SUMMARY: The U.S. Nuclear Regulatory documents related to this notice using Heat Removal (RHR) system design Commission (NRC) is proposing to issue the following methods: criterion for diversity among the three a regulatory issue summary (RIS) to re- NRC’s Public Document Room (PDR): Reactor Coolant System pressure affirm its existing interpretation of the The public may examine and have transmitters that generate interlocks for regulatory policy regarding the scope copied for a fee publicly available three series-pairs of RHR suction and corresponding dollar amount of the documents at the NRC’s PDR, Room O1 isolation valves. The change allows long-term surveillance charge (LTSC) to F21, One White Flint North, 11555 similarly qualified pressure transmitters be paid to the general treasury of the Rockville Pike, Rockville, Maryland 20852. to be used in more than one RHR train United States, or to an appropriate State NRC’s Agencywide Documents as necessary regardless of manufacturer agency. This LTSC is paid prior to the transfer of title to a uranium mill, Access and Management System of the transmitters. The revision is (ADAMS): Publicly available documents incorporated in the Updated Final covered by Title II of the Uranium Mill Tailings Radiation Control Act created or received at the NRC are Safety Analysis Report for South Texas available electronically at the NRC’s Project, Units 1 and 2. (UMTRCA) of 1978 (UMTRCA Title II site), to the long-term custodian for Electronic Reading Room at http:// Date of issuance: March 22, 2011. long-term care and license termination. www.nrc.gov/reading-rm/adams.html. Effective date: As of the date of This Federal Register notice is available From this page, the public can gain issuance and shall be implemented through the NRC’s Agencywide entry into ADAMS, which provides text within 60 days of issuance. Documents Access and Management and image files of NRC’s public documents. If you do not have access to Amendment Nos.: Unit 1–194; Unit System (ADAMS) under accession number ML102080569. ADAMS or if there are problems in 2–182. accessing the documents located in DATES: Comment period expires May 5, Facility Operating License Nos. NPF– 2011. Comments submitted after this ADAMS, contact the NRC’s PDR 76 and NPF–80: The amendments date will be considered if it is practical reference staff at 1–800–397–4209, 301– revised the Facility Operating Licenses to do so, but assurance of consideration 415–4737, or by e-mail to and Updated Final Safety Analysis cannot be given except for comments [email protected]. Federal Rulemaking Web site: Public Report. received on or before this date. comments and supporting materials Date of initial notice in Federal ADDRESSES: You may submit comments related to this notice can be found at Register: September 21, 2010 (75 FR by any one of the following methods. http://www.regulations.gov by searching 57528). The supplemental letter dated Please include Docket ID NRC–2011– on Docket ID: NRC–2011–0073. October 5, 2010, provided additional 0073 in the subject line of your FOR FURTHER INFORMATION CONTACT: Mr. information that clarified the comments. Comments submitted in application, did not expand the scope of Roman A. Przygodzki at 301–415–5143 writing or in electronic form will be or by e-mail at the application as originally noticed, posted on the NRC website and on the [email protected]. and did not change the staff’s original Federal rulemaking website proposed no significant hazards Regulations.gov. Because your SUPPLEMENTARY INFORMATION: consideration determination as comments will not be edited to remove Draft Regulatory Issue Summary 2010– published in the Federal Register. any identifying or contact information, XX, ‘‘Licensee Justification of Long- The Commission’s related evaluation the NRC cautions you against including Term Surveillance Charge’’ any information in your submission that of the amendments is contained in a Addressees Safety Evaluation dated March 22, 2011. you do not want to be publicly disclosed. All holders of operating licenses for No significant hazards consideration The NRC requests that any party conventional or heap leach uranium comments received: No. soliciting or aggregating comments recovery facilities, all holders of Dated at Rockville, Maryland, this 23rd day received from other persons for licenses for conventional or heap leach of March 2011. submission to the NRC inform those uranium recovery facilities in

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decommissioning, and all companies will have a baseline to determine changes to needed site surveillance and control that have submitted applications to the site and when these changes are serious activities, in certain cases. For instance, construct new conventional or heap enough to require maintenance or repairs. sites with alternate concentration limits leach uranium recovery facilities or (b)(3) A description of the long-term (ACLs) may require increased surveillance program, including proposed letters of intent to submit such inspection frequency and reporting to the groundwater monitoring not covered by applications, and all UMTRCA Title II Commission (as specified in appendix A, the ‘‘passive monitoring’’ approach sites. Criterion 12 of this part), frequency and assumed in the development of the extent of ground water monitoring if minimum LTSC. Intent required, appropriate constituent In a letter dated June 17, 2010, NRC NRC is issuing this RIS to reiterate its concentration limits for ground water, responded to DOE’s query with regard policy regarding the Long-Term inspection personnel qualifications, to what long-term care activities would Surveillance Charge (LTSC) for the inspection procedures, recordkeeping and merit an increase in the LTSC (ADAMS applicable uranium recovery facilities. quality assurance procedures. (emphasis added) accession number ML100670337). It is This RIS, among other things, discusses the intent of this RIS to further clarify NRC’s existing policy regarding the Additionally, prior to license the matters discussed in that letter, as scope and corresponding dollar amount termination, all operators of uranium well as state NRC’s intent with regard to of the LTSC to be paid to the General mills are required to pay an appropriate the review of proposed LTSCs and Treasury of the United States, or to an LTSC to the General Treasury of the financial assurance. appropriate State agency, prior to the United States, or the appropriate State transfer of title to the long-term agency, as stated in the following Summary of Issue custodian for long-term care and license excerpt from Criterion 10 to Appendix Pursuant to Criterion 10 to Appendix termination. No specific action or A of 10 CFR Part 40: A of 10 CFR 40, an escalation in the written response is required. A minimum charge of $250,000 (1978 LTSC from the minimum charge amount dollars) to cover the costs of long-term is within NRC’s regulatory authority: Background surveillance must be paid by each mill If site surveillance or control requirements Both conventional and heap leach operator to the general treasury of the United at a particular site are determined, on the uranium milling processes generate mill States or to an appropriate State agency prior basis of a site-specific evaluation, to be tailings, which are primarily a sandy to the termination of a uranium or thorium significantly greater than those specified in waste material containing the mill license. Criterion 12…variance in funding radioactive decay products from the The LTSC is a one-time charge, in an requirements may be specified by the uranium chains (mainly the Uranium- amount such that an assumed 1 percent Commission. (emphasis added) 238 chain) and heavy metals. During annual real interest rate would provide The NRC’s position on the LTSC— operations, the tailings are deposited in interest income sufficient to cover the described in ‘‘[NRC] Staff Guidance on a tailings impoundment or disposal cell. annual costs of site surveillance the License Termination Process for The goal of the tailings impoundment or incurred by the long-term custodian. Conventional Uranium Mill Licensees,’’ disposal cell is to provide long-term Specifically, the intent of the minimum (ADAMS accession number protection of human health and safety, LTSC is to cover costs of a ‘‘passive ML100840671)—is well established and to protect the environment, and to monitoring’’ approach to site goes back over 13 years. Escalation of isolate the tailings without ongoing surveillance, whose assumptions are the LTSC is consistent with NRC’s maintenance. Specifically, Criterion 1 to described in NUREG–0706, Vol. I, ‘‘Final historical practice. The LTSC of the Appendix A of Title 10 of the Code of Generic Environmental Impact Atlantic Richfield Company’s (ARCO’s) Federal Regulations (CFR), Part 40 (10 Statement of Uranium Milling Project Bluewater Uranium Mill and Tailings CFR 40) states that: M–25,’’ dated September 1980 site was escalated for sampling of (Agencywide Documents Access and groundwater (ML103410026). At the The general goal or broad objective in siting and design decisions is permanent Management System [ADAMS] Sohio Western Mining Company’s L– isolation of tailings and associated accession number ML032751663); Bar uranium mill tailings site, the LTSC contaminants by minimizing disturbance and Appendix R, ‘‘Costs of Post-Operational was escalated for the maintenance dispersion by natural forces, and to do so Site Surveillance’’ of NUREG–0706, Vol. required to address of future without ongoing maintenance. III, ‘‘Final Generic Environmental accumulation of sedimentation in the Criterion 6 to Appendix A of 10 CFR Impact Statement of Uranium Milling diversion channels (ADAMS accession Part 40 states that licensees are required Project M–25—Appendices G–V,’’ dated numbers ML042580467 and to place a cover over the tailings or September 1980 (ADAMS accession ML042580457). wastes ‘‘…which provides reasonable number ML032751669); and ‘‘[NRC] Provided that there is a nexus to assurance of control of radiological Staff Guidance on the License radiological health and safety, the NRC hazards…for 1,000 years, to the extent Termination Process for Conventional may consider escalating the LTSC above reasonably achievable, and, in any case, Uranium Mill Licensees,’’ dated the minimum amount, adjusted to for at least 200 years.’’ November 27, 1996 (ADAMS accession current year dollars. The increased Prior to license termination, a Long- number ML100840671). LTSC would address long-term Term Surveillance Plan (LTSP) is Recently, the U.S. Department of maintenance and control activities if submitted to NRC for review. According Energy (DOE) raised an issue to the NRC site surveillance or control requirements to 10 CFR 40.28(b)(2) and 10 CFR regarding the minimum LTSC amount are expected to be greater than those 40.28(b)(3), cited below, groundwater paid. Specifically, DOE inquired as to specified in Criterion 12 to Appendix A monitoring must be considered in the what long-term care activities would of 10 CFR 40 to cover such measures LTSP, if required: merit an increase in the LTSC above the relied on for the performance of the minimum amount. DOE stated that, tailings impoundment. The NRC may (b)(2) A detailed description, which can be in the form of a reference of the final disposal based on actual costs of site surveillance consider escalating the LTSC for long- site conditions, including existing ground and control activities, the minimum term maintenance and control activities water characterization. This description must amount paid as the LTSC may not be undertaken to ensure maintenance of be detailed enough so that future inspectors sufficient to cover the costs for the radiological health and safety such as,

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but not limited to: (1) Groundwater Public Protection Notification PLACE: Commissioners’ Conference monitoring; (2), rip-rap, erosion or other The NRC may not conduct or sponsor, Room, 11555 Rockville Pike, Rockville, cover repair; (3) fencing; and (4) and a person is not required to respond Maryland. vegetation control. to, a request for information or an STATUS: Public and Closed. Consistent with past practice, on a information collection requirement site-specific basis, NRC staff will Week of April 4, 2011 unless the requesting document continue to work with the custodial displays a currently valid OMB control There are no meetings scheduled for agency and the licensee to address the number. the week of April 4, 2011. LTSC, with any final variances in the funding requirements to be determined Contact Week of April 11, 2011—Tentative solely by the NRC. If the custodial This RIS requires no specific action or There are no meetings scheduled for agency desires to have commitments in written response. If you have any the week of April 11, 2011. the LTSP that exceed the requirements questions about this summary, please Week of April 18, 2011—Tentative set forth in Appendix A of 10 CFR 40 contact the technical contact listed and do not have a nexus to radiological below. Tuesday, April 19, 2011 health and safety (e.g., fencing that is Technical Contact: Roman A. 9 a.m. not necessary to ensure maintenance of Przygodzki, DWMEP/SPB, (301) 415– Briefing on Source Security—Part 37 radiological health and safety), the 5143, E-mail: Rulemaking—Physical Protection of custodial agency would need to identify [email protected]. Byproduct Material (Public a funding mechanism to meet these Note: The NRC’s generic communications Meeting). (Contact: Merri Horn, desired commitments. 301–415–8126.) Annual updates to financial assurance may be found on the NRC public Web site, for decommissioning submitted to NRC http://www.nrc.gov, under Electronic This meeting will be webcast live at Reading Room/Document Collections. should contain a detailed basis (e.g., the Web address—http://www.nrc.gov. unit cost and units) and justification for End of Draft Regulatory Issue Summary Week of April 25, 2011—Tentative the LTSC calculated by the licensee or license applicant. The licensee should Documents may be examined, and/or Thursday, April 28, 2011 consider all activities for site copied for a fee, at the NRC’s Public 9:30 a.m. surveillance and control as specified in Document Room at One White Flint Briefing on the Status of NRC Criterion 12 to Appendix A of 10 CFR North, 11555 Rockville Pike (first floor), Response to Events in Japan and 40, including groundwater monitoring. Rockville, Maryland. Publicly available Briefing on Station Blackout (Public For groundwater monitoring, the records will be accessible electronically Meeting). (Contact: George Wilson, licensee or applicant should specify, from the Agencywide Documents 301–415–1711.) with a sufficient basis, the number of Access and Management System This meeting will be webcast live at wells to be sampled; the frequency of (ADAMS) Public Electronic Reading the Web address—http://www.nrc.gov. sampling; the duration of sampling; and Room on the Internet at the NRC Web the constituents analyzed during long- site, http://www.nrc.gov/NRC/ADAMS/ Week of May 2, 2011—Tentative term site surveillance and control. If site index.html. If you do not have access to Tuesday, May 3, 2011 surveillance or control requirements, ADAMS or if you have problems in 9 a.m. including groundwater monitoring, are accessing the documents in ADAMS, Information Briefing on Emergency expected to be greater than those contact the NRC Public Document Room Preparedness (Public Meeting). specified in Criterion 12 to Appendix A (PDR) reference staff at 1–800–397–4209 (Contact: Robert Kahler, 301–415– of 10 CFR 40, the licensee should fully or 301–415–4737 or by e-mail to 7528.) describe the activities needed with a [email protected]. This meeting will be webcast live at basis for their costs, propose an Dated at Rockville, Maryland, this 28th day escalation in the LTSC, and provide an of March 2011. the Web address—http://www.nrc.gov. overall bottom-line amount, For the Nuclear Regulatory Commission. Week of May 9, 2011—Tentative corresponding to the proposed, Keith I. McConnell, Thursday, May 12, 2011 escalated LTSC. Deputy Director, Decommissioning and Uranium Recovery Licensing Directorate, 9:30 a.m. Federal Register Notification Division of Waste Management and Briefing on the Progress of the Task To be done after the public comment Environmental Protection, Office of Federal Force Review of NRC Processes and period. and State Materials and Environmental Regulations Following the Events in Management Programs. Congressional Review Act Japan (Public Meeting). (Contact: [FR Doc. 2011–8009 Filed 4–4–11; 8:45 am] Nathan Sanfilippo, 301–415–3951.) This RIS is not a rule as designated in BILLING CODE 7590–01–P the Congressional Review Act (5 U.S.C. This meeting will be webcast live at 801–886) and, therefore, is not subject to the Web address—http://www.nrc.gov. the Act. NUCLEAR REGULATORY Week of May 16, 2011—Tentative COMMISSION Paperwork Reduction Act Statement There are no meetings scheduled for the week of May 16, 2011. This RIS contains and references [NRC–2011–0006] information collection requirements that Week of May 23, 2011—Tentative are subject to the Paperwork Reduction Sunshine Federal Register Notice Act of 1995 (44 U.S.C. 3501 et seq.). Friday, May 27, 2011 Existing information collection AGENCY HOLDING THE MEETINGS: Nuclear 9 a.m. requirements were approved by the Regulatory Commission. Briefing on Results of the Agency Office of Management and Budget, DATE: Weeks of April 4, 11, 18, 25, May Action Review Meeting (AARM) approval number 3150–0020. 2, 9, 16, 23, 30, June 6, 13, 2011. (Public Meeting). (Contact: Rani

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Franovich, 301–415–1868.) public meetings in another format (e.g. information is accurate and based on This meeting will be webcast live at braille, large print), please notify Bill valid assumptions and methodology; the Web address—http://www.nrc.gov. Dosch, Chief, Work Life and Benefits and ways in which we can minimize the Branch, at 301–415–6200, TDD: 301– burden of the collection of information Week of May 30, 2011—Tentative 415–2100, or by e-mail at on those who are to respond, through Thursday, June 2, 2011 [email protected]. Determinations the use of appropriate technological on requests for reasonable collection techniques or other forms of 9:30 a.m. accommodation will be made on a case- information technology. Briefing on Human Capital and Equal by-case basis. Approximately 150 SF 2817 forms are Employment Opportunity (EEO) This notice is distributed completed annually by assignees. This (Public Meeting). (Contact: Susan electronically to subscribers. If you no form takes approximately 15 minutes to Salter, 301–492–2206.) longer wish to receive it, or would like complete. The annual estimated burden This meeting will be webcast live at to be added to the distribution, please is 37.5 hours. the Web address—http://www.nrc.gov. contact the Office of the Secretary, For copies of this proposal, contact Week of June 6, 2011—Tentative Washington, DC 20555 (301–415–1969), Cyrus S. Benson by telephone at (202) or send an e-mail to 606–4808, by FAX (202) 606–0910, or Monday, June 6, 2011 [email protected]. by e-mail to [email protected]. 10 a.m. Dated: March 31, 2011. Please include a mailing address with Meeting with the Advisory Committee Rochelle C. Bavol, your request. on Reactor Safeguards (ACRS) Policy Coordinator, Office of the Secretary. DATES: Comments on this proposal (Public Meeting). (Contact: Tanny should be received within 60 calendar [FR Doc. 2011–8160 Filed 4–1–11; 4:15 pm] Santos, 301–415–7270.) days of the date of this publication. BILLING CODE 7590–01–P This meeting will be webcast live at ADDRESSES: Send or deliver comments the Web address—http://www.nrc.gov. to Christopher N. Meuchner, FSA, Life, & Long Term Care Insurances, Federal Week of June 13, 2011—Tentative OFFICE OF PERSONNEL Employee Insurance Operations, MANAGEMENT Thursday, June 16, 2011 Healthcare & Insurance, U.S. Office of 9:30 a.m. Proposed Collection; Comment Personnel Management, 1900 E Street, Briefing on the Progress of the Task Request for Revision of a Currently NW.—Room 2H22, Washington, DC Force Review of NRC Processes and Approved Information Collection: 20415–3661. Regulations Following Events in (OMB Control No. 3206–0230; Standard For Information Regarding Japan (Public Meeting). (Contact: Form [SF] 2817) Administrative Coordination Contact: Nathan Sanfilippo, 301–415–3951.) Cyrus S. Benson, Team Leader, This meeting will be webcast live at AGENCY: Office of Personnel Publications Team, RS/RM/ the Web address—http://www.nrc.gov. Management. Administrative Services, 1900 E Street, ACTION: Notice. NW.—Room 4332, Washington, DC Additional Information 20415, (202) 606–0623. SUMMARY: In accordance with the The April 14, 2011, Briefing on Status U.S. Office of Personnel Management. Paperwork Reduction Act of 1995 (Pub. of NRC Response to Events in Japan and John Berry, Briefing on Radiological Consequences L. 104–13, May 22, 1995), this notice Director. and Potential Health Effects scheduled announces that the Office of Personnel on April 14, 2011, has been cancelled. Management (OPM) intends to submit to [FR Doc. 2011–8050 Filed 4–4–11; 8:45 am] The Information Briefing on Emergency the Office of Management and Budget BILLING CODE 6325–38–P Preparedness previously scheduled on (OMB) a request for review of a revised May 12, 2011, has been rescheduled on information collection. This information OFFICE OF PERSONNEL May 3, 2011. The Briefing on the collection, ‘‘Life Insurance Election’’ MANAGEMENT Progress of the Task Force Review of (OMB Control No. 3206–0230; SF 2817), NRC Processes and Regulations is used by Federal employees and Submission for Review: Request To Following the Events in Japan assignees (those who have acquired Change Federal Employees Health previously scheduled on May 3, 2011, control of an employee/annuitant’s Benefits (FEHB) Enrollment for Spouse has been rescheduled on May 12, 2011. coverage through an assignment or Equity/Temporary Continuation of ‘‘ ’’ The schedule for Commission transfer of the ownership of the life Coverage (TCC) Enrollees/Direct Pay meetings is subject to change on short insurance). Clearance of this form for Annuitants (DPRS 2809) notice. To verify the status of meetings, use by active Federal employees is not call (recording)—(301) 415–1292. required according to the Paperwork AGENCY: U.S. Office of Personnel Contact person for more information: Reduction Act (Pub. L. 98–615). The Management. Rochelle Bavol, (301) 415–1651. Public Burden Statement meets the ACTION: 60-day notice and request for The NRC Commission Meeting requirements of 5 CFR 1320.8(b)(3). comments. Schedule can be found on the Internet Therefore, only the use of this form by at: http://www.nrc.gov/public-involve/ assignees, i.e. members of the public, is SUMMARY: The Retirement Services, public-meetings/schedule.html. subject to the Paperwork Reduction Act. Office of Personnel Management (OPM) The NRC provides reasonable Comments are particularly invited on offers the general public and other accommodation to individuals with whether this information is necessary federal agencies the opportunity to disabilities where appropriate. If you for the proper performance of functions comment on a revised information need a reasonable accommodation to of the Office of Personnel Management, collection request (ICR) 3206–0202, participate in these public meetings, or and whether it will have practical Request to Change Federal Employees need this meeting notice or the utility; whether our estimate of the Health Benefits (FEHB) Enrollment for transcript or other information from the public burden of this collection of Spouse Equity/Temporary Continuation

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of Coverage (TCC) Enrollees/Direct Pay change health benefits enrollment of the agency, including whether the Annuitants. As required by the during open season. information will have practical utility; Paperwork Reduction Act of 1995 (Pub. Analysis: 2. Evaluate the accuracy of the Law 104–13, 44 U.S.C. chapter 35) as Agency: Insurance Operations, agency’s estimate of the burden of the amended by the Clinger-Cohen Act Retirement Services, Office of Personnel proposed collection of information, (Pub. L. 104–106), OPM is soliciting Management. including the validity of the comments for this collection. The Office Title: Request to Change Federal methodology and assumptions used; of Management and Budget is Employees Health Benefits (FEHB) 3. Enhance the quality, utility, and particularly interested in comments Enrollment for Spouse Equity/ clarity of the information to be that: Temporary Continuation of Coverage collected; and 1. Evaluate whether the proposed (TCC) Enrollees/Direct Pay Annuitants. 4. Minimize the burden of the collection of information is necessary OMB Number: 3206–0202. collection of information on those who for the proper performance of functions Frequency: On occasion. are to respond, including through the Affected Public: Individuals or of the agency, including whether the use of appropriate automated, Households. information will have practical utility; electronic, mechanical, or other Number of Respondents: 27,000. 2. Evaluate the accuracy of the Estimated Time Per Respondent: 45 technological collection techniques or agency’s estimate of the burden of the minutes. other forms of information technology, proposed collection of information, Total Burden Hours: 20,250. e.g., permitting electronic submissions including the validity of the of responses. U.S. Office of Personnel Management. methodology and assumptions used; DATES: Comments are encouraged and John Berry, 3. Enhance the quality, utility, and will be accepted until May 5, 2011. This clarity of the information to be Director. process is conducted in accordance with collected; and [FR Doc. 2011–8051 Filed 4–4–11; 8:45 am] 5 CFR 1320.1. 4. Minimize the burden of the BILLING CODE 6325–38–P ADDRESSES: Interested persons are collection of information on those who invited to submit written comments on are to respond, including through the the proposed information collection to use of appropriate automated, OFFICE OF PERSONNEL Office of Information and Regulatory electronic, mechanical, or other MANAGEMENT Affairs, Office of Management and technological collection techniques or Budget, 725 17th Street, NW., other forms of information technology, Submission for Review: Letter Reply Washington, DC 20503, Attention: Desk e.g., permitting electronic submissions To Request for Information (RI 20–64), Officer for the Office of Personnel of responses. Former Spouse Survivor Annuity Election (RI 20–64A), Information on Management or sent via electronic mail DATES: Comments are encouraged and Electing a Survivor Annuity for Your to [email protected] or will be accepted until June 6, 2011. This Former Spouse (RI 20–64B) faxed to (202) 395–6974. process is conducted in accordance with FOR FURTHER INFORMATION CONTACT: A 5 CFR 1320.1. AGENCY: U.S. Office of Personnel copy of this ICR, with applicable Management. ADDRESSES: Interested persons are supporting documentation, may be invited to submit written comments on ACTION: 30-day notice and request for obtained by contacting the Office of the proposed information collection to comments. Information and Regulatory Affairs, U.S. Office of Personnel Management, SUMMARY: The Retirement Services, Office of Management and Budget, 725 Ronald W. Melton, Program Manager, 17th Street, NW., Washington, DC Program Planning and Evaluation, Office of Personnel Management (OPM) offers the general public and other 20503, Attention: Desk Officer for the Federal Employee Insurance Operations, Office of Personnel Management or sent Healthcare & Insurance, 1900 E Street, federal agencies the opportunity to comment on a revised information via electronic mail to NW., Room 3425, Washington, DC _ collection request (ICR) 3206–0235, oira [email protected] or faxed 20415–3650 or send via electronic mail to (202) 395–6974. to [email protected]. Letter Reply to Request for Information, RI 20–64, and Former Spouse Survivor SUPPLEMENTARY INFORMATION: RI 20–64, FOR FURTHER INFORMATION CONTACT: A Annuity Election, RI 20–64A. As Letter Reply to Request for Information, copy of this ICR, with applicable required by the Paperwork Reduction is used by the Civil Service Retirement supporting documentation, may be Act of 1995 (Pub. L. 104–13, 44 U.S.C. System (CSRS) to provide information obtained by contacting the Retirement chapter 35) as amended by the Clinger- about the amount of annuity payable Services Publications Team, Office of Cohen Act (Pub. L. 104–106), OPM is after a survivor reduction, to explain the Personnel Management, 1900 E Street, soliciting comments for this collection. annuity reductions required to pay for NW., Room 4332, Washington, DC The information collection was the survivor benefit, and to give the 20415, Attention: Cyrus S. Benson, or previously published in the Federal beginning rate of survivor annuity. RI sent via electronic mail to Register on November 18, 2010 at 20–64A, Former Spouse Survivor [email protected] or faxed to Volume 75 FR 70710 allowing for a 60- Annuity Election, is used by the CSRS (202) 606–0910. day public comment period. No to obtain a survivor benefits election SUPPLEMENTARY INFORMATION: The comments were received for this from annuitants who are eligible to elect Request to Change Federal Employees information collection. The purpose of to provide survivor benefits for a former Health Benefits (FEHB) Enrollment for this notice is to allow an additional 30 spouse. RI 20–64B, Information on Spouse Equity/Temporary Continuation days for public comments. The Office of Electing a Survivor Annuity for Your of Coverage (TCC) Enrollees/Direct Pay Management and Budget is particularly Former Spouse, is a pamphlet that Annuitants is used by former spouses, interested in comments that: provides important information to Temporary Continuation of Coverage 1. Evaluate whether the proposed retirees under the CSRS who want to recipients, and Direct Pay Annuitants collection of information is necessary provide a survivor annuity for a former who are eligible to elect, cancel, or for the proper performance of functions spouse.

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Analysis 3. Enhance the quality, utility, and OFFICE OF PERSONNEL Agency: Retirement Operations, clarity of the information to be MANAGEMENT Retirement Services, Office of Personnel collected; and Submission for Review: RI 30–10, Management. 4. Minimize the burden of the Title: Letter Reply to Request for collection of information on those who Disabled Dependent Questionnaire are to respond, including through the Information; Former Spouse Survivor AGENCY: U.S. Office of Personnel use of appropriate automated, Annuity Election. Management. OMB Number: 3206–0235. electronic, mechanical, or other technological collection techniques or ACTION: 60-day notice and request for Frequency: On occasion. comments. Affected Public: Individuals or other forms of information technology, Households. e.g., permitting electronic submissions SUMMARY: The Retirement Services, Number of Respondents: 30. of responses. Office of Personnel Management (OPM) Estimated Time Per Respondent: 45 DATES: Comments are encouraged and offers the general public and other minutes for RI 20–64A and 8 minutes will be accepted until May 5, 2011. This Federal agencies the opportunity to for RI 20–64. process is conducted in accordance with comment on an existing information Total Burden Hours: 24. 5 CFR 1320.1. collection request (ICR) 3206–0179, U.S. Office of Personnel Management. ADDRESSES: Interested persons are Disabled Dependent Questionnaire. As John Berry, invited to submit written comments on required by the Paperwork Reduction Director. the proposed information collection to Act of 1995 (Pub. L. 104–13, 44 U.S.C. [FR Doc. 2011–8063 Filed 4–4–11; 8:45 am] Office of Information and Regulatory chapter 35) as amended by the Clinger- BILLING CODE 6325–38–P Affairs, Office of Management and Cohen Act (Pub. L. 104–106), OPM is Budget, 725 17th Street, NW., soliciting comments for this collection. Washington, DC 20503, Attention: Desk The Office of Management and Budget OFFICE OF PERSONNEL Officer for the Office of Personnel is particularly interested in comments MANAGEMENT Management or sent via electronic mail that: to [email protected] or 1. Evaluate whether the proposed Submission for Review: We Need the faxed to (202) 395–6974. collection of information is necessary Social Security Number of the Person FOR FURTHER INFORMATION CONTACT: A for the proper performance of functions Named Below, RI 38–45 copy of this ICR, with applicable of the agency, including whether the supporting documentation, may be information will have practical utility; AGENCY: U.S. Office of Personnel 2. Evaluate the accuracy of the Management. obtained by contacting the Office of Information and Regulatory Affairs, agency’s estimate of the burden of the ACTION: 30-day notice and request for Office of Management and Budget, 725 proposed collection of information, comments. 17th Street, NW., Washington, DC including the validity of the SUMMARY: The Retirement Services, 20503, Attention: Desk Officer for the methodology and assumptions used; Office of Personnel Management (OPM) Office of Personnel Management or sent 3. Enhance the quality, utility, and offers the general public and other via electronic mail to clarity of the information to be Federal agencies the opportunity to [email protected] or faxed collected; and 4. Minimize the burden of the comment on a revised information to (202) 395–6974. collection of information on those who collection request (ICR) 3206–0144, We SUPPLEMENTARY INFORMATION: We Need are to respond, including through the Need the Social Security Number of the the Social Security Number of the use of appropriate automated, Person Named Below, RI 38–45. As Person Named Below, RI 38–45, is used electronic, mechanical, or other required by the Paperwork Reduction by the Civil Service Retirement System technological collection techniques or Act of 1995 (Pub. L. 104–13, 44 U.S.C. and the Federal Employees Retirement other forms of information technology, chapter 35) as amended by the Clinger- System to identify the records of e.g., permitting electronic submissions Cohen Act (Pub. L. 104–106), OPM is individuals with similar or the same of responses. soliciting comments for this collection. names. It is also needed to report The information collection was payments to the Internal Revenue DATES: Comments are encouraged and previously published in the Federal Service. will be accepted until June 6, 2011. This Register on October 6, 2010 at Volume Analysis: process is conducted in accordance with 75 FR 61783 allowing for a 60-day Agency: Retirement Operations, 5 CFR 1320.1. public comment period. No comments Retirement Services, Office of Personnel ADDRESSES: Interested persons are were received for this information Management. invited to submit written comments on collection. The purpose of this notice is Title: We Need the Social Security the proposed information collection to to allow an additional 30 days for public Number of the Person Named Below. U.S. Office of Personnel Management, comments. The Office of Management OMB Number: 3206–0144. Linda Bradford (Acting), Deputy Frequency: On occasion. and Budget is particularly interested in Associate Director, Retirement Affected Public: Individuals or comments that: Operations, Retirement Services, 1900 E Households. 1. Evaluate whether the proposed Street, NW., Room 3305, Washington, Number of Respondents: 3,000. collection of information is necessary DC 20415–3500 or send via electronic Estimated Time Per Respondent: 5 mail to [email protected]. for the proper performance of functions minutes. of the agency, including whether the Total Burden Hours: 250. FOR FURTHER INFORMATION CONTACT: A information will have practical utility; copy of this ICR, with applicable 2. Evaluate the accuracy of the U.S. Office of Personnel Management supporting documentation, may be agency’s estimate of the burden of the John Berry, obtained by contacting the Publications proposed collection of information, Director. Team, Office of Personnel Management, including the validity of the [FR Doc. 2011–8049 Filed 4–4–11; 8:45 am] 1900 E Street, NW., Room 4332, methodology and assumptions used; BILLING CODE 6325–38–P Washington, DC 20415, Attention: Cyrus

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S. Benson, or sent via electronic mail to required review of the interim financial note (‘‘ETN’’) 3 options at the same rates [email protected] or faxed to statements by an independent public for exchange-traded fund (‘‘ETF’’) (202) 606–0910. accountant; and (b) the company’s options.4 SUPPLEMENTARY INFORMATION: independent auditor has resigned, While changes to the Fee Schedule The RI 30–10, Disabled Dependent withdrawn its audit opinion issued pursuant to this proposal are effective Questionnaire, is used to collect April 16, 2010 relating to the audit of upon filing, the Exchange has sufficient information about the medical the company’s consolidated financial designated these changes to be operative condition and earning capacity for the statements as of December 31, 2009, and on April 1, 2011. Office of Personnel Management to be informed the company that the financial The text of the proposed rule change able to determine whether a disabled statements for the quarters ended March is available on the Exchange’s Web site adult child is eligible for health benefits 31, June 30, and September 30, 2010 at http://nasdaqtrader.com/ coverage and/or survivor annuity could no longer be relied upon. micro.aspx?id=PHLXfilings, at the payments under the Civil Service The Commission is of the opinion that principal office of the Exchange, and at Retirement System or the Federal the public interest and the protection of the Commission’s Public Reference Employees Retirement System. investors require a suspension of trading Room. in the securities of the above-listed Analysis II. Self-Regulatory Organization’s company. Statement of the Purpose of, and Agency: Retirement Operations, Therefore, it is ordered, pursuant to Statutory Basis for, the Proposed Rule Retirement Services, Office of Personnel Section 12(k) of the Securities Exchange Change Management. Act of 1934, that trading in the In its filing with the Commission, the Title: Disabled Dependent securities of the above-listed company is Exchange included statements Questionnaire. suspended for the period from 9:30 a.m. concerning the purpose of and basis for OMB Number: 3206–0179. EDT, on April 1, 2011 through 11:59 the proposed rule change and discussed Frequency: On occasion. p.m. EDT, on April 14, 2011. Affected Public: Individuals or any comments it received on the Households. By the Commission. proposed rule change. The text of these Number of Respondents: 2,500. Elizabeth M. Murphy, statements may be examined at the Estimated Time per Respondent: 1 Secretary. places specified in Item IV below. The hour. [FR Doc. 2011–8135 Filed 4–1–11; 11:15 am] Exchange has prepared summaries, set Total Burden Hours: 2,500. BILLING CODE 8011–01–P forth in sections A, B, and C below, of U.S. Office of Personnel Management. the most significant aspects of such statements. John Berry, SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s Director. COMMISSION [FR Doc. 2011–8055 Filed 4–4–11; 8:45 am] Statement of the Purpose of, and BILLING CODE 6325–38–P [Release No. 34–64150; File No. SR–Phlx– Statutory Basis for, the Proposed Rule 2011–38] Change Self-Regulatory Organizations; 1. Purpose SECURITIES AND EXCHANGE NASDAQ OMX PHLX LLC; Notice of The purpose of the proposed rule COMMISSION Filing and Immediate Effectiveness of change is to codify the Exchange’s [File No. 500–1] Proposed Rule Change Relating to existing practice of assessing fees for ETNs transactions in ETN options at the same China Changjiang Mining & New rates for ETF options. Specifically, the Energy Co., Ltd.; Order of Suspension March 30, 2011. Exchange is proposing to amend Section of Trading Pursuant to Section 19(b)(1) of the II of the Exchange’s Fee Schedule, titled Securities Exchange Act of 1934 Equity Options Fees, and Section III, April 1, 2011. 1 2 (‘‘Act’’), and Rule 19b–4 thereunder, titled Singly Listed Options, by It appears to the Securities and notice is hereby given that on March 22, including references to ETNs in those Exchange Commission that there is a 2011, NASDAQ OMX PHLX LLC (‘‘Phlx’’ lack of current and accurate information or ‘‘Exchange’’) filed with the Securities 3 ETNs are also known as ‘‘Index-Linked concerning the securities of China and Exchange Commission (‘‘SEC’’ or Securities,’’ which are designed for investors who Changjiang Mining & New Energy Co., ‘‘Commission’’) the proposed rule desire to participate in a specific market segment Ltd. (‘‘CHJI’’), a Nevada corporation change as described in Items I, II, and by providing exposure to one or more identifiable previously known as North American underlying securities, commodities, currencies, III, below, which Items have been derivative instruments or market indexes of the Gaming and Entertainment Corporation. prepared by the Exchange. The foregoing. Index-Linked Securities are the non- CHJI has headquarters and operations in Commission is publishing this notice to convertible debt of an issuer that have a term of at the People’s Republic of China and solicit comments on the proposed rule least one (1) year but not greater than thirty (30) trades in the over-the-counter market years. Despite the fact that Index-Linked Securities change from interested persons. are linked to an underlying index, each trade as a under the symbol ‘‘CHJI.’’ single, exchange-listed security. Accordingly, rules Questions have arisen regarding the I. Self-Regulatory Organization’s pertaining to the listing and trading of standard accuracy and completeness of Statement of the Terms of Substance of equity options apply to Index-Linked Securities. information contained in CHJI’s public the Proposed Rule Change 4 An ETF is an open-ended registered investment company under the Investment Company Act of filings with the Commission concerning, The Exchange proposes to amend the 1940 that has received certain exemptive relief from among other things, the company’s Exchange’s Fee Schedule to codify the the Commission to allow secondary market trading financial statements for 2009 and 2010. Exchange’s existing practice of assessing in the ETF shares. ETFs are generally index-based CHJI has failed to disclose that (a) the fees for transactions in exchange-traded products, in that each ETF holds a portfolio of securities that is intended to provide investment company filed its last periodic report on results that, before fees and expenses, generally Form 10–Q for the quarter ended 1 15 U.S.C. 78s(b)(1). correspond to the price and yield performance of September 30, 2010 without the 2 17 CFR 240.19b–4. the underlying benchmark index.

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sections. Section II of the Exchange’s all market participants transacting subject line if e-mail is used. To help the Fee Schedule currently states that it equity options in symbols other than Commission process and review your includes options overlying equities, those listed in Section I of the Fee comments more efficiently, please use ETFs, HOLDRS,5 BKX,6 RUT,7 RMN,8 Schedule. only one method. The Commission will MNX 9 and NDX.10 Section III of the post all comments on the Commission’s B. Self-Regulatory Organization’s Exchange’s Fee Schedule currently Internet Web site (http://www.sec.gov/ states that it includes options overlying Statement on Burden on Competition rules/sro.shtml). Copies of the currencies, equities, ETFs, indexes and The Exchange does not believe that submission, all subsequent HOLDRS not listed on another the proposed rule change will impose amendments, all written statements exchange. The Exchange is proposing to any burden on competition not with respect to the proposed rule add ETNS to both Sections II and III and necessary or appropriate in furtherance change that are filed with the assess the same rates that are currently of the purposes of the Act. Commission, and all written assessed ETFs and other equity options communications relating to the C. Self-Regulatory Organization’s today. proposed rule change between the Statement on Comments on the The Exchange is not proposing to Commission and any person, other than Proposed Rule Change Received From amend any fees.11 The Exchange would those that may be withheld from the Members, Participants, or Others apply the same rates that apply to ETFs public in accordance with the today to ETNs. A similar proposal was No written comments were either provisions of 5 U.S.C. 552, will be filed by the Chicago Board Options solicited or received. available for Web site viewing and Exchange, Incorporated (‘‘CBOE’’) to III. Date of Effectiveness of the printing in the Commission’s Public apply the ETF rates to ETNs and include Proposed Rule Change and Timing for Reference Room, 100 F Street, NE., references to ETNs in the fee schedule.12 Commission Action Washington, DC 20549, on official The Exchange is also proposing to business days between the hours of 10 make conforming amendments to the The foregoing rule change has become a.m. and 3 p.m. Copies of the filing also Table of Contents and Section IV, titled effective pursuant to Section will be available for inspection and PIXL Pricing, of the Fee Schedule. 19(b)(3)(A)(ii) of the Act.15 At any time copying at the principal office of the within 60 days of the filing of the 2. Statutory Basis Exchange. All comments received will proposed rule change, the Commission be posted without change; the The Exchange believes that its summarily may temporarily suspend Commission does not edit personal proposal to amend its Fee Schedule is such rule change if it appears to the identifying information from 13 consistent with Section 6(b) of the Act Commission that such action is submissions. You should submit only in general, and furthers the objectives of necessary or appropriate in the public information that you wish to make 14 Section 6(b)(4) of the Act in interest, for the protection of investors, available publicly. particular, in that it is an equitable or otherwise in furtherance of the All submissions should refer to File allocation of reasonable fees and other purposes of the Act. If the Commission Number SR–Phlx-2011–38 and should charges among Exchange members and takes such action, the Commission shall be submitted on or before April 26, other persons using its facilities. institute proceedings to determine 2011. The Exchange believes that it is whether the proposed rule should be reasonable to add ETNs specifically to For the Commission, by the Division of approved or disapproved. Trading and Markets, pursuant to delegated Sections II and III because it would authority.16 codify the Exchange’s existing practice IV. Solicitation of Comments Cathy H. Ahn, of assessing fees for ETN options in a Interested persons are invited to Deputy Secretary. manner similar to ETF options. This submit written data, views, and [FR Doc. 2011–7978 Filed 4–4–11; 8:45 am] proposal would add clarity to the arguments concerning the foregoing, Exchange’s Fee Schedule. including whether the proposed rule BILLING CODE 8011–01–P The Exchange believes that it is change is consistent with the Act. equitable because the fees in Sections II Comments may be submitted by any of and III would be uniformly applied to SECURITIES AND EXCHANGE the following methods: COMMISSION 5 HOLDRS are Holding Company Depository Electronic Comments [Release No. 34–64151; File No. SR–Phlx- Receipts. • Use the Commission’s Internet 2011–40] 6 BKX represents the KBW Bank Index. comment form (http://www.sec.gov/ 7 RUT represents the options on the Russell Self-Regulatory Organizations; Notice ® rules/sro.shtml); or 2000 Index (the ‘‘Full Value Russell Index’’ or of Filing and Immediate Effectiveness ‘‘RUT’’). • Send an e-mail to rule- 8 RMN represents options on the one-tenth value [email protected]. Please include File of Proposed Rule Change by NASDAQ ® 8 Russell 2000 Index (the ‘‘Reduced Value Russell Number SR–Phlx-2011–38 on the OMX PHLX LLC Relating to Rebates Index’’ or ‘‘RMN’’). subject line. and Fees for Adding and Removing 9 MNX represents options on the one-tenth value Liquidity in Select Symbols of the Nasdaq 100 Index traded under the symbol Paper Comments MNX (‘‘MNX’’). March 30, 2011. 10 • NDX represents options on the Nasdaq 100 Send paper comments in triplicate Pursuant to Section 19(b)(1) of the Index 10 traded under the symbol NDX (‘‘NDX’’). to Elizabeth M. Murphy, Secretary, 11 Securities Exchange Act of 1934 This fee proposal would not impact any equity Securities and Exchange Commission, options transacted in any of the symbols which are (‘‘Act’’), 1 and Rule 19b-4 thereunder,2 listed in Section I of the Exchange’s Fee Schedule 100 F Street, NE., Washington, DC notice is hereby given that on March 24, titled ‘‘Rebates and Fees for Adding and Removing 20549–1090. 2011, NASDAQ OMX PHLX LLC (‘‘Phlx’’ Liquidity in Select Symbols.’’ All submissions should refer to File 12 See Securities Exchange Act Release No. 62579 or ‘‘Exchange’’) filed with the Securities (July 28, 2010), 75 FR 47329 (August 5, 2010) (SR– Number SR–Phlx-2011–38. This file CBOE–2010–068). number should be included on the 16 17 CFR 200.30–3(a)(12). 13 15 U.S.C. 78f(b). 1 15 U.S.C. 78s(b)(1). 14 15 U.S.C. 78f(b)(4). 15 15 U.S.C. 78s(b)(3)(A)(ii). 2 17 CFR 240.19b–4.

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and Exchange Commission (‘‘SEC’’ or that are subject to the rebates and fees C. Self-Regulatory Organization’s ‘‘Commission’’) the proposed rule in that section. Among those symbols is Statement on Comments on the change as described in Items I, II, and ON Semiconductor Corp (‘‘ONNN’’), Proposed Rule Change Received From III, below, which Items have been which the Exchange is proposing to Members, Participants, or Others prepared by the Exchange. The remove from the list of Select Symbols. No written comments were either Commission is publishing this notice to The Exchange is also proposing to add solicited or received. solicit comments on the proposed rule Silver Wheaton Corp. (‘‘SLW’’) to the list III. Date of Effectiveness of the change from interested persons. of Select Symbols in Section I. Proposed Rule Change and Timing for I. Self-Regulatory Organization’s While changes to the Fee Schedule Commission Action Statement of the Terms of Substance of pursuant to this proposal are effective the Proposed Rule Change The foregoing rule change has become upon filing, the Exchange has effective pursuant to Section The Exchange proposes to amend designated these changes to be operative 19(b)(3)(A)(ii) of the Act.6 At any time Section I of the Exchange’s Fee on April 1, 2011. within 60 days of the filing of the Schedule titled ‘‘Rebates and Fees for 2. Statutory Basis proposed rule change, the Commission Adding and Removing Liquidity in summarily may temporarily suspend Select Symbols,’’ specifically to amend The Exchange believes that its such rule change if it appears to the the Select Symbols.3 proposal to amend its Fee Schedule is Commission that such action is While changes to the Fee Schedule consistent with Section 6(b) of the Act 4 necessary or appropriate in the public pursuant to this proposal are effective in general, and furthers the objectives of interest, for the protection of investors, upon filing, the Exchange has Section 6(b)(4) of the Act 5 in particular, or otherwise in furtherance of the designated these changes to be operative in that it is an equitable allocation of purposes of the Act. If the Commission on April 1, 2011. takes such action, the Commission shall The text of the proposed rule change reasonable fees and other charges among Exchange members and other persons institute proceedings to determine is available on the Exchange’s Web site whether the proposed rule should be using its facilities. at http://nasdaqtrader.com/ approved or disapproved. micro.aspx?id=PHLXfilings, at the The Exchange believes that it is principal office of the Exchange, and at reasonable to remove ONNN from its list IV. Solicitation of Comments the Commission’s Public Reference of Select Symbols and add SLW to its Interested persons are invited to Room. list of Select Symbols to attract submit written data, views, and arguments concerning the foregoing, II. Self-Regulatory Organization’s additional order flow to the Exchange. including whether the proposed rule Statement of the Purpose of, and The Exchange anticipates that the addition of SLW to Section I of the Fee change is consistent with the Act. Statutory Basis for, the Proposed Rule Comments may be submitted by any of Change Schedule would attract market participants to transact equity options at the following methods: In its filing with the Commission, the the Exchange because of the available Exchange included statements Electronic Comments rebates. In addition, the Exchange concerning the purpose of and basis for • Use the Commission’s Internet the proposed rule change and discussed believes that applying the fees in comment form (http://www.sec.gov/ any comments it received on the Section II to ONNN, including the rules/sro.shtml); or proposed rule change. The text of these opportunity to receive payment for • Send an e-mail to rule- statements may be examined at the order flow, would also attract order flow [email protected]. Please include File places specified in Item IV below. The to the Exchange. Number SR–Phlx–2011–40 on the Exchange has prepared summaries, set The Exchange believes that it is subject line. forth in sections A, B, and C below, of equitable to amend the list of Select Paper Comments the most significant aspects of such Symbols by removing ONNN and • statements. Send paper comments in triplicate adding SLW because the list of Select to Elizabeth M. Murphy, Secretary, A. Self-Regulatory Organization’s Symbols would apply uniformly to all Securities and Exchange Commission, Statement of the Purpose of, and categories of participants in the same 100 F Street, NE., Washington, DC Statutory Basis for, the Proposed Rule manner. All market participants who 20549–1090. Change trade the Select Symbols would be All submissions should refer to File subject to the rebates and fees in Section 1. Purpose Number SR–Phlx-2011–40. This file I of the Fee Schedule. Also, all market number should be included on the The purpose of the proposed rule participants would be uniformly subject subject line if e-mail is used. To help the change is to amend the list of Select to the fees in Section II. Commission process and review your Symbols in Section I of the Exchange’s comments more efficiently, please use Fee Schedule, titled ‘‘Rebates and Fees B. Self-Regulatory Organization’s Statement on Burden on Competition only one method. The Commission will for Adding and Removing Liquidity in post all comments on the Commission’s Select Symbols’’ in order to attract The Exchange does not believe that Internet website (http://www.sec.gov/ additional order flow to the Exchange. rules/sro.shtml). Copies of the The Exchange displays a list of Select the proposed rule change will impose any burden on competition not submission, all subsequent Symbols in its Fee Schedule at Section amendments, all written statements I, ‘‘Rebates and Fees for Adding and necessary or appropriate in furtherance of the purposes of the Act. with respect to the proposed rule Removing Liquidity in Select Symbols,’’ change that are filed with the Commission, and all written 3 The term ‘‘Select Symbols’’ refers to the symbols which are subject to the Rebates and Fees for communications relating to the Adding and Removing Liquidity in Section I of the 4 15 U.S.C. 78f(b). Exchange’s Fee Schedule. 5 15 U.S.C. 78f(b)(4). 6 15 U.S.C. 78s(b)(3)(A)(ii).

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proposed rule change between the I. Self-Regulatory Organization’s Narrow-Based Index Future that occurs Commission and any person, other than Description of the Proposed Rule after the time a regulatory halt is those that may be withheld from the Change instituted and before trading has been public in accordance with the The Exchange proposes to amend resumed in the affected Single Stock provisions of 5 U.S.C. 552, will be certain rules relating to the listing and Future or Narrow-Based Index Future. available for website viewing and trading of security futures on the printing in the Commission’s Public Change Quoting Requirements for Exchange. The changes are being Market Makers Reference Room, 100 F Street, NE., proposed to conform certain CFE rules Washington, DC 20549, on official to current parallel rules of OneChicago, CFE is proposing to amend Rule 517 business days between the hours of 10 LLC (‘‘OCX’’). The text of the proposed and CFE Policy and Procedure VII to a.m. and 3 p.m. Copies of the filing also rule change is available on the change the quoting requirements for will be available for inspection and Exchange’s Web site at http:// Market Makers. Presently, a market copying at the principal office of the www.cfe.cboe.com, on the Commission’s maker, when providing quotations, Exchange. All comments received will Web site at http://www.sec.gov, at the quotes with a maximum bid/ask spread be posted without change; the principal office of the Exchange, and at of no more than the greater of $0.20 (the Commission does not edit personal the Commission’s Public Reference ‘‘20 Cent Spread’’) of 150 percent of the identifying information from Room. bid/ask spread in the primary market for submissions. You should submit only the security underlying the Security information that you wish to make II. Self-Regulatory Organization’s Future. The proposed rule change will available publicly. All submissions Statement of the Purpose of, and raise the 20 Cent Spread to $5. This should refer to File Number SR–Phlx– Statutory Basis for, the Proposed Rule change will be affected by amending 2011–40 and should be submitted on or Change subparagraph (n) to Rule 517 and before April 26, 2011. In its filing with the Commission, CFE subparagraph C to CFE Policy and For the Commission, by the Division of included statements concerning the Procedure VII. OCX made a similar rule Trading and Markets, pursuant to delegated purpose of and basis for the proposed change raising its 20 Cent Spread to $5, authority.7 rule change and discussed any which was nearly identical to one Cathy H. Ahn, comments it received on the proposed approved by the SEC for security Deputy Secretary. rule change. The text of these statements options.4 [FR Doc. 2011–7979 Filed 4–4–11; 8:45 am] may be examined at the places specified Maintenance Standard Amendments BILLING CODE 8011–01–P in Item IV below. CFE has prepared summaries, set forth in Sections A, B, First, CFE is proposing to amend CFE and C below, of the most significant Policy and Procedure VIII by SECURITIES AND EXCHANGE aspects of such statements. eliminating the $3 market price COMMISSION maintenance standard. This change will A. Self-Regulatory Organization’s be affected by deleting subparagraph [Release No. 34–64152; File No. SR–CFE– Statement of the Purpose of, and B.1.(v) to CFE Policy and Procedure 2011–001] Statutory Basis for, the Proposed Rule VIII. OCX made a similar rule change Change Self-Regulatory Organizations; CBOE eliminating the $3 market price per Futures Exchange, LLC; Notice of 1. Purpose share requirement, which was nearly identical to one approved by the SEC for Filing and Immediate Effectiveness of The purpose of this proposed rule is security options.5 a Proposed Rule Change To Amend to amend certain rules governing the Second, CFE is proposing to eliminate Certain Rules Relating to Listing and listing and trading of security futures on the prohibition against opening trading Trading Security Futures the Exchange. The changes are being in a Single Stock Future with a new made to conform certain CFE rules to March 30, 2011. delivery month unless the issuer of the current parallel rules of OCX. Pursuant to Section 19(b)(7) of the underlying satisfies applicable Securities Exchange Act of 1934 Regulatory Halt Amendments Exchange Act reporting requirements, or (‘‘Act’’),1 notice is hereby given that on CFE is proposing to amend Rule 417 corrects any failure within 30 days after March 18, 2011, CBOE Futures by adding provisions for regulatory the date the report was due to be filed. Exchange, LLC. (‘‘CFE’’ or ‘‘Exchange’’) halts. OCX made a similar rule change This change will be affected by deleting filed with the Securities and Exchange to make clear that a ‘‘regulatory halt’’ subparagraph B.2.(i) to CFE Policy and Commission (‘‘SEC’’ or ‘‘Commission’’) applies not only to the suspending of all Procedure VIII. OCX made a similar rule the proposed rule change described in trading in equity securities on the change eliminating this maintenance Items I, II, and III below, which Items underlying national securities exchange requirement, which was nearly identical have been prepared by CFE. The but also to a trading pause on an to one approved by the SEC for security Commission is publishing this notice to 6 individual underlying equity security options. solicit comments on the proposed rule that has been imposed by the rules of change from interested persons. CFE 4 the national securities exchange.3 CFE is See Securities Exchange Act Release No. 60143 also filed this proposed rule change (June 19, 2009), 74 FR 30345 (June 25, 2009) (Notice concurrently with the Commodity also proposing to amend CFE Policy and of Filing and Immediate Effectiveness of a Proposed Futures Trading Commission (‘‘CFTC’’). Procedure III by adding a cross- Rule Change Widening the Bid/Ask Spread for reference to Rule 417 and setting forth Quoting Market-Makers) (SR–OC–2009–02). CFE filed a written certification with the 5 the ability of the help desk to bust any See Securities Exchange Act Release No. 59744 CFTC under Section 5c(c) of the (April 9, 2009), 74 FR 17706 (April 16, 2009) Commodity Exchange Act (‘‘CEA’’) 2 on trade in a Single Stock Future or in a (Notice of Filing and Immediate Effectiveness of a March 18, 2011. Proposed Rule Change Eliminating the $3 Market 3 See Securities Exchange Act Release No. 62582 Price Maintenance Standard) (SR–OC–2009–01). (July 28, 2010), 75 FR 47039 (August 4, 2010) 6 See Securities Exchange Act Release No. 54454 7 17 CFR 200.30–3(a)(12). (Notice of Filing and Immediate Effectiveness of a (September 15, 2006), 71 FR 5539 (September 22, 1 15 U.S.C. 78s(b)(7). Proposed Rule Change by OneChicago, Amending 2006) (Notice of Filing and Immediate Effectiveness 2 7 U.S.C. 7a–2(c). Rule 419(a), Regulatory Halts) (SR–OC–2010–03). of a Proposed Rule Change Relating to Listing

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New Listing Standard Conforming With C. Self-Regulatory Organization’s available for Web site viewing and Joint Order Statement on Comments on the printing in the Commission’s Public Proposed Rule Change Received From Reference Room, 100 F Street, NE., CFE is proposing to conform its listing Members, Participants, or Others Washington, DC 20549, on official standards to those approved by the SEC business days between the hours of 10 and the Commodity Futures Trading No written comments were solicited or received with respect to the proposed a.m. and 3 p.m. Copies of the filing also Commission in their Joint Order dated rule change. will be available for inspection and November 19, 2009.7 To affect this copying at the principal office of the change, CFE is proposing to add new III. Date of Effectiveness of the Exchange. All comments received will paragraph E to CFE Policy and Proposed Rule Change and Timing for be posted without change; the Procedure VIII that references the Joint Commission Action Commission does not edit personal Order and provides that, ‘‘the Exchange The proposed rule change has become identifying information from may list security futures on any security effective on March 22, 2011. submissions. You should submit only that is eligible to underlie options on a At any time within 60 days of the date information that you wish to make national securities exchange.’’ CFE notes of effectiveness of the proposed rule available publicly. All submissions that OCX made a similar change change, the Commission, after should refer to File Number SR–CFE– conforming its listing standards to those consultation with the CFTC, may 2011–001 and should be submitted on set forth in the Joint Order.8 summarily abrogate the proposed rule or before April 26, 2011. change and require that the proposed For the Commission, by the Division of 2. Statutory Basis rule change be refiled in accordance Trading and Markets, pursuant to delegated authority.11 The Exchange believes that the with the provisions of Section 19(b)(1) proposed rule change is consistent with of the Act. Cathy H. Ahn, Deputy Secretary. Section 6(b) 9 of the Securities Exchange IV. Solicitation of Comments Act (the ‘‘Act’’), in general, and furthers [FR Doc. 2011–7980 Filed 4–4–11; 8:45 am] 10 Interested persons are invited to BILLING CODE 8011–01–P the objectives of Section 6(b)(5) in submit written data, views, and particular in that it is designed to arguments concerning the foregoing, prevent fraudulent and manipulative including whether the proposed rule SECURITIES AND EXCHANGE acts and practices, to promote just and change is consistent with the Act. COMMISSION equitable principles of trade, to foster Comments may be submitted by any of cooperation and coordination with the following methods: [Release No. 34–64157; File No. SR–Phlx– persons engaged in facilitating 2011–15] Electronic Comments transactions in securities, and to remove Self-Regulatory Organizations; • impediments to and perfect the Use the Commission’s Internet NASDAQ OMX PHLX LLC; Order mechanism of a free and open market comment form (http://www.sec.gov/ Granting Approval of Proposed Rule and a national market system. The rules/sro.shtml); or Change To Expand the $2.50 Strike • proposed rule change updates certain Send an e-mail to rule- Price Program CFE listing and trading rules for security [email protected]. Please include File futures and conforms them to ones Number SR–CFE–2011–001 on the March 31, 2011. subject line. previously changed by OCX for security I. Introduction futures. Paper Comments On February 2, 2011, NASDAQ OMX B. Self-Regulatory Organization’s • Send paper comments in triplicate PHLX LLC (‘‘Phlx’’ or ‘‘Exchange’’) filed Statement on Burden on Competition to Elizabeth M. Murphy, Secretary, with the Securities and Exchange Securities and Exchange Commission, Commission (‘‘Commission’’), pursuant CFE does not believe that the 100 F Street, NE., Washington, DC to Section 19(b)(1) of the Securities proposed rule change will impose any 20549–1090. Exchange Act of 1934 (‘‘Act’’) 1 and Rule 2 burden on competition not necessary or All submissions should refer to File 19b–4 thereunder, a proposed rule appropriate in furtherance of the Number SR–CFE–2011–001. This file change to expand the $2.50 Strike Price purposes of the Act. number should be included on the Program. The proposed rule change was subject line if e-mail is used. To help the published for comment in the Federal 3 Commission process and review your Register on February 22, 2011. The comments more efficiently, please use Commission received no comment only one method. The Commission will letters on the proposal. This order Standards of Security Futures Products) (SR–OC– approves the proposed rule change. 2006–02). post all comments on the Commission’s 7 74 FR 61380 (November 24, 2009). Internet Web site (http://www.sec.gov/ II. Description of the Proposal 8 rules/sro.shtml). Copies of the See Securities Exchange Act Release No. 61346 Phlx has proposed to modify submission, all subsequent (January 13, 2010), 75 FR 3515 (January 21, 2010) Exchange Rule 1012, Series of Options (Notice of Filing and Immediate Effectiveness of a amendments, all written statements Open for Trading, to expand the range Proposed Rule Change, as Modified by Amendment with respect to the proposed rule of option strike prices for which $2.50 No. 1, Changing Its Listing Standards in change that are filed with the strike price intervals may be listed Conformance with the November 9, 2009 Joint Commission, and all written Order Modifying the Listing Standards under the $2.50 Strike Price Program Requirements under Section 6(h) of the Securities communications relating to the proposed rule change between the Exchange Act of 1934 and the Criteria under 11 17 CFR 200.30–3(a)(12). Section 2(a)(1) of the Commodity Exchange Act) Commission and any person, other than 1 15 U.S.C. 78s(b)(1). (SR–OC–2009–04). those that may be withheld from the 2 17 CFR 240.19b–4. 9 15 U.S.C. 78f(b). public in accordance with the 3 Securities Exchange Act Release No. 63914 10 15 U.S.C. 78f(b)(5). provisions of 5 U.S.C. 552, will be (February 15, 2011), 76 FR 9846 (‘‘Notice’’).

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(‘‘Program’’) from between $50 and $75 proliferation of options series and the Commodity Exchange Act (‘‘CEA’’) 2 on to between $50 and $100, provided the corresponding increase in quotes and March 18, 2011. $2.50 strike price intervals are no more market fragmentation. The Commission I. Self-Regulatory Organization’s than $10 from the closing price of the expects the Exchange to monitor the Description of the Proposed Rule underlying stock in the primary market. trading volume associated with the Change The Exchange also proposed to increase additional options series listed as a the number of option classes on result of this proposal and the effect of The Exchange proposes to amend its individual stocks, from 46 to 60, that it these additional series on market rules to permit the Exchange to list and may select for the Program.4 fragmentation and on the capacity of the trade the Gold ETF Volatility Index In support of its proposal, Phlx stated Exchange’s, OPRA’s, and vendors’ (‘‘GVZ’’) security futures contract. The that $2.50 strike intervals above $75 automated systems. text of the proposed rule change is would afford investors the ability to In addition, the Commission notes available on the Exchange’s Web site at more closely tailor investment strategies that Phlx has represented that it believes http://www.cfe.cboe.com, on the to the precise movement of the the Exchange and the Options Price Commission’s Web site at http:// underlying security. The Exchange also Reporting Authority have the necessary www.sec.gov, at the principal office of stated that the number of option classes systems capacity to handle the the Exchange, and at the Commission’s in the Program has not expanded since additional traffic associated with the Public Reference Room. 1998, although increasingly more newly permitted listings. II. Self-Regulatory Organization’s companies have completed initial IV. Conclusion Statement of the Purpose of, and public offerings since 1998 and Statutory Basis for, the Proposed Rule significantly more options classes are It is therefore ordered, pursuant to Change trading now as compared to 1998. The Section 19(b)(2) of the Act,7 that the Exchange stated that the increase would proposed rule change (SR–Phlx–2011– In its filing with the Commission, CFE allow it to accommodate investor 15) be, and it hereby is, approved. included statements concerning the purpose of and basis for the proposed requests for $2.50 strikes in additional For the Commission, by the Division of options classes. rule change and discussed any Trading and Markets, pursuant to delegated comments it received on the proposed Finally, Phlx stated that it analyzed authority.8 its capacity, and represented that the rule change. The text of these statements Cathy H. Ahn, may be examined at the places specified Exchange and the Options Price Deputy Secretary. Reporting Authority have the necessary in Item IV below. CFE has prepared [FR Doc. 2011–8054 Filed 4–4–11; 8:45 am] summaries, set forth in Sections A, B, systems capacity to handle the potential BILLING CODE 8011–01–P additional traffic that would result from and C below, of the most significant expanding the Program. aspects of such statements. A. Self-Regulatory Organization’s III. Discussion SECURITIES AND EXCHANGE COMMISSION Statement of the Purpose of, and The Commission finds that the Statutory Basis for, the Proposed Rule proposed rule change is consistent with [Release No. 34–64153; File No. SR–CFE– Change the requirements of the Act and the 2011–002] rules and regulations thereunder 1. Purpose applicable to a national securities Self-Regulatory Organizations; CBOE The purpose of this proposed rule exchange.5 Specifically, the Futures Exchange, LLC; Notice of change is to permit the Exchange to list Commission finds that the proposal is Filing and Immediate Effectiveness of and trade security futures on the CBOE consistent with Section 6(b)(5) of the a Proposed Rule Change Relating to Gold ETF Volatility Index (‘‘GVZ’’ or Act,6 which requires, among other Listing and Trading CBOE Gold ETF ‘‘GVZ Index’’). Chicago Board Options things, that the rules of a national Volatility Index Security Futures Exchange, Incorporated (‘‘CBOE’’) securities exchange be designed to March 30, 2011. received approval from the SEC to list and trade GVZ options.3 promote just and equitable principles of Pursuant to Section 19(b)(7) of the Consistent with trade, to prevent fraudulent and Securities Exchange Act of 1934 the Joint Order issued by the SEC and the CFTC dated November 19, 2009 manipulative acts, to remove (‘‘Act’’),1 notice is hereby given that on (Securities Exchange Act Release No. impediments to and perfect the March 18, 2011, CBOE Futures 61027) (‘‘Joint Order’’),4 mechanism of a free and open market Exchange, LLC. (‘‘CFE’’ or ‘‘Exchange’’) the GVZ Index and a national market system, and, in filed with the Securities and Exchange may underlie a security futures contract general, to protect investors and the Commission (‘‘SEC’’ or ‘‘Commission’’) since the GVZ Index is eligible to public interest. the proposed rule change described in underlie options traded on a national The Commission believes that the Items I, II, and III below, which Items securities exchange. proposal strikes a reasonable balance have been prepared by CFE. The Index Design and Calculation between the Exchange’s desire to offer a Commission is publishing this notice to The calculation of GVZ is based on wider array of investment opportunities solicit comments on the proposed rule and the need to avoid unnecessary the VIX methodology applied to options change from interested persons. CFE on the SPDR Gold Trust (‘‘GLD’’). The also filed this proposed rule change 4 In addition, the $2.50 Strike Price Program also permits the Exchange to list any option class with concurrently with the Commodity 2 7 U.S.C. 7a–2(c). $2.50 strike intervals that is included in the $2.50 Futures Trading Commission (‘‘CFTC’’). 3 See Securities Exchange Act Release No. 62139 Strike Price Program of another exchange. See Phlx CFE filed a written certification with the (May 19, 2010) 75 FR 29597 (May 26, 2010) (order Rule 1012, Commentary .05(b). CFTC under Section 5c(c) of the approving proposal to list and trade GVZ options 5 In approving this proposed rule change, the on CBOE). Commission has considered the proposed rule’s 4 74 FR 61380 (November 24, 2009). See also CFE impact on efficiency, competition, and capital 7 15 U.S.C. 78s(b)(2). Policy and Procedure VIII E. (Eligibility for Listing formation. See 15 U.S.C. 78c(f). 8 17 CFR 200.30–3(a)(12). Security Futures on Securities Approved for 6 15 U.S.C. 78f(b)(5). 1 15 U.S.C. 78s(b)(7). Options Trading).

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index was introduced by CBOE on trading hours for GVZ contracts will be positions that are subject to a position August 1, 2008 and has been from 8:30 a.m. Chicago time to 3 p.m. limit exemption meeting the disseminated in real-time on every Exhibit 3 presents contract requirements of CFTC Regulations and trading day since that time.5 GVZ is an specifications for GVZ futures. CFE Rules. The minimum reportable up-to-the-minute market estimate of the Position Limits level for GVZ futures will be 200 expected volatility of GLD calculated by contracts. using real-time bid/ask quotes of GLD The generic formula that is used to Exercise and Settlement options listed on Chicago Board Options calculate position limit levels for cash Exchange, Incorporated. GVZ uses settled Narrow-Based Stock Index The final settlement date for a GVZ nearby and second nearby options with Futures set forth in CFE Rule 1901(e) futures contract shall be on the third at least 8 days left to expiration and shall not apply to GVZ futures because Friday of the expiring futures contract then weights them to yield a constant, that formula is premised upon an index month. If the third Friday of the 30-day measure of the expected that is comprised of stocks. As expiring month is a CBOE holiday, the (implied) volatility. discussed above, the index components final settlement date for the expiring For each contract month, CBOE will of GVZ are GLD options listed on CBOE. contract shall be the CBOE business day determine the at-the-money strike price. Accordingly, the Exchange is proposing immediately preceding the third Friday. The Exchange will then select the at- to establish position limit levels for GVZ Trading on the GVZ futures contract the-money and out-of-the money series security futures at levels comparable to will terminate on the business day with non-zero bid prices and determine those previously established and immediately preceding the final the midpoint of the bid-ask quote for approved for GVZ options trading by the settlement date of the GVZ futures each of these series. The midpoint quote SEC. Because GVZ futures will have contract for the relevant spot month. of each series is then weighted so that different position limits than under the When the last trading day is moved the further away that series is from the generic formula for cash settled Narrow- because of a CFE holiday, the last at-the-money strike, the less weight that Based Stock Index Futures and for ease trading day for an expiring GVZ futures is accorded to the quote. Then, to of reference of the provisions applicable contract will be the day immediately compute the index level, CBOE will to GVZ futures by CFE market preceding the last regularly-scheduled calculate a volatility measure for the participants, CFE proposes to have a trading day. nearby options and then for the second separate contract specification rule The final-settlement value for GVZ nearby options. This is done using the chapter for GVZ futures in CFE Rule futures shall be a Special Opening weighted mid-point of the prevailing Chapter 16. Quotation (‘‘SOQ’’) of the GVZ Index bid-ask quotes for all included option Specifically, GVZ futures will be calculated from the sequence of opening series with the same expiration date. subject to position limits under CFE prices of a single strip of GLD options These volatility measures are then Rule 412 (Position Limits). A person expiring 30 days after the settlement interpolated to arrive at a single, may not own or control: (1) More than date. The opening price for any series in constant 30-day measure of volatility. 5,000 contracts net long or net short in which there is no trade shall be the CBOE will compute values for the all GVZ futures contracts combined; (2) average of that option’s bid price and GVZ Index underlying security futures more than 3,000 contracts net long or ask price as determined at the opening on a real-time basis throughout each net short in the expiring GVZ futures of trading. Exercise will result in trading day, from 8:30 a.m. until 3 p.m. contract month; and (3) more than 1,350 delivery of cash on the business day (CT). GVZ Index levels will be contracts net long or net short in the following expiration. The final calculated by CBOE and disseminated at expiring GVZ futures contract held settlement value will be rounded to the 15-second intervals to major market data during the last five (5) trading days for nearest $0.01. vendors. the expiring GVZ futures contract Settlement of GVZ futures contracts month.6 For the purposes of this rule, will result in the delivery of a cash Security Futures Trading the positions of all accounts directly or settlement amount on the business day The contract multiplier for each GVZ indirectly owned or controlled by a immediately following the final futures contract will be $1,000.00. For person or persons, and the positions of settlement date. The cash settlement example, a contract size of one GVZ all accounts of a person or persons amount on the final settlement date futures contract would be $18,950 if the acting pursuant to an expressed or shall be the final mark to market amount GVZ Index level were 18.95 (18.95 x implied agreement or understanding against the final settlement price of the $1,000.00). The Exchange may list for shall be cumulated. The proposed GVZ GVZ futures contract multiplied by trading up to nine near-term serial position limits shall not apply to $1,000.00. months and up to five additional If the final settlement value is not months on the February quarterly cycle 6 CFE notes that the proposed 5,000/3,000 available or the normal settlement position limit levels are equivalent to those for the GVZ futures contract. The established for security options trading on the GVZ procedure cannot be utilized due to a minimum fluctuation of the GVZ futures Index (50,000/30,000) when scaled to reflect the trading disruption or other unusual contract will be 0.05 index points, larger size of the futures contract in relation to the circumstance, the final settlement value which has a value of $50.00, except that options contract. See Securities Exchange Release will be determined in accordance with No. 62139 (May 19, 2010), 75 FR 29597 (May 26, the individual legs and net prices of 2010) (SEC order approving listing and trading of the rules and bylaws of The Options spread trades in the GVZ futures GVZ options, including GVZ option position Clearing Corporation (‘‘OCC’’’). limits). See also chart to CBOE Rule 24.4(a). contract may be in increments of 0.01 Eligibility and Maintenance Criteria for index points, which has a value of Similarly, the proposed 1,350 position limit level complies with the provisions of § 41.25(a)(i) of the GVZ Futures $10.00. The trading days for GVZ regulations promulgated by the CFTC under the futures contracts shall be the same CEA. This provision requires the Exchange to adopt Pursuant to Exchange Policy and trading days of GLD options, as those a net position limit of no greater than 13,500 (100- Procedure VIII E. (Eligibility for Listing share) contracts applicable to positions held during Security Futures on Securities days are determined by CBOE. The the last five days of trading of an expiring contract month, and the proposed 1,350 position limit is Approved for Options Trading), the 5 CBOE maintains a micro-site for GVZ options at: equivalent to this level when scaled to reflect the Exchange may list securities futures on http://www.cboe.com/gvz. $1,000 contract multiplier for GVZ futures. GVZ because GVZ is eligible to underlie

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options traded on a national securities Exchange of Contract for Related change, the Commission, after exchange. GVZ security futures shall Position Transactions consultation with the CFTC, may remain eligible for listing and trading on Exchange of Contract for Related summarily abrogate the proposed rule the Exchange so long as GVZ remains Position (‘‘ECRP’’) transactions, as set change and require that the proposed eligible to underlie options traded on a forth in CFE Rule 414, in the GVZ rule change be refiled in accordance national securities exchange. If at any futures contract will be permitted. Any with the provisions of Section 19(b)(1) time GVZ no longer remains eligible to Exchange of Contract for Related of the Act. underlie options traded on a national Position transaction must satisfy the IV. Solicitation of Comments requirements of Rule 414.8 The securities exchange, GVZ shall be Interested persons are invited to minimum price increment for an ECRP ineligible to underlie security futures submit written data, views, and involving the GVZ futures contract will and the Exchange will not open any arguments concerning the foregoing, be 0.01 index points. additional GVZ futures contracts for including whether the proposed rule trading until GVZ becomes eligible Margin change is consistent with the Act. again to underlie options traded on a The customer margin requirements for Comments may be submitted by any of national securities exchange. GVZ futures will be governed by CFE the following methods: Block Trades Rule 517 (Customer Margin Electronic Comments Requirements for Contracts That Are • Use the Commission’s Internet Block trades in the GVZ futures Security Futures). contract will be permitted. Pursuant to comment form (http://www.sec.gov/ 2. Statutory Basis rules/sro.shtml); or CFE Rule 415(a)(i), the minimum Block • Send an e-mail to rule- Trade quantity for the GVZ futures The Exchange believes that the proposed rule change is consistent with [email protected]. Please include File contract will be 200 contracts if there is Number SR–CFE–2011–002 on the 7 Section 6(b) 9 of the Securities Exchange only one leg involved in the trade. If subject line. the Block Trade is executed as a spread Act (the ‘‘Act’’), in general, and furthers 10 order, one leg must meet the minimum the objectives of Section 6(b)(5) in Paper Comments Block Trade quantity for the GVZ particular in that it is designed to • Send paper comments in triplicate futures contract and the other leg(s) prevent fraudulent and manipulative to Elizabeth M. Murphy, Secretary, acts and practices, to promote just and must have a contract size that is Securities and Exchange Commission, equitable principles of trade, to foster reasonably related to the leg meeting the 100 F Street, NE., Washington, DC cooperation and coordination with 20549–1090. minimum Block Trade quantity. If the persons engaged in facilitating Block Trade is executed as a transaction transactions in securities, and to remove All submissions should refer to File with legs in multiple contract months impediments to and perfect the Number SR–CFE–2011–002. This file and all legs of the Block Trade are mechanism of a free and open market number should be included on the exclusively for the purchase or and a national market system, and subject line if e-mail is used. To help the exclusively for the sale of GVZ futures thereby will provide investors with the Commission process and review your contracts (a ‘‘strip’’), the minimum Block ability to use security futures to gain comments more efficiently, please use Trade quantity for the strip will be 300 exposure to or hedge risk associated only one method. The Commission will contracts and each leg of the strip will with GLD volatility. post all comments on the Commission’s be required to have a minimum size of Internet Web site (http://www.sec.gov/ B. Self-Regulatory Organization’s 100 contracts. The minimum price rules/sro.shtml). Copies of the Statement on Burden on Competition increment for a Block Trade in the GVZ submission, all subsequent futures contract will be 0.01 index CFE does not believe that the amendments, all written statements points. proposed rule change will impose any with respect to the proposed rule burden on competition not necessary or change that are filed with the No natural person associated with a appropriate in furtherance of the Commission, and all written Trading Privilege Holder or Authorized purposes of the Act. communications relating to the Trader that has knowledge of a pending proposed rule change between the Block Trade of such Trading Privilege C. Self-Regulatory Organization’s Commission and any person, other than Holder or Authorized Trader, or a Statement on Comments on the those that may be withheld from the Customer thereof in the GVZ future on Proposed Rule Change Received From public in accordance with the the Exchange, may enter an Order or Members, Participants, or Others provisions of 5 U.S.C. 552, will be execute a transaction, whether for his or No written comments were solicited available for Web site viewing and her own account or, if applicable, for or received with respect to the proposed printing in the Commission’s Public the account of a Customer over which rule change. Reference Room, 100 F Street, NE., he or she has control, for or in the GVZ III. Date of Effectiveness of the Washington, DC 20549, on official Future to which such Block Trade Proposed Rule Change and Timing for business days between the hours of 10 relates until after (i) such Block Trade Commission Action a.m. and 3 p.m. Copies of the filing also has been reported to and published by will be available for inspection and the Exchange and (ii) any additional The proposed rule change has become copying at the principal office of the effective on March 25, 2011. time period from time to time Exchange. All comments received will At any time within 60 days of the date be posted without change; the prescribed by the Exchange in its block of effectiveness of the proposed rule trading procedures or contract Commission does not edit personal identifying information from specifications has expired. 8 CFE Rule 414 sets forth the conditions that must be met if ECRP transactions are permitted by the submissions. You should submit only 7 CFE Rule 415 sets forth the conditions that must rules governing a contract. information that you wish to make be met if Block Trades are permitted by the rules 9 15 U.S.C. 78f(b). available publicly. All submissions governing a contract. 10 15 U.S.C. 78f(b)(5). should refer to File Number SR–CFE–

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2011–002 and should be submitted on Frequency: On Occasion. SMALL BUSINESS ADMINISTRATION or before April 25, 2011. SBA Form Numbers: 2410, 2411, For the Commission, by the Division of 2412. Interest Rates Description of Respondents: Small Trading and Markets, pursuant to delegated The Small Business Administration 11 Businesses that have experienced a authority. publishes an interest rate called the physical or economic disaster in a Cathy H. Ahn, optional ‘‘peg’’ rate (13 CFR 120.214) on federally declared disaster. Deputy Secretary. a quarterly basis. This rate is a weighted Responses: 984. [FR Doc. 2011–7981 Filed 4–4–11; 8:45 am] average cost of money to the Annual Burden: 543. BILLING CODE 8011–01–P government for maturities similar to the Jacqueline White, average SBA direct loan. This rate may Chief, Administrative Information Branch. be used as a base rate for guaranteed SMALL BUSINESS ADMINISTRATION [FR Doc. 2011–8092 Filed 4–4–11; 8:45 am] fluctuating interest rate SBA loans. This 3 BILLING CODE 8025–01–P rate will be 3.750 (3 ⁄4) percent for the Reporting and Recordkeeping April–June quarter of FY 2011. Requirements Under OMB Review Pursuant to 13 CFR 120.921(b), the AGENCY: Small Business Administration. SMALL BUSINESS ADMINISTRATION maximum legal interest rate for any third party lender’s commercial loan ACTION: Notice of reporting requirements [License No. 05/05–0293] which funds any portion of the cost of submitted for OMB review. Convergent Capital Partners II, L.P.; a 504 project (see 13 CFR 120.801) shall SUMMARY: Under the provisions of the Notice Seeking Exemption Under be 6% over the New York Prime rate or, Paperwork Reduction Act (44 U.S.C. Section 312 of the Small Business if that exceeds the maximum interest Chapter 35), agencies are required to Investment Act, Conflicts of Interest rate permitted by the constitution or submit proposed reporting and laws of a given State, the maximum recordkeeping requirements to OMB for Notice is hereby given that interest rate will be the rate permitted review and approval, and to publish a Convergent Capital Partners II, L.P., 505 by the constitution or laws of the given notice in the Federal Register notifying North Highway 169, Suite 245, State. the public that the agency has made Minneapolis, MN 55441, a Federal Walter C. Intlekofer, such a submission. Licensee under the Small Business Investment Act of 1958, as amended Acting Director, Office of Financial DATES: Submit comments on or before Assistance. May 5, 2011. If you intend to comment (‘‘the Act’’), in connection with the [FR Doc. 2011–8093 Filed 4–4–11; 8:45 am] but cannot prepare comments promptly, financing of a small concern, has sought please advise the OMB Reviewer and an exemption under Section 312 of the BILLING CODE P the Agency Clearance Officer before the Act and Section 107.730, Financings deadline. which Constitute Conflicts of Interest of Copies: Request for clearance (OMB the Small Business Administration DEPARTMENT OF STATE 83–1), supporting statement, and other (‘‘SBA’’) Rules and Regulations (13 CFR [Public Notice 7408] documents submitted to OMB for 107). Convergent Capital Partners II, review may be obtained from the L.P., proposes to provide debt financing Persons and Entities on Whom Agency Clearance Officer. to Key Health Group, Inc., 30699 Russell Sanctions Have Been Imposed Under ADDRESSES: Address all comments Ranch Road #170, Westlake Village, CA the Iran Sanctions Act of 1996 91362–7315. The financing is concerning this notice to: Agency AGENCY: Department of State. Clearance Officer, Jacqueline White, contemplated to provide capital that ACTION: Notice. Small Business Administration, 409 3rd contributes to the growth and overall Street, SW., 5th Floor, Washington, DC sound financing of the Key Health SUMMARY: The Secretary of State has 20416; and OMB Reviewer, Office of Group, Inc. determined that Belarusneft has engaged Information and Regulatory Affairs, The financing is brought within the in a sanctionable investment described Office of Management and Budget, New purview of § 107.730(a)(1) and in section 5(a)(1) of the Iran Sanctions Executive Office Building, Washington, § 107.730(a)(4) of the Regulations Act of 1996 (ISA) (50 U.S.C. 1701 note) DC 20503. because Convergent Capital Partners II, and that certain sanctions should be FOR FURTHER INFORMATION CONTACT: L.P.’s financing will discharge an imposed as a result. obligation owed to Convergent Capital Jacqueline White, Agency Clearance DATES: Effective April 5, 2011. Partners I, L.P., which is considered an Officer, (202) 205–7044. FOR FURTHER INFORMATION CONTACT: On SUPPLEMENTARY INFORMATION: Associate and because Convergent Capital Partners I, L.P., has a potential general issues: Brian Breuhaus, Office of Title: Guaranteed Disaster Assistance Terrorism Finance and Economic Program Payment Reporting. equity interest in Key Health Group, Inc. of greater than ten percent. Sanctions Policy, Department of State, Frequency: On Occasion. Telephone: (202) 647–5763. For U.S. SBA Form Number: N/A. Notice is hereby given that any Description of Respondents: Small interested person may submit written Government procurement ban issues: Businesses that have experienced a comments on the transaction to the Kimberly Triplett, Office of the physical or economic disaster in a Associate Administrator for Investment Procurement Executive, Department of federally declared disaster. and Innovation, U.S. Small Business State, Telephone: (703) 875–4079. Responses: 5,580. Administration, 409 Third Street, SW., SUPPLEMENTARY INFORMATION: Pursuant Annual Burden: 467. Washington, DC 20416. to the authority delegated to the Title: Immediate Disaster Assistance Secretary of State in the Presidential Loan Program Application and Sean J. Greene, Memorandum of November 21, 1996, 61 Eligibility Data. Associate Administrator for Investment. FR 64249 (the ‘‘Delegation [FR Doc. 2011–8091 Filed 4–4–11; 8:45 am] Memorandum’’), the Secretary has 11 17 CFR 200.30–3(a)(12). BILLING CODE 8025–01–P determined that Belarusneft has engaged

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in a sanctionable investment described —Belarusneft; comment. Please see the Privacy Act in section 5(a) of the ISA, as in effect on —Naftiran Intertrade Company (see heading below. the day before the date of enactment of Public Notice 7197, 75 Fed. Reg. 62916, Docket: For access to the docket to the Comprehensive Iran Sanctions, Oct. 13, 2010). read background documents or Accountability, and Divestment Act of Dated: March 29, 2011. comments, go to http:// 2010 (‘‘CISADA’’). Pursuant to section Jose Fernandez, www.regulations.gov at any time or 5(a) of the ISA and the Delegation Room W12–140 on the ground level of Assistant Secretary of State for Economic, Memorandum, and consistent with Energy and Business Affairs, Department of the West Building, 1200 New Jersey section 102(h)(2) of CISADA, the State. Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Secretary has determined to impose on [FR Doc. 2011–8096 Filed 4–4–11; 8:45 am] Belarusneft the following sanctions Friday, except Federal holidays. The BILLING CODE 4710–07–P described in section 6 of the ISA: FDMS is available 24 hours each day, 1. Export-Import Bank assistance for 365 days each year. If you want exports to sanctioned persons. The acknowledgment that we received your Export-Import Bank of the United States DEPARTMENT OF TRANSPORTATION comments, please include a self- shall not give approval to the issuance Federal Motor Carrier Safety addressed, stamped envelope or of any guarantee, insurance, extension Administration postcard or print the acknowledgement of credit, or participation in the page that appears after submitting extension of credit in connection with [Docket No. FMCSA–2011–0089] comments on-line. the export of any goods or services to Privacy Act: Anyone may search the Belarusneft. Qualification of Drivers; Exemption electronic form of all comments 2. Export sanction. The United States Applications; Epilepsy and Seizure received into any of our dockets by the Government shall not issue any specific Disorders name of the individual submitting the license and shall not grant any other AGENCY: Federal Motor Carrier Safety comment (or of the person signing the specific permission or authority to Administration (FMCSA), DOT. comment, if submitted on behalf of an export any goods or technology to association, business, labor union, etc.). ACTION: Notice of applications for Belarusneft under— exemption, request for comments. You may review the DOT’s complete a. The Export Administration Act of Privacy Act Statement in the Federal 1979 (50 U.S.C. Appx. §§ 2401 et seq.); SUMMARY: FMCSA announces receipt of Register published on April 11, 2000 b. The Arms Export Control Act (22 applications from 8 individuals for an (65 FR 19477–78; Apr. 11, 2000). This U.S.C. 2751 et seq.); exemption from the prohibition against information is also available at http:// c. The Atomic Energy Act of 1954 (42 persons with a clinical diagnosis of Docketinfo.dot.gov. U.S.C. 2011 et seq.); or epilepsy or any other condition which d. Any other statute that requires the FOR FURTHER INFORMATION CONTACT: Dr. is likely to cause a loss of consciousness prior review and approval of the United Mary D. Gunnels, Director, Medical or any loss of ability to operate a States Government as a condition for the Programs, (202) 366–4001, fmcsa commercial motor vehicle (CMV) from export or reexport of goods or services. [email protected], FMCSA, Room W64– 3. Loans from United States financial operating CMVs in interstate commerce. 224, Department of Transportation, 1200 institutions. United States financial If granted, the exemptions would enable New Jersey Avenue, SE., Washington, institutions shall be prohibited from these individuals with seizure disorders DC 20590–0001. Office hours are from making loans or providing credits to to operate CMVs in interstate commerce. 8:30 a.m. to 5 p.m., Monday through Belarusneft totaling more than DATES: Comments must be received on Friday, except Federal holidays. $10,000,000 in any 12-month period or before May 5, 2011. SUPPLEMENTARY INFORMATION: ADDRESSES: You may submit comments unless Belarusneft is engaged in Background activities to relieve human suffering and bearing the Federal Docket Management the loans or credits are provided for System (FDMS) Docket ID FMCSA– Under 49 U.S.C. 31315 and 31136(e), such activities. 2011–0089 using any of the following FMCSA may grant an exemption for a 2- 4. Procurement sanction. The United methods: year period if it finds ‘‘such exemption States Government shall not procure, or • Federal eRulemaking Portal: Go to would likely achieve a level of safety enter into any contract for the http://www.regulations.gov. Follow the that is equivalent to, or greater than, the procurement of, any goods or services on-line instructions for submitting level that would be achieved absent from Belarusneft. comments. such exemption.’’ The statutes also These sanctions shall remain in effect • Mail: Docket Management Facility; allow the Agency to renew exemptions until otherwise directed pursuant to the U.S. Department of Transportation, 1200 at the end of the 2-year period. The 8 provisions of the ISA or other applicable New Jersey Avenue, SE., West Building individuals listed in this notice have authority. Pursuant to the authority Ground Floor, Room W12–140, recently requested an exemption from delegated to the Secretary of State in the Washington, DC 20590–0001. the epilepsy prohibition in 49 CFR Delegation Memorandum, relevant • Hand Delivery: West Building 391.41(b)(8), which applies to drivers agencies and instrumentalities of the Ground Floor, Room W12–140, 1200 who operate CMVs as defined in 49 CFR United States Government are hereby New Jersey Avenue, SE., Washington, 390.5, in interstate commerce. Section directed to take all appropriate DC, between 9 a.m. and 5 p.m., Monday 391.41(b)(8) states that a person is measures within their authority to carry through Friday, except Federal holidays. physically qualified to drive a out the provisions of this notice. • Fax: 1–202–493–2251. commercial motor vehicle if that person The following constitutes a current, as Each submission must include the has no established medical history or of this date, list of persons on whom Agency name and the docket ID for this clinical diagnosis of epilepsy or any sanctions are imposed under the ISA. Notice. Note that DOT posts all other condition which is likely to cause The particular sanctions imposed on an comments received without change to the loss of consciousness or any loss of individual company are identified in http://www.regulations.gov, including ability to control a commercial motor the relevant Federal Register Notice. any personal information included in a vehicle.

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FMCSA provides medical advisory remained seizure-free for 22 years and and placed on the anti-seizure criteria for use by medical examiners in off anti-seizure medication for 4 years. medication Keppra at that time. His determining whether drivers with Donald Schutz treating physician states that he is certain medical conditions should be compliant with his medication regimen certified to operate commercial motor Mr. Schutz is a CMV driver in the and that his risk of a recurrent seizure vehicles in intrastate commerce. The state of Ohio. He states that he was is very low. The CMV that he operates advisory criteria indicates that if an diagnosed with a brain tumor in 2002 is a ‘‘bucket truck’’ for a power and light and that he suffered a seizure due to the individual has had a sudden episode of company and Mr. Cekovic states that the tumor in July of that year. He had brain a non-epileptic seizure or loss of maximum distance he drives between consciousness of unknown cause which surgery in November 2002 and the tumor was successfully removed. Mr. job sites is no more than 20 miles per did not require anti-seizure medication, day. the decision whether that person’s Schutz has been taking the anti-seizure condition is likely to cause the loss of medication Dilantin since that time and Paul G. Kane consciousness or loss of ability to has no further seizures. He has his control a commercial motor vehicle medication levels checked often by Mr. Kane is a CMV operator in the should be made on an individual basis blood tests and remains compliant with state of Massachusetts and he had a by the medical examiner in consultation his regimen. Mr. Schutz believes that he seizure in 2006. He had one other with the treating physician. Before would achieve a level of safety that is seizure in December 2009 and was certification is considered, it is equivalent to the level of safety obtained placed on Keppra by his treating suggested that a 6-month waiting period by complying with the regulation physician. Both seizures were listed as elapse from the time of the episode. because he has remained seizure-free for being from ‘‘unknown causes’’. His Following the waiting period, it is 9 years and has been on anti-seizure diagnosis is seizure disorder and he has suggested that the individual have a medication since 2002. done well on his medication with no complete neurological examination. If Robin L. Sherwood further seizures according to his treating the results of the examination are physician. Mr. Kane states that his Mr. Sherwood is a CMV driver in the negative and anti-seizure medication is maximum daily average CMV mileage state of Idaho. He states that he had a not required, then the driver may be would be between 5–20 miles per day. qualified. seizure caused by a brain tumor in 1997 In those individual cases where a and that the tumor was successfully Darren Keith driver had a seizure or an episode of removed during the same year. Mr. loss of consciousness that resulted from Sherwood has taken anti-seizure Mr. Keith is a CMV driver from a known medical condition (e.g., drug medication (Carbotrol) since 1997 with Missouri and suffered a seizure in reaction, high temperature, acute no further seizure activity. His doctor October 2009. He was placed on the infectious disease, dehydration, or acute supports Mr. Sherwood’s application for anti-seizure medication Dilantin at that metabolic disturbance), certification exemption because of his successful time. Mr. Keith also reported that he should be deferred until the driver has surgery and medication compliance. Mr. had two childhood episodes of febrile fully recovered from that condition, has Sherwood believes that he would seizures. Mr. Keith was able to no existing residual complications, and achieve a level of safety that is discontinue his medication with no ill is not taking anti-seizure medication. equivalent to the level of safety obtained effects in March 2010 and diagnostic Drivers with a history of epilepsy/ by complying with the regulation testing revealed that he does not exhibit seizures off anti-seizure medication and because he has remained seizure-free epilepsy symptoms. seizure-free for 10 years may be since 1997, has an excellent driving Richard Laqua qualified to operate a CMV in interstate record, and is compliant with his medication regimen for seizures. commerce. Interstate drivers with a Mr. Laqua is a CMV driver from history of a single unprovoked seizure Frank Eveland Minnesota and was diagnosed with a may be qualified to drive a CMV in Mr. Eveland is a CMV driver in the partial seizure in March 2009. He was interstate commerce if seizure-free and state of Wisconsin. He was diagnosed placed on the anti-seizure medication off anti-seizure medication for a 5-year with one unprovoked seizure in 2003 Trileptal at that time and has had no period or more. and placed on the anti-seizure further seizure episodes. Mr. Laqua Summary of Applications medication Keppra at that time. His operates a milk truck. physician states that Mr. Eveland has Brian Sessions had no further seizures and that his Request for Comments Mr. Sessions is a CMV driver in the medication level is checked regularly by In accordance with 49 U.S.C. 31315 state of Maine. He was diagnosed with blood tests. The doctor states that Mr. seizure disorder in 1985 and placed on and 31136(e), FMCSA requests public Eveland is safe to operate a motor comment from all interested persons on medication with good control until 1989 vehicle and that he is compliant with the exemption applications described in when his doctor recommended stopping his medication. Mr. Eveland believes this notice. We will consider all the medicine. Mr. Sessions suffered a that he would achieve a level of safety comments received before the close of relapse seizure due to improper that is equivalent to the level of safety withdrawal advice in 1989 and resumed obtained by complying with the business on the closing date indicated his medication. He was withdrawn regulation because he has maintained earlier in the notice. successfully from his anti-seizure good medication control and has Issued on: March 29, 2011. medication in 2007 and has remained remained seizure-free for 8 years. Larry W. Minor, medication free since that time. Mr. Sessions believes that he would achieve Frank Cekovic Associate Administrator for Policy. a level of safety that is equivalent to the Mr. Cekovic is a CMV driver in the [FR Doc. 2011–7955 Filed 4–4–11; 8:45 am] level of safety obtained by complying state of Pennsylvania. He was diagnosed BILLING CODE P with the regulation because he has with a seizure disorder in January 2009

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DEPARTMENT OF TRANSPORTATION comments, please include a self- accumulating 1.1 million miles. He addressed, stamped envelope or holds a Class A CDL from Kentucky. His Federal Motor Carrier Safety postcard or print the acknowledgement driving record for the last 3 years shows Administration page that appears after submitting no crashes and no convictions for [Docket No. FMCSA–2011–0057] comments on-line. moving violations in a CMV. Privacy Act: Anyone may search the Luis A. Bejarono Qualification of Drivers; Exemption electronic form of all comments Applications; Vision received into any of our dockets by the Mr. Bejarono, 41, has a large corneal name of the individual submitting the scar and retinal detachment in his left AGENCY: Federal Motor Carrier Safety comment (or of the person signing the eye due to an accident that occurred 5 Administration (FMCSA), DOT. comment, if submitted on behalf of an years ago. The visual acuity in his right ACTION: Notice of applications for association, business, labor union, etc.). eye is 20/20 and in his left eye, light exemptions; request for comments. You may review DOT’s Privacy Act perception. Following an examination Statement for the FDMS published in in 2010, his ophthalmologist noted, ‘‘In SUMMARY: FMCSA announces receipt of the Federal Register on January 17, my medical opinion, Mr. Bejarono has applications from 16 individuals for 2008 (73 FR 3316), or you may visit sufficient vision to perform driving exemption from the vision requirement http://edocket.access.gpo.gov/2008/pdf/ tasks required to operate a commercial in the Federal Motor Carrier Safety E8–785.pdf. vehicle.’’ Mr. Bejarono reported that he Regulations. If granted, the exemptions FOR FURTHER INFORMATION CONTACT: Dr. has driven tractor-trailer combinations would enable these individuals to Mary D. Gunnels, Director, Medical for 8 years, accumulating 400,000 miles. qualify as drivers of commercial motor Programs, (202) 366–4001, He holds a Class A CDL from Arizona. vehicles (CMVs) in interstate commerce [email protected], FMCSA, His driving record for the last 3 years without meeting the Federal vision Department of Transportation, 1200 shows no crashes and no convictions for standard. New Jersey Avenue, SE., Room W64– moving violations in a CMV. DATES: Comments must be received on 224, Washington, DC 20590–0001. Richard T. Berendt or before May 5, 2011. Office hours are from 8:30 a.m. to 5 Mr. Berendt, 60, has had a macular ADDRESSES: You may submit comments p.m., Monday through Friday, except hole in his left eye since 1997. The best bearing the Federal Docket Management Federal holidays. corrected visual acuity in his right eye System (FDMS) Docket No. FMCSA– SUPPLEMENTARY INFORMATION: is 20/20 and in his left eye, 2011–0057 using any of the following Background 20/70. Following an examination in methods: 2010, his optometrist noted, ‘‘It is my Under 49 U.S.C. 31136(e) and 31315, • Federal eRulemaking Portal: Go to medical opinion that Mr. Berendt has FMCSA may grant an exemption from http://www.regulations.gov. Follow the sufficient vision to perform the driving the Federal Motor Carrier Safety on-line instructions for submitting tasks required to operate a commercial Regulations for a 2-year period if it finds comments. vehicle.’’ Mr. Berendt reported that he ‘‘such exemption would likely achieve a • Mail: Docket Management Facility; has driven straight trucks for 20 years, level of safety that is equivalent to, or U.S. Department of Transportation, 1200 accumulating 312,000 miles and tractor- greater than, the level that would be New Jersey Avenue, SE., West Building trailer combinations for 14 years achieved absent such exemption.’’ Ground Floor, Room W12–140, accumulating 2 million miles. He holds FMCSA can renew exemptions at the Washington, DC 20590–0001. a Class A CDL from Ohio. His driving end of each 2-year period. The 16 • Hand Delivery: West Building record for the last 3 years shows one individuals listed in this notice have Ground Floor, Room W12–140, 1200 crash for which he was not cited and each requested such an exemption from New Jersey Avenue, SE., Washington, two convictions for speeding in a CMV. the vision requirement in 49 CFR DC, between 9 a.m. and 5 p.m., Monday In the first incident, he exceeded the 391.41(b)(10), which applies to drivers through Friday, except Federal speed limit by 4 miles per hour (MPH), of CMVs in interstate commerce. Holidays. in the second incident, he exceeded the Accordingly, the Agency will evaluate • Fax: 1–202–493–2251. speed limit by 10 mph. Instructions: Each submission must the qualifications of each applicant to include the Agency name and the determine whether granting an James O. Cook docket numbers for this notice. Note exemption will achieve the required Mr. Cook, 62, has a central scar in his that all comments received will be level of safety mandated by statute. left eye due to a traumatic injury that posted without change to http:// Qualifications of Applicants occurred in 1967. The visual acuity in www.regulations.gov, including any his right eye is 20/20 and in his left eye personal information provided. Please Melvin T. Ayer 20/400. Following an examination in see the Privacy Act heading below for Mr. Ayer, age 57, has had an inferior 2010, his ophthalmologist noted, ‘‘In my further information. temporal visual field defect in his left opinion, Mr. Cook meets all applicable Docket: For access to the docket to eye since 2007. The best corrected requirements to drive a commercial read background documents or visual acuity in his right eye is 20/20 vehicle. Therefore there should be no comments, go to http:// and in his left eye, 20/20. Following an issue in Mr. Cook retaining commercial www.regulations.gov at any time or examination in 2010, his optometrist driving privileges.’’ Mr. Cook reported Room W12–140 on the ground level of noted, ‘‘Based on Mr. Ayer’s report of no that he has driven straight trucks for 5 the West Building, 1200 New Jersey history of problems with his commercial years, accumulating 350,000 miles and Avenue, SE., Washington, DC, between driving and his stable ocular findings, tractor-trailer combinations for 28 years 9 a.m. and 5 p.m., Monday through he appears to have sufficient vision to accumulating 3.4 million miles. He Friday, except Federal holidays. The perform driving tasks required to holds a Class A CDL from Georgia. His FDMS is available 24 hours each day, operate a commercial vehicle.’’ Mr. Ayer driving record for the last 3 years shows 365 days each year. If you want reported that he has driven tractor- no crashes and no convictions for acknowledgment that we received your trailer combinations for 16 years, moving violations in a CMV.

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Timothy J. Curran Class C operator’s license from convictions for moving violations in a Mr. Curran, 42, has refractive Washington. His driving record for the CMV. last 3 years shows no crashes and no Amblyopia in his right eye since birth. Scott W. Schilling The best corrected visual acuity in his convictions for moving violations in a Mr. Schilling, 38, has had a prosthetic right eye is 20/60 and in his left eye, CMV. left eye due to a traumatic incident that 20/20. Following an examination in Kevin R. Lambert occurred in 1983. The visual acuity in 2010, his ophthalmologist noted, ‘‘In my his right eye is 20/20. Following an opinion, Mr. Curran has adequate visual Mr. Lambert, 47, has had complete examination in 2011, his optometrist function to operate a commercial loss of vision in his right eye due to a ‘‘ vehicle.’’ Mr. Curran reported that he traumatic injury that occurred in 1999. noted, I certify in my medical opinion has driven straight trucks for 8 years, The best corrected visual acuity in his that Scott has sufficient vision to accumulating 83,200 miles and tractor- left eye is 20/25. Following an perform driving tasks required to ’’ trailer combinations for 10 years examination in 2010, his operate a commercial vehicle. Mr. accumulating 156,000 miles. He holds a ophthalmologist noted, ‘‘In my Schilling reported that he has driven Class A CDL from California. His professional opinion, with the aid of the tractor-trailer combinations for 3 years, driving record for the last 3 years shows correction lenses that are prescribed, accumulating 195,000 miles. He holds a no crashes and no convictions for Mr. Lambert will have sufficient vision Class A CDL from North Dakota. His moving violations in a CMV. to perform driving tasks required to driving record for the last 3 years shows operate a commercial vehicle.’’ Mr. no crashes and no convictions for Alfred D. Hewitt Lambert reported that he has driven moving violations in a CMV. Mr. Hewitt, 57, has had a prosthetic tractor-trailer combinations for 18 years, Randy E. Sims right eye since 2004. The best corrected accumulating 2.5 million miles. He Mr. Sims, 58, has a choroidal rupture visual acuity in his left eye is 20/15. holds a Class A CDL from North in his left eye due to a retinal injury Following an examination in 2010, his Carolina. His driving record for the last sustained in 1962. The best corrected ophthalmologist noted, ‘‘In my medical 3 years shows no crashes and no visual acuity in his right eye is 20/20 opinion he has sufficient vision to convictions for moving violations in a and in his left eye, 20/70. Following an operate a commercial vehicle.’’ Mr. CMV. Hewitt reported that he has driven examination in 2011, his tractor-trailer combinations for 38 years, James P. Lanigan ophthalmologist noted, ‘‘I believe his vision is sufficient to operate a accumulating 1.9 million miles. He Mr. Lanigan, 56, has had commercial vehicle.’’ Mr. Sims reported holds a Class A CDL from Illinois. His histoplasmosis in his left eye since 6 that he has driven straight trucks for 5 driving record for the last 3 years shows years ago. The best corrected visual years, accumulating 260,000 miles and no crashes and no convictions for acuity in his right eye is 20/20 and in tractor-trailer combinations for 26 years moving violations in a CMV. his left eye, 20/200. Following an accumulating 2 million miles. He holds examination in 2011, his optometrist Mark A. Kleinow a Class A CDL from Washington. His noted, ‘‘He has a successful 20-year Mr. Kleinow, 54, has central scarring driving record for the last 3 years shows history of commercial driving and his due to central serious retinopathy. The no crashes and no convictions for visual status has not affected his ability best corrected visual acuity in his right moving violations in a CMV. to perform his job.’’ Mr. Lanigan eye is 20/20 and in his left eye, 20/50. reported that he has driven straight Halman Smith Following an examination in 2010, his optometrist noted, ‘‘Patient/applicant trucks for 17 years, accumulating Mr. Smith, 53, has complete loss of has sufficient vision to perform the 544,000 miles and tractor-trailer vision in his left eye due to traumatic driving task required to operate a combinations for 1 year accumulating optic neuropathy since age 27. The commercial vehicle.’’ Mr. Kleinow 5,000 miles. He holds a Class A CDL visual acuity in his right eye is 20/20. reported that he has driven straight from Ohio. His driving record for the Following an examination in 2010, his trucks for 30 years, accumulating 5.6 last 3 years shows no crashes and no optometrist noted, ‘‘Based on my exam million miles. He holds a Class B CDL convictions for moving violations in a findings and current laws regulating from Iowa. His driving record for the CMV. driver’s licensure, Mr. Smith has last 3 years shows no crashes and no Nusret Odzakovic sufficient vision to perform the driving convictions for moving violations in a tasks needed to operate a commercial CMV. Mr. Odzakovic, 37, has had vehicle.’’ Mr. Smith reported that he has concussive optic nerve atrophy in his driven straight trucks for 14 years, Luke R. Lafley right eye since 1994. The best corrected 700,000 miles. He holds a Class B CDL Mr. Lafley, 42, has complete loss of visual acuity in his right eye is 20/200 from Delaware. His driving record for vision in his left eye due to a traumatic and in his left eye, 20/20. Following an the last 3 years shows no crashes but injury that occurred in 1978. The visual examination in 2010, his optometrist three convictions for moving violations acuity in his right eye is 20/15. noted, ‘‘It is our medical opinion that in a CMV; one conviction was for an Following an examination in 2010, his Mr. Odzakovic continues to have improper lane change and the other two optometrist noted, ‘‘I feel the vision sufficient visual capabilities to perform convictions were for speeding in a CMV, deficiency of having one eye does not the driving tasks associated with in both speeding incidents, he exceeded prohibit operation of a motor vehicle operating a commercial vehicle.’’ Mr. the speed limit by 5 mph. and Mr. Lafley’s vision is adequate to Odzakovic reported that he has driven drive commercial motor vehicles.’’ Mr. straight trucks for 3 years, accumulating Robert D. Smith Lafley reported that he has driven 180,000 miles and tractor-trailer Mr. Smith, 52, has had amblyopia in straight trucks for 26 years, combinations for 8 years accumulating his right eye since childhood. The best accumulating 780,000 miles and tractor- 120,000 miles. He holds a Class A CDL corrected visual acuity in his right eye trailer combinations for 8 years from Florida. His driving record for the is 20/200 and in his left eye, 20/20. accumulating 560,000 miles. He holds a last 3 years shows no crashes and no Following an examination in 2010, his

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optometrist noted, ‘‘Robert has been DEPARTMENT OF TRANSPORTATION DC 20590. Office hours are between 9 driving commercially for a number of a.m. and 5 p.m., ET, Monday through years, has been a patient here for over Federal Motor Carrier Safety Friday, except Federal holidays. a decade, and I see no reason why he Administration Docket: Comments and material should not be able to continue to drive.’’ received from the public, as well as [Docket No. FMCSA–2011–0091] Mr. Smith reported that he has driven background information and documents straight trucks for 17 years, Unified Carrier Registration Plan Board mentioned in this preamble, are part of accumulating 1.3 million miles and of Directors; Request for Nominations docket FMCSA—2011–0091, and are tractor-trailer combinations for 17 years available for inspection and copying on accumulating 10,200 miles. He holds a AGENCY: Federal Motor Carrier Safety the Internet at http:// Class A CDL from Ohio. His driving Administration (FMCSA), DOT. www.regulations.gov. You may also record for the last 3 years shows no ACTION: Notice Requesting Nominations view and copy documents at the U.S. crashes and no convictions for moving from among Chief Administrative Department of Transportation’s Docket violations in a CMV. Officers of State Agencies to the Board Operations Unit, West Building Ground of Directors. Floor, Room W12–140, 1200 New Jersey Richard D. Williams Avenue, SE., Washington, DC. SUMMARY: Privacy Act: All comments will be Mr. Williams, 55, has had loss of The FMCSA solicits posted without change including any vision in his right eye since 2006. The nominations and applications for appointment to the Board of Directors of personal information provided to the best corrected visual acuity in his right FDMS at http://www.regulations.gov. eye is 20/60 and in his left eye, 20/20. the Unified Carrier Registration Plan (UCR Plan) of interested persons to Anyone can search the electronic form Following an examination in 2011, his of all our dockets in FDMS, by the name ‘‘ serve as representatives of chief optometrist noted, In light of the fact of the individual submitting the that his left eye has perfect 20/20 vision administrative officers of State agencies responsible for overseeing the Unified comment (or signing the comment, if and that he does have a history of submitted on behalf of an association, decreased vision in the right eye for the Carrier Registration Agreement (UCR Agreement). The Agency will appoint business, labor union, etc.). The past several years, I do feel that he has Department of Transportation’s (DOT) adapted well to the situation and I have four members from such State agencies, one from each of FMCSA’s four service complete Privacy Act Systems of no concerns in his ability to drive a Records notice was published in the commercial vehicle.’’ Mr. Williams areas. As authorized by 49 U.S.C. 14504a, the UCR Plan is responsible for Federal Register on April 11, 2000 (65 reported that he has driven straight FR 19476), and can be viewed at http: trucks for 35 years, accumulating 2.6 the administration of the UCR Agreement. The UCR Agreement //docketsinfo.dot.gov. Comments million miles, tractor-trailer received after the comment closing date combinations for 20 years accumulating governs the registration and the collection and distribution of fees paid will be included in the docket, and we 1.5 million miles and buses for 5 years, will consider late comments to the accumulating 62,500 miles. He holds a by for-hire and private motor carriers, brokers, freight forwarders, and leasing extent practicable. Class D operator’s license from FOR FURTHER INFORMATION CONTACT: Mr. Oklahoma. His driving record for the companies. The UCR Plan and Agreement replaced the Single State Jose M. Rodriguez, Office of Research last 3 years shows no crashes and no and Information Technology, (202) 366– convictions for moving violations in a Registration System (SSRS), which was repealed as of January 1, 2008. 3517, FMCSA, Department of CMV. Transportation, 1200 New Jersey Ave., DATES: Nominations or expressions of Request for Comments interest for appointment to the Board of SE., Washington, DC 20590 or by e-mail Directors must be received on or before at: [email protected]@dot.gov. In accordance with 49 U.S.C. 31136(e) April 20, 2011. and 31315, FMCSA requests public Background comment from all interested persons on ADDRESSES: You may submit comments Section 4305(b) of the Safe, the exemption petitions described in to this notice, identified by docket Accountable, Flexible, Efficient this notice. The Agency will consider all number FMCSA–2011–0091, by any of Transportation Equity Act: A Legacy for comments received before the close of the following methods—Internet, Users (SAFETEA–LU) [Pub. L. 109–59, business May 5, 2011. Comments will facsimile, regular mail, or hand- 119 Stat. 1144, August 10, 2005] enacted be available for examination in the delivery. 49 U.S.C. 14504a entitled ‘‘Unified docket at the location listed under the Federal eRulemaking Portal: Federal carrier registration system plan and ADDRESSES section of this notice. The Docket Management System (FDMS) agreement.’’ Under the UCR Agreement, Agency will file comments received Web site at http://www.regulations.gov. motor carriers, motor private carriers, after the comment closing date in the The FDMS is the preferred method for brokers, freight forwarders, and leasing public docket, and will consider them to submitting comments, and we urge you companies that are involved in the extent practicable. In addition to late to use it. In the ‘‘Comment’’ or interstate transportation register and pay comments, FMCSA will also continue to ‘‘Submission’’ section, type Docket ID certain fees. The UCR Plan’s Board of file, in the public docket, relevant Number ‘‘FMCSA—2011–0091’’, select Directors must issue rules and information that becomes available after ‘‘Go’’, and then click on ‘‘Send a regulations to govern the UCR the comment closing date. Interested Comment or Submission.’’ You will Agreement. Section 14504a(a)(9) defines persons should monitor the public receive a tracking number when you the Unified Carrier Registration Plan as docket for new material. submit a comment. the organization of State, Federal, and Fax: 1–202–493–2251. industry representatives responsible for Issued on: March 29, 2011. Mail, Courier, or Hand-Deliver: U.S. developing, implementing, and Larry W. Minor, Department of Transportation, Docket administering the UCRA. Section Associate Administrator for Policy. Operations (M–30), West Building 14504a(d)(1)(B) directed the Secretary to [FR Doc. 2011–7959 Filed 4–4–11; 8:45 am] Ground Floor, Room W12–140, 1200 establish a Unified Carrier Registration BILLING CODE 4910–EX–P New Jersey Avenue, SE., Washington, Plan Board of Directors made up of 15

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members from FMCSA, State UCR Agreement are serving terms that trackage rights to expire at midnight on governments, and the motor carrier expire on May 31, 2011. These directors December 10, 2011, in accordance with industry. The Board also must may continue to serve until their the agreement of the parties, subject to recommend initial annual fees to be replacements are appointed; each of the employee protective conditions set assessed against carriers, leasing them may be reappointed (49 U.S.C. forth in Oregon Short Line Railroad— companies, brokers, and freight 14504a(d)(1)(D)(iii) and (iv)). Today’s Abandonment Portion Goshen Branch forwarders under the UCRA, as well as publication serves as a notice requesting Between Firth & Ammon, in Bingham & any annual adjustments to those fees. nominations for and public comment on Bonneville Counties, Idaho, 360 I.C.C. Section 14504a(d)(1)(B) provides that possible appointment of the four 91 (1979). the UCR Plan’s Board of Directors must members of the UCR Plan’s Board of DATES: This exemption will be effective consist of directors from the following Directors to be appointed from the chief on May 5, 2011. Petitions to stay must groups: administrative officers of the be filed by April 15, 2011. Petitions for Federal Motor Carrier Safety responsible State agencies in accordance reconsideration must be filed by April Administration: One director must be with 49 U.S.C. 14504a(d). 25, 2011. selected from each of the FMCSA ADDRESSES: service areas (as defined by FMCSA on Board Member Nominations An original and 10 copies of all pleadings, referring to Docket No. FD January 1, 2005) from among the chief FMCSA seeks either nominations of, 35466 (Sub-No. 1), must be filed with administrative officers of the State or expressions of interest from, the Surface Transportation Board, 395 E agencies responsible for administering individuals to serve as members of the Street, SW., Washington, DC 20423– the UCRA. board of directors for the UCR Plan from 0001. In addition, a copy of each State Agencies: The five directors the responsible State agencies. pleading must be served on BNSF’s selected to represent State agencies Nominations or expressions of interest representative: Karl Morell, Of Counsel, must be from among the professional should indicate that the person Ball Janik LLP, Suite 225, 1455 F Street, staffs of State agencies responsible for nominated or recommended meets the NW., Washington, DC 20005. overseeing the administration of the statutory requirements specified in 49 UCR Agreement. U.S.C. 14504a(d)(1)(B)(i). Nominations FOR FURTHER INFORMATION CONTACT: Motor Carrier Industry: Five directors or expressions of interest must be Joseph H. Dettmar, (202) 245–0395. must be from the motor carrier industry. transmitted by means of the procedures [Assistance for the hearing impaired is At least one of the five motor carrier for comments specified earlier in this available through the Federal industry directors must be from ‘‘a notice. FMCSA and the Department will Information Relay Service (FIRS) at 1– national trade association representing make the appointments for the four 800–877–8339.] the general motor carrier of property members from the responsible State SUPPLEMENTARY INFORMATION: industry’’ and one of them must be from agencies for three-year terms, expiring Additional information is contained in ‘‘a motor carrier that falls within the on May 31, 2014. the Board’s decision. Board decisions smallest fleet fee bracket.’’ Issued on: March 25, 2011. and notices are available on our Web U.S. Department of Transportation site at http://www.stb.dot.gov. (the Department): One individual, either Kelly Leone, the FMCSA Deputy Administrator or Associate Administrator, Research and Decided: March 30, 2011. such other Presidential appointee from Information Technology. By the Board, Chairman Elliott and the Department appointed by the [FR Doc. 2011–7957 Filed 4–4–11; 8:45 am] Commissioner Mulvey. Secretary, represents the Department. BILLING CODE 4910–EX–P Jeffrey Herzig, The establishment of the Board was Clearance Clerk. announced in the Federal Register on [FR Doc. 2011–7998 Filed 4–4–11; 8:45 am] May 12, 2006 (71 FR 27777). In that DEPARTMENT OF TRANSPORTATION BILLING CODE 4915–01–P notice, the Agency recognized the American Trucking Associations, Inc. Surface Transportation Board (ATA) as the national trade association [Docket No. FD 35466 (Sub-No. 1)] DEPARTMENT OF THE TREASURY representing the general motor carrier of property industry. ATA is a national BNSF Railway Company—Temporary Submission for OMB Review; affiliation of State trucking Trackage Rights Exemption—Union Comment Request organizations representing the national, Pacific Railroad Company State and local interests of the 50 The Department of Treasury, on AGENCY: Surface Transportation Board. affiliated State trucking associations; behalf of itself and the Consumer ACTION: and the interests of specialized areas of Partial revocation of exemption. Financial Protection Bureau (CFPB), the trucking industry through will submit the following public SUMMARY: Under 49 U.S.C. 10502, the information collection requirement to conferences and councils. The Agency Board revokes the class exemption as it selected the Owner-Operator OMB for review and clearance under the pertains to the trackage rights described Paperwork Reduction Act of 1995, Independent Drivers Association in Docket No. FD 35466 1 to permit the (OOIDA) as the organization from which Public Law 104–13 on or after the date of publication of this notice. A copy of to appoint an individual to represent 1 On February 8, 2011, the BNSF Railway the submission may be obtained by motor carriers comprising the smallest Company (BNSF) filed a verified notice of fleet fee bracket. OOIDA is a national exemption under the Board’s class exemption procedures at 49 CFR 1180.2(d)(7). The notice Keddie, Cal., on UP’s Canyon Subdivision, a trade association representing the covered the agreement by Union Pacific Railroad distance of 61.3 miles. BNSF states that the trackage interests of small trucking companies Company (UP) to grant local trackage rights to rights are only temporary rights, but, because they and drivers. BNSF over UP’s lines extending between: (1) UP are ‘‘local’’ rather than ‘‘overhead’’ rights, they do not Each of the four current directors from milepost 93.2 at Stockton, Cal., on UP’s Oakland qualify for the Board’s class exemption for Subdivision, and UP milepost 219.4 at Elsey, Cal., temporary trackage rights at 49 CFR 1180.2(d)(8). the chief administrative officers of the on UP’s Canyon Subdivision, a distance of See BNSF Ry.—Temporary Trackage Rights State agencies responsible for approximately 126.2 miles; and (2) UP milepost Exemption—Union Pac. R.R., FD 35466 (STB served overseeing the administration of the 219.4 at Elsey, Cal., and UP milepost 280.7 at Feb. 24, 2011).

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calling the agency contact listed below. The qualitative testing is focused on Estimated floater burden: 35 hours (10 Comments regarding this information the purposes of the integrated disclosure × 210/60). collection should be addressed to the to: Total estimated participation burden: OMB reviewer listed and to the • Improve consumer understanding 85 hours. Treasury Department Clearance Officer, by better disclosing risks and costs so Total Burden Spanish interviews Department of the Treasury, 1750 consumers can choose the home loans (screening and study participation) = 97 Pennsylvania Avenue, NW., Suite that best meet their needs; hours (12 + 85) • Enable ‘‘shopping’’ in terms of 11010, Washington, DC 20220. Social Media Outreach Dates: Written comments should be comparing loan products and loan received on or before May 5, 2011 to be offers; and Estimated number of participants at assured of consideration. • Facilitate compliance and ease each opportunity to provide input = OMB Number: 1505–XXXX. implementation for industry. 5000. Type of Review: Emergency Clearance The CFPB implementation team plans Time to provide input = 5 minutes. Request. to test at six sites in five rounds to allow Estimated participation burden: 417 Title: Qualitative Testing of Integrated for changes to the disclosure between hours (5 × 5,000/60). Mortgage Loan Disclosure Forms. rounds. Because consumers are not the Opportunities for structured input = Description: The Dodd-Frank Wall only ones who will interact with the 3. Street Reform and Consumer Protection Total estimated participation burden loan disclosure, the testing plan × Act, Public Law 111–203, Title X, includes one-on-one cognitive testing = 1,251 hours (417 3). requires CFPB to develop model forms with brokers and lenders to evaluate the Estimated Maximum Burden: 1,566 that will integrate separate disclosures usefulness of the form, any potential hours (218 + 97 + 1,251) Comments are invited on: (a) Whether concerning residential mortgage loans areas of confusion, and potential the collection of information shall have that are required under the Truth in implementation and usability practical utility; (b) the accuracy of the Lending Act and Real Estate Settlement challenges. Procedures Act. The CFPB Respondents: Individuals, businesses agency’s estimate of the burden of the implementation team will collect data, or other for-profit institutions. collection of information; (c) ways to including through interviews and the Estimated Total Reporting Burden: enhance the quality, utility, and clarity internet, to inform its design and Screening Process: of the information to be collected; (d) development of the mandated integrated Total number of potential participants ways to minimize the burden of the disclosure and its implementation. The to be screened: 156 individuals. collection of information on information collected through the one- Estimated time to complete screening: respondents, including through the use on-one cognitive interviews and the 10 minutes. of automated collection techniques on internet will inform the disclosure Estimated participant screening other forms of information technology; × form’s design and content, using an burden: 26 hours (156 10/60). and (e) estimates of capital or start-up iterative process to improve the draft Estimated number of participants: 54 costs and cost of operation, form to make it easier for consumers to individuals. maintenance, and purchase of services use the document to identify the terms Time to conduct study: 90 minutes. to provide information. All comments Estimated travel time to and from site: of the loan being offered to them and will be a matter of public record. 30 minutes. Agency Contact: Pamela Blumenthal, use that information to compare among Estimated participant burden: 108 CFPB implementation team, 1801 L different loan products. hours (54 × 120/60). The data collection will include: Street, NW., Washington, DC 20036; Estimated number of floaters: 24. • Consent forms that will be used to (202) 435–7167. Time to conduct study: 180 minutes. obtain the consent of participants in the OMB Reviewer: Shagufta Ahmed, Estimated travel time to and from site: Office of Management and Budget, New cognitive interviewing; 30 minutes. • Participant Questionnaires to obtain Executive Office Building, Room 10235, Estimated floater burden: 84 hours (24 Washington, DC 20503; (202) 395–7873. demographic information about the × 210/60). participants; Dawn D. Wolfgang, • Total estimated participation burden: Interview protocols for both 192 hours. Treasury PRA Clearance Officer. consumers and lenders/brokers; and Total Burden English interviews [FR Doc. 2011–8057 Filed 4–4–11; 8:45 am] • Tools that seek input from a larger (screening and study participation) = BILLING CODE 4810–25–P community through the internet. 218 hours (26 + 192) The core objective of the data Spanish cognitive interviews: collection is to help refine specific Total number of potential participants DEPARTMENT OF THE TREASURY features of the content or design of the screened: 74 individuals. form to maximize communication Estimated time to complete screening: Submission for OMB Review; effectiveness while minimizing 10 minutes. Comment Request compliance burden, specifically by: Estimated participant screening • Evaluating one or more draft burden: 12 hours (74 × 10/60). March 31, 2011. disclosure forms through iterative Estimated number of participants: 25 The Department of the Treasury will qualitative testing with consumers and individuals. submit the following public information lenders/brokers, including observation Time to conduct study: 90 minutes. collection requirement to OMB for of consumers’ usage of the disclosure, Estimated travel time to and from site: review and clearance under the their understanding of the contents, and 30 minutes. Paperwork Reduction Act of 1995, the choices they make. Estimated participant burden: 50 Public Law 104–13 on or after the date • Collecting supplementary feedback hours (25 × 120/60). of publication of this notice. A copy of through the internet from consumers, Estimated number of floaters: 10. the submission may be obtained by industry, housing counselors, and other Time to conduct study: 180 minutes. contacting the Treasury Departmental interested parties regarding the draft Estimated travel time to and from site: Office Clearance Officer listed. disclosure(s). 30 minutes. Comments regarding these information

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collections should be addressed to the DEPARTMENT OF THE TREASURY SUPPLEMENTARY INFORMATION: On OMB reviewer listed and to the January 29, 2010, the President signed Treasury PRA Clearance Officer, Open Meeting of the President’s Executive Order 13530, creating the Department of the Treasury, 1750 Advisory Council on Financial Council to assist the American people in Pennsylvania Avenue, NW., Suite Capability understanding financial matters and making informed financial decisions, 11010, Washington, DC 20220. AGENCY: Department of the Treasury. thereby contributing to financial Dates: Written comments should be ACTION: Notice of meeting. stability. The Council is composed of received on or before May 5, 2011 to be two ex officio Federal officials and 12 assured of consideration. SUMMARY: The President’s Advisory Council on Financial Capability non-governmental members appointed Departmental Offices, International (‘‘Council’’) will convene its second by the President with relevant Affairs meeting on April 21, 2011 at the backgrounds, such as financial services, Department of Education, 400 Maryland consumer protection, financial access, OMB Number: 1505–NEW. Avenue, SW., Washington, DC, and education. The role of the Council Type of Review: New collection. beginning at 11:00 a.m. Eastern Time. is to advise the President and the The meeting will be open to the public. Secretary of the Treasury on means to Title: Treasury International Capital promote and enhance individuals’ and Form SLT, ‘‘Aggregate Holdings of Long- The Council will: (1) Receive a report from the Council’s subcommittees families’ financial capability. The Term Securities by U.S. and Foreign Council held its first meeting on Residents’’. (National Strategy, Financial Access, Research and Evaluation, Partnerships, November 30, 2010. At that meeting, the Form: SLT. and Youth) on their progress; and (2) Chair recommended the establishment Abstract: Form SLT will be part of the review the composition and focus of the of five subcommittees to focus on the Treasury International Capital (TIC) subcommittees. following strategic areas: National Strategy, Financial Access, Research reporting system, which is required by DATES: The meeting will be held on and Evaluation, Partnerships, and law (22 U.S.C. 286f; 22 U.S.C. 3103; E.O. April 21, 2011, at 11 a.m. Eastern Time. Youth. 10033; 31 CFR part 128), for the purpose Submission of Written Statements: of providing timely information on The public is invited to submit written In accordance with section 10(a) of international capital movements. Form statements to the Council. Written the Federal Advisory Committee Act, 5 SLT will be used to collect monthly data statements should be sent by any one of U.S.C. App. 2 and the regulations on cross-border ownership by U.S. and the following methods: thereunder, Dubis Correal, Designated Federal Officer of the Council, has foreign residents of long-term securities Electronic Statements for portfolio investment purposes. These ordered publication of this notice that E-mail [email protected]; or the Council will convene its second data will be used by the U.S. meeting on April 21, 2011, at the Government in the formulation of Paper Statements Department of Education, 400 Maryland international and financial policies and Send paper statements to the Avenue, SW., Washington, DC, for the preparation of the U.S. balance Department of the Treasury, Office of beginning at 11 a.m. Eastern Time. The of payments accounts and the U.S. Financial Education and Financial meeting will be open to the public. international investment position. Form Access, Main Treasury Building, 1500 Members of the public who plan to SLT is filed by U.S.-resident custodians, Pennsylvania Avenue, NW., attend the meeting must RSVP with U.S.-resident issuers of long-term Washington, DC 20220. their name, organization represented (if securities, and U.S.-resident end- In general, the Department will make any), phone number, and e-mail investors (including endowments, all statements available in their original address. To register, please go to foundations, pension funds, mutual format, including any business or http://www.treasury.gov, click on funds, and other investment managers/ personal information provided such as Resource Center, then Office of advisors/sponsors) in long-term foreign names, addresses, e-mail addresses, or Financial Education and Financial securities. telephone numbers, for public Access, and then on the President’s inspection and photocopying in the Respondents: Private Sector: Advisory Council on Financial Department’s library, Room 1428, Main Capability or call (202) 622–5770 by 5 Businesses or other for-profits; Not-for- Department Building, 1500 profit institutions. p.m. Eastern Time on April 14, 2011. Pennsylvania Avenue, NW., For entry into the building on the date Estimated Total Reporting Burden: Washington, DC 20220, on official of the meeting, attendees must present 20,520 hours. business days between the hours of 10 a government-issued ID, such as a Departmental Office Clearance a.m. and 5 p.m. You can make an driver’s license or passport, which Officer: Dwight Wolkow, DO/ appointment to inspect statements by includes a photo. The purpose of the International Affairs, 1500 Pennsylvania calling (202) 622–0990. All statements meeting is to receive an update from the received, including attachments and Ave., NW., Rm. 5205, Washington, DC Council’s subcommittees on their ideas, other supporting materials, are part of 20220; (202) 622–1276. progress, and direction regarding the public record and subject to public potential recommendations. The OMB Reviewer: Shagufta Ahmed, disclosure. You should only submit Council will review the number, focus, Office of Management and Budget, New information that you wish to make and composition of the subcommittees. Executive Office Building, Room 10235, publicly available. Dated: March 29, 2011. Washington, DC 20503; (202) 395–7873. FOR FURTHER INFORMATION CONTACT: Alastair Fitzpayne, Dawn D. Wolfgang, Dubis Correal, Director, Office of Financial Education, Department of the Executive Secretary, U.S. Department of the Treasury PRA Clearance Officer. Treasury, 1500 Pennsylvania Avenue, Treasury. [FR Doc. 2011–8008 Filed 4–4–11; 8:45 am] NW., Washington, DC 20220, at (202) [FR Doc. 2011–8039 Filed 4–4–11; 8:45 am] BILLING CODE 4810–25–P 622–5770 or [email protected]. BILLING CODE 4810–25–P

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Part II

Department of Labor

Office of the Secretary Wage and Hour Division

29 CFR Part 4, 516, 531, et al. Updating Regulations Issued Under the Fair Labor Standards Act; Final Rule

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DEPARTMENT OF LABOR Standards Administration, which no July 24, 2007; to $6.55 per hour effective longer exists. A new RIN has been July 24, 2008; and to $7.25 per hour Office of the Secretary assigned to the WHD. effective July 24, 2009. Additionally, a number of courts have 29 CFR Part 4 I. Overview of Changes examined the interpretation of the The FLSA requires covered employers FLSA’s compensatory time provisions Wage and Hour Division to pay their nonexempt employees a in section 7(o)(5) concerning public Federal minimum wage and overtime agency employers’ obligation to grant 29 CFR Parts 516, 531, 553, 778, 779, premium pay of time and one-half the employees’ requests to use ‘‘comp time’’ 780, 785, 786, and 790 regular rate of pay for hours worked in within a ‘‘reasonable period after making excess of forty (40) in a work week. The the request if the use of the RIN 1215–AB13, 1235–AA00 FLSA also contains a number of compensatory time does not unduly Updating Regulations Issued Under exemptions from the minimum wage disrupt the operations of the public the Fair Labor Standards Act and overtime pay requirements. agency.’’ 29 U.S.C. 207(o)(5). Finally, the Over the years, Congress has amended regulations governing the ‘‘fluctuating AGENCY: Wage and Hour Division, the FLSA to refine or to add to these workweek’’ method of computing half- Department of Labor. exemptions and to clarify the minimum time overtime pay for salaried ACTION: Final rule. wage and overtime pay requirements. A nonexempt employees, who work 1974 amendment to section 13(b)(10) of variable or fluctuating hours from week SUMMARY: In this final rule, the the FLSA, 29 U.S.C. 213(b)(10), to week need updating to delete Department of Labor (Department or extended an overtime exemption to outmoded examples. DOL) revises regulations issued include any salesman primarily engaged The Department published a notice of pursuant to the Fair Labor Standards in selling boats and eliminated the proposed rulemaking (NPRM) in the Act of 1938 (FLSA) and the Portal-to- overtime exemption for partsmen and Federal Register on July 28, 2008 (73 FR Portal Act of 1947 (Portal Act) that have mechanics servicing trailers or aircraft. 43654 (Jul. 28, 2008)), inviting become out of date because of Congress also in 1974 revised aspects of comments on revisions to the subsequent legislation. These revisions the FLSA’s tip credit provisions, 29 regulations to implement these statutory conform the regulations to FLSA U.S.C. 203(m) and (t), which were amendments and to address the issues amendments passed in 1974, 1977, further revised by amendments enacted raised by the courts. Comments were 1996, 1997, 1998, 1999, 2000, and 2007, in 1977 and 1996. As part of the Small due on or before September 11, 2008. In and Portal Act amendments passed in Business Job Protection Act of 1996, response to a number of requests for an 1996. Congress amended section 4(a) of the extension of the time period for filing DATES: Effective Date: These rules are Portal Act, 29 U.S.C. 254(a), to define written comments, the Department on effective on May 5, 2011. circumstances under which pay is not August 22, 2008 (73 FR 49621 (Aug. 22, required for employees who use their FOR FURTHER INFORMATION CONTACT: 2008)) extended the deadline 15 days to employer’s vehicle for home-to-work Montaniel Navarro, Wage and Hour September 26, 2008. The Department commuting purposes. The 1996 Act also Division, U.S. Department of Labor, received approximately 30 substantive created a youth opportunity wage of Room S–3502, 200 Constitution Avenue, comments in response to the NPRM $4.25 per hour under section 6(g) of the NW., Washington, DC 20210; telephone: from a variety of sources, including FLSA, 29 U.S.C. 206(g). In 1997, labor unions and other employee (202) 693–0067 (this is not a toll-free Congress amended section 13(b)(12) of representatives, employees, employer number). Copies of this final rule may the FLSA, 29 U.S.C. 213(b)(12), to organizations, governmental be obtained in alternative formats (Large expand the exemption from overtime representatives, Members of Congress, Print, Braille, Audio Tape or Disc), upon pay for workers on ditches, canals, and and law firms. Comments may be request, by calling (202) 693–0023 (not reservoirs when 90% (rather than 100%) viewed at http://www.regulations.gov, a toll-free number). TTY/TDD callers of the water is used for agricultural by searching for docket id: WHD–2008– may dial toll-free (877) 889–5627 to purposes. In 1998, Congress added 0003. obtain information or request materials section 3(e)(5) to the FLSA, 29 U.S.C. The comments reflected a wide in alternative formats. 203(e)(5), to provide that the term variety of views on the merits of Questions of interpretation and/or ‘‘employee’’ does not include particular sections of the proposed enforcement of regulations issued by individuals who volunteer to private regulations. Many included substantive this agency may be directed to the non-profit food banks solely for analyses of the proposed revisions. The nearest Wage and Hour Division (WHD) humanitarian purposes and who receive Department acknowledges that there are District Office. Locate the nearest office groceries from those food banks. In strongly held views on several of the by calling our toll-free help line at (866) 1999, Congress added section 3(y) to the issues presented in this rulemaking, and 4USWAGE ((866) 487–9243) between FLSA, 29 U.S.C. 203(y), to define an it has carefully considered all of the 8 a.m. and 5 p.m. in your local time employee who is engaged in ‘‘fire comments, analyses, and arguments zone, or log onto the WHD’s Web site for protection activities.’’ In 2000, Congress made for and against the proposed a nationwide listing of Wage and Hour added section 7(e)(8) to the FLSA, 29 changes in developing this final rule. District and Area Offices at: http:// U.S.C. 207(e)(8), that treats stock The Department has narrowed the scope www.dol.gov/esa/contacts/whd/ options meeting certain criteria as an of this final rule to address those america2.htm. additional type of remuneration that is sections which require change to reflect SUPPLEMENTARY INFORMATION: The excludable from the computation of the statutory enactment or outdated Regulatory Information Number (RIN) regular rate. As part of the U.S. Troop examples contained in the regulations identified for this rulemaking changed Readiness, Veterans’ Care, Katrina and therefore is not proceeding with with the publication of the 2010 Spring Recovery, and Iraq Accountability some of the changes proposed in the Regulatory Agenda due to an Appropriations Act, 2007, Congress NPRM including proposed changes to organizational restructuring. The old increased the FLSA minimum wage in regulations regarding compensatory RIN was assigned to the Employment three steps: to $5.85 per hour effective time, the fluctuating workweek, and

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meal credits. The Department is also not Management Association for Human end of the day are similarly proceeding with the proposed rule that Resources (IMPA–HR), the International noncompensable, such as service managers, service writers, Municipal Lawyers Association (IMLA), communication between the employee service advisors, and service salesman and the National League of Cities (NLC). and employer to obtain assignments or are exempted from the overtime Therefore, the final rule adopts the instructions, or to report work progress provision. We have also further clarified technical updates in these sections as or completion. Id. at 5. the tip credit provision to reflect long- proposed. This statutory amendment to the standing and settled WHD policy Portal Act affects certain regulations in concerning the ownership of tips. 2. Small Business Job Protection Act of 29 CFR parts 785 and 790 issued 1996 pursuant to the FLSA and the Portal II. Summary of Comments On August 20, 1996, Congress enacted Act. Current section 785.9(a) explains This section presents a topical the Small Business Job Protection Act of the statutory provisions that exclude summary of the major comments 1996 (SBJPA), Public Law 104–188, 100 from work time certain ‘‘preliminary’’ received on the proposed revisions, Stat. 1755. SBJPA amended the Portal and ‘‘postliminary’’ activities performed together with a discussion of the Act to define circumstances under prior to or subsequent to the workday. changes that have been made in the which pay is not required for employees The NPRM proposed to add to that final regulatory text in response to the who use their employer’s vehicle for section a new provision that activities comments received. home-to-work commuting purposes. It incidental to the use of an employer- 1. 2007 Amendment to the FLSA also amended the FLSA by creating a provided vehicle for commuting are not Minimum Wage youth opportunity wage and modifying considered principal activities, and are the allowable tip credit. not compensable, when they meet the The U.S. Troop Readiness, Veterans’ requirements of the 1996 amendment. Care, Katrina Recovery, and Iraq A. Employee Commuting Flexibility Act Current § 785.34 discusses the effect of Accountability Appropriations Act, of 1996 section 4 of the Portal Act on 2007, Public Law 110–28, 121 Stat. 112 Sections 2101 through 2103 of Title II determining whether time spent in (May 25, 2007), included an amendment of SBJPA, entitled the ‘‘Employee travel is working time. The NPRM to the FLSA that increased the Commuting Flexibility Act of 1996,’’ proposed to add a reference to the applicable Federal minimum wage amended section 4(a) of the Portal Act, statutory conditions under which under section 6(a) of the FLSA in three 29 U.S.C. 254(a). The amendment, commuting in an employer-provided steps: to $5.85 per hour effective July effective upon enactment, provides that vehicle will not be considered part of 24, 2007; to $6.55 per hour effective July the employee’s principal activities and 24, 2008; and to $7.25 per hour effective The use of an employer’s vehicle for travel by an employee and activities performed by therefore not compensable. The NPRM July 24, 2009. This legislation did not an employee which are incidental to the use also proposed to revise §§ 785.50 and change the definition of ‘‘wage’’ in of such vehicle for commuting shall not be 790.3 to incorporate the 1996 section 3(m) of the FLSA for purposes considered part of the employee’s principal amendment into the quotation of section of applying the tip credit formula in activities if the use of such vehicle for travel 4 of the Portal Act. determining the wage paid to a is within the normal commuting area for the A number of commenters addressed qualifying tipped employee. Thus, the employer’s business or establishment and the this proposal. Several commenters minimum required cash (or ‘‘direct’’) use of the employer’s vehicle is subject to an noted that the proposal simply quotes agreement on the part of the employer and wage for a tipped employee under the the statutory text in the regulation, and FLSA remains $2.13 per hour. The the employee or representative of such employee. they stated that the proposal therefore maximum allowable tip credit for does not provide adequate guidance Federal purposes under the FLSA Employee Commuting Flexibility Act of regarding the limited impact of this increased as a result of the 2007 1996, Section 2102, 29 U.S.C. 254(a). amendment. See National Employment legislation, and is determined by The House Committee Report states Lawyers Association (‘‘NELA’’), subtracting $2.13 from the applicable that the purpose of the amendment is to American Federation of Labor and minimum wage provided by section clarify how the Portal Act applies to Congress of Industrial Organizations 6(a)(1) of the FLSA. See 29 U.S.C. ‘‘employee use of employer-provided (‘‘AFL–CIO’’), National Employment 203(m). vehicles for commuting at the beginning Law Project (‘‘NELP’’), and Comments The Department proposed changes in and end of the workday.’’ H.R. Rep. No. from Members of United States several of the FLSA’s implementing 104–585, at 6 (1996). It states that such Congress. A variety of commenters regulations that cite to the applicable travel time is to be considered representing employees suggested that minimum wage to reflect these statutory noncompensable if the use of the the Department should emphasize the changes, including at 29 CFR 516.28, vehicle is ‘‘conducted under an narrow nature of this amendment by 531.36, 531.37, 778.110, 778.111, agreement between the employer and stating that, under the continuous 778.113, and 778.114, as well as the employee or the employee’s workday principle, it does not affect the changes to the McNamara-O’Hara representative.’’ Id. at 4. The agreement compensability of hours worked within Service Contract Act regulations to may be a formal written agreement, a the workday (the time between when an eliminate outdated references to the collective bargaining agreement, or an employee commences a principal FLSA minimum wage in 29 CFR 4.159 understanding based on established activity and the time the employee and 4.167. The Department did not industry or company practices. Id.; see ceases a principal activity). See, e.g., receive any comments specifically Rutti v. LoJack Corp., Inc., 596 F.3d NELA, NELP, North Carolina Justice addressing these non-substantive 1046, 1052 (9th Cir. 2010). In addition, Center, and Service Employees conforming updates, although several ‘‘the work sites must be located within International Union (‘‘SEIU’’). They also commenters did commend the the normal commuting area of the suggested that the Department should Department generally for its effort to employer’s establishment.’’ H.R. Rep. include clarifying language, such as the update the regulations. See, e.g., Littler No. 104–585, at 4. Activities that are statement that ‘‘otherwise non- Mendelson, P.C., Chamber of merely incidental to the use of the compensable [traveling] is not Commerce, International Public vehicle for commuting at the start or compensable merely because the

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employee uses his employer’s vehicle Department has not added language to 29 U.S.C. 206(g)(1). This subminimum * * * Likewise, otherwise compensable this effect to the final rule, it notes that wage ‘‘shall only apply to an employee travel time does not become non- its longstanding interpretation of the who has not attained the age of 20 compensable simply through the use of amendment comports with both the years.’’ 29 U.S.C. 206(g)(4). The an employer-owned vehicle.’’ See, e.g., Committee report and SHRM’s amendment also protects current NELP (quoting Burton v. Hillsborough comment. See Wage and Hour Opinion workers by prohibiting employers from County, 181 Fed. Appx. 829, 835 (11th Letter 2001–11 (April 18, 2001). taking action to displace employees, Cir. 2006) (unpublished)), NELA, North As the comments from both employee including reducing hours, wages, or Carolina Justice Center, and Greater and employer representatives show, the employment benefits, for the purpose of Boston Legal Services. They also question of the compensability of hiring workers at the opportunity wage. emphasized that the amendment did not employees’ commuting time is an 29 U.S.C. 206(g)(2). It also states that change the analysis of what constitutes important issue. Therefore, the any employer violating this subsection a ‘‘principal’’ work activity that is Department does not believe that it shall be considered to have violated the compensable. See NELP, SEIU, and would be helpful or appropriate to leave anti-discrimination provisions of NELA. These commenters cited court the regulations inconsistent with the section 15(a)(3) of the FLSA. 29 U.S.C. decisions addressing commuting time statute while it simply starts the NPRM 206(g)(3). issues, some of which they thought were process anew, as a number of employee The NPRM proposed to add a new correctly decided and some of which representatives suggested. Rather, in subpart G to 29 CFR part 786 to set forth they thought were wrong. Many of the order to avoid confusion and needless the provisions of the youth opportunity commenters suggested that the litigation, the Department continues to wage. The Department received one Department should withdraw its believe that it is important to update the comment regarding this update. The proposal and reissue a new NPRM that regulations to reflect the current state of National Automobile Dealers would provide concrete examples of the law by incorporating the statutory Association stated that it supported the what constitutes an activity that is provisions of the Employee Commuting proposal. The final rule adopts the new ‘‘incidental’’ to commuting and what Flexibility Act into the regulations. subpart G as proposed but changes the activities are compensable. See, e.g., Furthermore, the cases that both title to ‘‘Miscellaneous Exemptions and AFL–CIO, SEIU, NELP, and NELA. employee and employer representatives Exclusions from Coverage.’’ Commenters representing employers cited show that issues related to the approved of the addition of language to compensability of driving time and C. Tip Credit Amendments of 1996 the regulations to conform them to the other activities are very fact-specific and Section 2105 of Title II of the SBJPA Employee Commuting Flexibility Act. must be resolved on a case-by-case also amended section 3(m) of the FLSA, See Chamber of Commerce, Littler basis, in light of all the factors present 29 U.S.C. 203(m), by providing that Mendelson, P.C., Society for Human in the particular situation. As a result, In determining the wage an employer is Resource Management (‘‘SHRM’’), and the Department does not believe that it required to pay a tipped employee, the National Automobile Dealers would be useful to include examples in amount paid such employee by the Association. Both the Chamber of the regulatory text. The Department will employee’s employer shall be an amount Commerce and Littler Mendelson stated consider providing additional guidance equal to—(1) the cash wage paid such that it would be helpful for the at a later date on these and other issues, employee which for purposes of such Department to provide further guidance such as commuting distance, costs, determination shall be not less than the cash wage required to be paid such an employee regarding issues such as what types of incidental activities, and the nature of on the date of the enactment of this activities are incidental to the use of a the agreement through non-regulatory paragraph; and (2) an additional amount on vehicle for commuting, how the normal means. Similarly, because the account of the tips received by such commuting area of the employer’s regulations in 29 CFR part 790 already employee which amount is equal to the business is determined, and what fully address issues related to the difference between the wage specified in constitutes an agreement regarding the continuous workday principle and paragraph (1) and the wage in effect under use of an employer-provided vehicle. principal activities, the Department section 6(a)(1). The additional amount on Both commenters cited court decisions does not believe it is necessary to add account of tips may not exceed the value of the tips actually received by an employee. addressing these issues (holding, for to those regulations. The Department The preceding 2 sentences shall not apply example, that transporting tools and does observe, however, that nothing in with respect to any tipped employee unless equipment during a commute is the Employee Commuting Flexibility such employee has been informed by the incidental; that normal commuting area Act or this regulation alters or employer of the provisions of this subsection, is determined on a case-by-case basis; supersedes continuous workday and all tips received by such employee have and that a formal written agreement is principles. Only commuting time that been retained by the employee, except that not necessary). occurs before the first principle activity this subsection shall not be construed to SHRM also suggested that the final or after the last principle activity in the prohibit the pooling of tips among employees who customarily and regularly receive tips. rule should state that employees should workday is excluded from compensable not incur any out-of-pocket expenses time. Therefore, the final rule adopts the Public Law 104–188, § 2105(b) (1996). related to commuting, such as for gas, changes to §§ 785.9(a), 785.34, 785.50 Prior to the 1996 amendments, section tolls, parking or maintaining the and 790.3 as proposed. 3(m) of the FLSA required an employer employer’s vehicle. The Department to pay its tipped employees a cash wage notes that the House Committee Report B. Youth Opportunity Wage equal to 50 percent of the minimum similarly stated that ‘‘[i]t is the intent of Section 2105 of the SBJPA amended wage (then $4.25 an hour). See Public the Committee that the employee incur the FLSA by adding section 6(g), which Law 101–157, § 5 (1989). As amended, no out-of-pocket or direct cost for provides that ‘‘[a]ny employer may pay section 3(m)(1) provides that an driving, parking or otherwise any employee of such employer, during employer’s minimum cash wage maintaining the employer’s vehicle in the first 90 consecutive calendar days obligation to its tipped employees is the connection with commuting in after such employee is initially minimum cash wage required on August employer-provided vehicles.’’ H.R. Rep. employed by such employer, a wage 20, 1996, the date of the SBJPA No. 104–585, at 5. While the which is not less than $4.25 an hour.’’ enactment. Thus, section 3(m)(1)

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established an employer’s minimum 531.60 related to the statutory tip credit purposes) should count toward the new cash wage obligations to tipped calculation as proposed, except for the statutory 10 percent tolerance.’’ employees at the pre-SBJPA amount: 50 correction of a typographical error in The Department agrees that, in light of percent of the then-minimum wage of 531.50(a) and the cross-reference in the 10 percent tolerance for water used $4.25 per hour, or $2.13 per hour. See § 531.59. for non-agricultural purposes, there is 29 U.S.C. 203(m)(1). no longer any need for the specific 3. Agricultural Workers on Water Subsection (2) of the 1996 tolerance of domestic use by a farmer. Storage/Irrigation Projects amendments bases an employer’s Therefore, the final rule further modifies maximum allowable tip credit on a Section 105 of The Departments of proposed § 780.408 to delete the three specific formula in relation to the Labor, Health and Human Services, sentences relating to domestic use on applicable minimum wage, stating that Education, and Related Agencies farms. The final rule adopts §§ 780.400, an employer may take a tip credit equal Appropriations Act, Public Law 105–78, 780.401 and 780.406 as proposed. to the difference between the required 111 Stat. 1467 (Nov. 13, 1997), amended minimum cash wage specified in section 13(b)(12) of the FLSA, 29 U.S.C. 4. Certain Volunteers at Private Non- paragraph 3(m)(1) ($2.13) and the 213(b)(12), which provides an overtime Profit Food Banks minimum wage ($7.25 effective July 24, exemption for agricultural employees Section 1 of the Amy Somers 2009). Thus, the maximum Federal tip and employees employed in connection Volunteers at Food Banks Act, Public credit that an employer currently is with the operation or maintenance of Law 105–221, 112 Stat. 1248 (Aug. 7, permitted to claim under the FLSA is certain waterways used for supply and 1998), amended section 3(e) of the $7.25 minus $2.13, or $5.12 per hour. storing of water for agricultural FLSA, 29 U.S.C. 203(e), by adding As explained in the NPRM, this 1996 purposes. The 1997 amendment deleted section (5) to provide that the term amendment affects certain regulations ‘‘water for agricultural purposes’’ and ‘‘employee’’ does not include in 29 CFR part 531. Current § 531.50(a) substituted ‘‘water, at least 90 percent of individuals volunteering solely for quotes section 3(m) of the FLSA as it which was ultimately delivered for humanitarian purposes at private non- appeared in 1967, when the regulation agricultural purposes during the profit food banks and who receive was published. To incorporate the 1996 preceding calendar year.’’ Thus, this groceries from those food banks. 29 amendment, the NPRM proposed to amendment makes the exemption from U.S.C. 203(e)(5). The proposed rule replace the old statutory language with overtime pay requirements applicable to renamed 29 CFR part 786 the current statutory provision. Current workers on water storage and irrigation ‘‘Miscellaneous Exemptions and §§ 531.56(d), 531.59, and 531.60 refer to projects when at least 90 percent of the Exclusions From Coverage’’ and added the pre-1996 statutory language setting water is used for agricultural purposes, subpart H to set forth this exclusion the tip credit at 50 percent of the rather than when the water is used from FLSA coverage. The Department minimum wage. The proposed rule exclusively for agricultural purposes. did not receive any comments deleted or changed these references to The NPRM proposed to update the specifically addressing this section of reflect the current statutory regulations in 29 CFR part 780, Subpart the NPRM. The final rule adopts subpart requirements (maximum tip credit E to incorporate the statutory H as proposed. equaling the difference between the amendment. Thus, proposed § 780.400 minimum wage required by section correctly quoted the statute, including 5. Employees Engaged in Fire Protection 6(a)(1) of the FLSA and the $2.13 the amendment. Proposed § 780.401 Activities required cash wage). Additional changes provided an updated general In 1999, Congress amended section 3 related to tipped employees are explanatory statement of the history of of the FLSA, 29 U.S.C. 203, by adding discussed in this preamble at sections the exemption. Proposed § 780.406 section (y) to define ‘‘an employee in fire 7B and 8, infra. deleted the last sentence of the current protection activities.’’ This amendment The Department received many rule, which refers to the 1966 states that an ‘‘employee in fire comments relating to tipped employees; amendments, as no longer necessary. protection activities’’ means however, those comments generally Proposed § 780.408 was updated to addressed the issues discussed infra in describe the ‘‘at least 90 percent’’ an employee, including a firefighter, sections 7B and 8 of this preamble, not requirement for using the water for paramedic, emergency medical technician, the technical changes to the formula for agricultural purposes. rescue worker, ambulance personnel, or The Department received one hazardous material worker, who—(1) is computing the tip credit addressed here. trained in fire suppression, has the legal The Chamber of Commerce and Littler comment addressing this proposal. The authority and responsibility to engage in fire Mendelson, P.C., stated that they AFL–CIO noted that current § 780.408 suppression, and is employed by a fire supported these changes to the states that if a small amount of water is department of a municipality, county, fire regulations to conform them to the used by the farmer for domestic district, or State; and (2) is engaged in the statutory amendments, thereby purposes, this does not prevent the prevention, control, and extinguishment of clarifying that employers are only application of the exemption. The AFL– fires or response to emergency situations required to pay $2.13 per hour in cash CIO stated that the ‘‘[t]olerance for a where life, property, or the environment is at wages regardless of what the minimum ‘small amount’ of water that is used for risk. wage is. The Chamber of Commerce also domestic purposes may have made Public Law 106–151, 113 Stat. 1731 noted that there was a typographical sense under the old statutory provision, (1999); 29 U.S.C. 203(y). Such error in § 531.59(b); the cross-reference which required exclusive use of the employees may be covered by the to § 531.31 should have referred to water for agricultural purposes. partial overtime exemption allowed by § 531.54. Because the Department However, now that Congress has § 7(k) or the overtime exemption for received no other substantive comments amended the exemption to permit 10 public agencies with fewer than five relating to these issues, and having the percent of the water for non-agricultural employees in fire protection activities regulations consistent with the statute purposes, there is no longer any pursuant to § 13(b)(20). 29 U.S.C. 207(k); will help to eliminate confusion, the justification for this exception. Any 213(b)(20). final rule adopts the changes to water that is used for ‘domestic The NPRM proposed to make several §§ 531.50(a), 531.56(d), 531.59 and purposes’ (that is, non-agricultural revisions to 29 CFR part 553, subpart C,

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to incorporate this amendment. In the ‘‘permanent,’’ and regardless of their which require ‘‘that the employee either first sentence of proposed § 553.210(a), particular specialty or job title or be engaged in firefighting or respond to the statutory amendment language was assignment to certain support activities. emergencies.’’ They agreed with the substituted for the current four-part The Department stated its belief in the court’s statement in McGavock that regulatory definition of the term ‘‘any NPRM that these provisions are ‘‘emergency personnel trained as employee * * * in fire protection consistent with statutory intent and firefighters could be exempt even if they activities.’’ The proposed rule also remain the appropriate interpretation of ‘spend one hundred percent of their deleted the last sentence of current the new statutory definition and, thus, time responding to medical § 553.210(a) stating that, ‘‘[t]he term the Department proposed no further emergencies.’ ’’ They suggested that the would also include rescue and changes to § 553.210. Department add a sentence in § 553.210 ambulance service personnel if such Current § 553.212 recognizes that providing that emergency medical personnel form an integral part of the exempt employees may engage in some personnel who are employed by a fire public agency’s fire protection services,’’ nonexempt work, such as firefighters department and trained in fire and it deleted the cross-reference to who work for public forest conservation suppression will be exempt as long as § 553.215. The ‘‘integral part’’ test for the agencies and who plant trees and they either are engaged in firefighting or public agency employees is no longer perform other conservation activities respond to emergency situations. needed because the new statutory unrelated to their firefighting duties On the other hand, William Pincus, standards define when such rescue and during slack times, and set a 20% an attorney representing firefighters, tolerance for such work. As explained in ambulance personnel qualify as stated that the 20% test was not obsolete the NPRM, the Department reexamined employees in fire protection activities. because, even after the section 3(y) this regulation, particularly in light of Section 553.215(a) of the current rule amendment, it is still necessary to McGavock v. City of Water Valley, 452 discusses ambulance and rescue service distinguish between exempt and F.3d 423, 427–28 (5th Cir. 2006), in employees who are employees of a nonexempt activities. The 20 percent which the appellate court concluded public agency other than a fire test defines when employees who that the 20% tolerance for nonexempt protection or law enforcement agency. perform work that is nonexempt fall work in § 553.212 was rendered The section 3(y) amendment, however, outside the exemption. This commenter ‘‘obsolete and without effect’’ by the specifically states that one of the cited a pre-amendment court decision statutory amendment. 73 FR 43658 (Jul. requirements to be an ‘‘employee in fire holding that without the rule a public protection activities’’ is that the 28, 2008); see also Huff v. DeKalb County, Ga., 516 F.3d 1273, 1278 (11th agency would be free to assign a employee is employed by a fire firefighter to do any kind of work (road department of a municipality, county, Cir. 2008) (agreeing that new section 3(y) is a streamlined definition that repair, sanitation, parks and recreation) fire district, or State. The proposed rule, without fear of losing the exemption, therefore, deleted § 553.215(a) because it made existing provisions in §§ 553.210 and 553.212 obsolete). The proposed and stated that nothing in the permits non-fire department public amendment changes this analysis. The agencies to treat their ambulance and rule therefore deleted § 553.212 as unnecessary in light of these court International Association of Fire rescue service employees as employees Fighters (‘‘IAFF’’) commented that the engaged in fire protection activities, decisions and the new statutory ‘‘ second sentence of proposed contrary to the new statutory provision. definition of employee[s] in fire protection activities’’ in section 3(y) of § 553.210(a) would create confusion The proposed rule also deleted the Act. because, by using the wording ‘‘the term §§ 553.215(b) (stating that rescue service The Department received several includes’’, the proposal implies that employees of hospitals and nursing comments addressing these issues. The employees engaged in incidental homes cannot qualify for the exemption) National Public Employment Labor nonfirefighting functions such as and 553.215(c) (stating that ambulance Relations Association (‘‘NPELRA’’) equipment maintenance, attending and rescue service employees of private stated that the removal of the 20 percent community fire drills and inspecting organizations do not come within the test was ‘‘an important clarification’’ homes for fire hazards are exempt even exemption) as unnecessary in light of because it was obsolete and yet some if they do not satisfy the section 3(y) the clear statutory requirement for people still believe that it applies. This statutory criteria. The IAFF also stated employment by a fire department. commenter suggested that the rules that the third sentence of this section is Finally, in §§ 553.221, 553.222, 553.223, should go further in describing the overbroad because is suggests that the and 553.226, the Department proposed terms ‘‘legal authority and responsibility term includes all ‘‘trainees.’’ The IAFF to substitute ‘‘employee in fire to engage in fire suppression’’ (as stated that ‘‘trainees who have not protection activities’’ or ‘‘employees in meaning that the employee who has completed requisite training and have fire protection activities,’’ respectively, been trained may engage in such tasks) no certification in fire suppression are wherever the terms ‘‘firefighter’’ or and ‘‘is engaged in the prevention, neither ‘trained,’ nor have the ‘legal ‘‘firefighters’’ appeared. control or extinguishment of fires’’ authority * * * to engage,’ in fire The Department reexamined other (because a fire department at an airport suppression.’’ The commenter thus regulations in part 553, Subpart C, in may extinguish a fire only once per year distinguished between a ten-year light of the section 3(y) amendment to or less). The IMPA–HR, IMLA, and NLC firefighter sent to a training course in assess whether any other changes were stated that it was important to hazardous materials who remains appropriate. Current § 553.210 distinguish between the section 3(y)(1) exempt and an untrained individual in characterizes as exempt work-related tests relating to ‘‘the status of employees an introductory fire suppression course incidental activities, such as equipment who are trained in fire suppression— before certification. This commenter maintenance, lecturing and fire that they have the legal authority and further suggested that the third prevention inspections. Current responsibility to engage in fire sentence, relating to employees assigned § 553.210 also recognizes that suppression and be employed by a to support activities, is incorrect employees can be included within the public fire department’’—and the because ‘‘[w]here employees have been exemption whether their status is disjunctive test in section 3(y)(2) assigned to other jobs in which they do ‘‘trainee,’’ ‘‘probationary,’’ or relating to the duties of an employee, not have the authority or responsibility

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to engage in fire suppression and/or sporadic employment of public agency number of types of remuneration they do not engage in fire protection employees, including fire protection excluded in computing the regular rate. activities or response to emergency and law enforcement personnel, the Only two commenters addressed this situations, the employees do not fit the final rule also retains § 553.212(b), section of the proposed rule. SHRM statutory definition.’’ Finally, the IAFF which discusses this statutory stated that ‘‘[t]his addition to the stated that existing § 553.210(b) is provision. Section 553.212(b) does existing regulations is appropriate, and obsolete, and the Department should contain a reference to the 20 percent we encourage DOL to include it as remove it or explain why it is retained. tolerance for nonexempt work, and the proposed in its final rule.’’ The AFL– After careful review of the comments final rule makes a slight modification to CIO stated that the Department should received on this issue and reexamining that section to make clear that the do more than just restate the statutory the legislative history of the section 3(y) 20 percent tolerance is only applicable language, specifically noting the need to amendment, it is the Department’s view to law enforcement personnel. clarify how an employer must that the statutory definition of an With regard to the IAFF comments, communicate to employees the ‘‘terms ‘‘employee in fire protection activities’’ the current regulation at § 553.214 and conditions’’ of stock benefit requires no further regulatory guidance directly addresses the status of trainees, programs and under what ‘‘other at this time; however, the Department and it clarifies that a trainee qualifies for circumstances’’ an employee may may provide additional guidance in the exemption ‘‘only when the employee exercise a stock option or stock future, as appropriate. As a result, this meets all the applicable tests described appreciation right in less than six final rule implements the proposed in § 553.210.’’ The Department is not months. The AFL–CIO did not offer any change to § 553.210(a) substituting the aware of instances of the exemption regulatory language or suggested statutory amendment language for the being claimed for trainees who have not solutions that it thought would be current four-part regulatory definition of gained certification and therefore do not helpful, but only stated that the the term ‘‘any employee * * * in fire have the legal authority or responsibility Department should withdraw the protection activities.’’ In addition, the to engage in fire suppression, or of proposal and reissue a new NPRM Department is deleting the remainder of confusion surrounding this issue since providing further guidance. paragraph (a) as unnecessary due to the passage of the section 3(y) amendment. The Department does not believe that statutory definition. This change also Moreover, the Department believes that it would be helpful or appropriate to removes language from the rule that the statutory terms, such as legal leave the regulations inconsistent with commenters identified as confusing or authority and responsibility, should the statute while it starts the NPRM inconsistent with FLSA section 3(y). continue to be interpreted and applied process anew. Rather, in order to avoid Likewise, current paragraph (b) is on a case-by-case basis, based upon the confusion, the Department continues to deleted from this final rule because it is specific facts in each situation, as believe that it is important to update the no longer necessary. Current paragraph reflected in Wage and Hour Opinion regulations to reflect the current state of (c) of § 553.210 will be redesignated as Letter FLSA 2006–20 (June 1, 2006). the law by incorporating the Worker paragraph (b) in this final rule. Therefore, no additional changes are Economic Opportunity Act into the With regard to the 20 percent test, the required to implement this statutory regulations. Therefore, the final rule Department continues to believe that provision. adopts the changes to § 778.200 with Congress defined, without further minor editorial edits and § 778.208 as limitation, the particular criteria for 6. Stock Options Excluded From the Computation of the Regular Rate proposed. The Department will consider when an employee qualifies as ‘‘an offering further guidance on the issues The Worker Economic Opportunity employee in fire protection activities’’ in raised in the comments and other issues Act, Public Law 106–202, 114 Stat. 308 section 3(y). Thus, an employee who through non-regulatory means. performs the described duties under the (May 18, 2000), amended §§ 7(e) and circumstances and the conditions set 7(h) of the FLSA. 29 U.S.C. 207(e), (h). 7. Fair Labor Standards Act forth in section 3(y) is ‘‘an employee in In § 7(e), a new subsection (8) adds to Amendments of 1974 ’’ the types of remuneration that are fire protection activities without regard A. Service Advisors Working for to the 20 percent tolerance for excluded from the computation of the Automobile Dealerships and Boat nonexempt work contained in § 553.212 regular rate when determining overtime Salespersons of the current rule. The specific pay ‘‘[a]ny value or income derived from definition adopted by Congress renders employer-provided grants or rights On April 7, 1974, Congress enacted an the 20 percent tolerance for nonexempt provided pursuant to a stock option, amendment to section 13(b)(10) of the work applied under the former stock appreciation right, or bona fide FLSA, 29 U.S.C. 213(b)(10). Public Law regulatory definition obsolete. However, employee stock purchase program’’ 93–259, 88 Stat. 55 (1974). This § 553.212 also applies to employees meeting particular criteria. In § 7(h), the amendment added an overtime engaged in law enforcement activities, amendment clarifies that the amounts exemption for salespersons primarily and the definition of ‘‘an employee in excluded under § 7(e) may not be engaged in selling boats (in addition to fire protection activities’’ in section 3(y) counted toward the employer’s the pre-existing exemption for sellers of does not impact those employees. minimum wage requirement under trailers or aircraft). This amendment Therefore, the final rule does not delete section 6, and that extra compensation also eliminated the overtime exemption § 553.212(a) in its entirety; instead, it excluded pursuant to the new for partsmen and mechanics servicing deletes from § 553.212(a) only the subsection (8) may not be counted trailers or aircraft. The proposed rule reference to employees engaged in ‘‘fire toward overtime pay under § 7. revised 29 CFR part 779, Subpart D— protection’’. The 20 percent tolerance for The proposed rule incorporated the Exemptions for Certain Retail or Service nonexempt work for employees engaged amendments made by the Worker Establishments—to conform the in law enforcement activities in section Economic Opportunity Act by adding to regulations to this 1974 amendment. 553.212(a) will remain in effect. the regulatory provisions which simply Section 779.371(a) was revised to reflect Likewise, since section 3(y) did not quote the statute in § 778.200(a) and (b). the amendment’s addition of boat impact the applicability of section Section 778.208 was also revised simply salespersons to the exemption. Proposed 7(p)(2)’s rule regarding the occasional or to update from ‘‘seven’’ to ‘‘eight’’ the § 779.372(a) clarified that ‘‘any

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salesman, partsman, or mechanic’’ that it supported the proposed if they are selling the servicing of primarily engaged in selling or servicing clarification that such employees are vehicles that the dealership sells, which automobiles, trucks, or farm implements exempt. Littler Mendelson, P.C., would be difficult for both the employee are covered by the exemption; and that similarly stated that it supported the and the employer to know. Both NELP salespersons primarily engaged in change, because it ‘‘will eliminate and the North Carolina Justice selling trailers, boats, or aircraft are also confusion resulting from the Foundation commented that the exempt, but not partsmen or mechanics inconsistency between the [Field proposal exempts service writers based for such vehicles. Portions of Operations Handbook] and the current upon their job title alone, rather than § 779.372(b) and (c) were also changed regulatory guidance, and is not a change based upon an analysis of their actual accordingly. in the law.’’ job duties, which is contrary to the Section 13(b)(10)(A) of the FLSA Other commenters disagreed with the requirement to look at the provides that ‘‘any salesman, partsman, proposed rule. The AFL–CIO stated that circumstances of the whole activity. or mechanic primarily engaged in the proposal ignored congressional selling or servicing automobiles, trucks, intent ‘‘to carve a narrow exemption for Upon further consideration of the or farm implements, if he is employed salesmen who work at automobile issue, the Department has decided not by a nonmanufacturing establishment dealerships.’’ The AFL–CIO, NELA, and to adopt the proposed change to primarily engaged in the business of NELP traced the legislative history, § 779.372(c)(4) to specifically include selling such vehicles or implements to focusing on the addition of the service managers, service writers, ultimate purchasers’’ shall be exempt requirement that the salesman must be service advisors, or service salesmen as from the overtime requirements of the ‘‘primarily engaged in selling or qualifying for exemption. As Act. 29 U.S.C. 213(b)(10)(A). The servicing such vehicles.’’ These commenters point out, the statute does current regulation at 29 CFR commenters disagreed with the court not include such positions and the 779.372(c)(4) states that an employee decisions interpreting the exemption, Department recognizes that there are described as a service manager, service stating that service advisors merely circumstances under which the writer, service advisor, or service coordinate between customers and the requirements for the exemption would salesman who is not primarily engaged mechanics who actually perform the not be met. The Department notes that in the work of a salesman, partsman, or services, and that the exemption should current § 779.372(c)(1) is based on its mechanic is not exempt under section not be extended to employees outside reading of 13(b)(10)(A) as limiting the 13(b)(10)(A). its plain language simply because they exemption to salesmen who sell As discussed in the preamble to the are ‘‘functionally similar’’ to an exempt vehicles and partsmen and mechanics proposed rule, three appellate courts employee. The AFL–CIO concluded that who service vehicles. The Department have held that service advisors are ‘‘neither integration with exempt believes that this interpretation is exempt under section 13(b)(10)(A) employees nor the performance of reasonable and disagrees with the because they are ‘‘salesmen’’ who are functions related to those of exempt Fourth Circuit’s conclusion in Walton v. primarily engaged in servicing employees qualifies an employee as one Greenbrier Ford, Inc., 370 F.3d 446, 452 automobiles. 73 FR 43658 (Jul. 28, who is primarily engaged in either (4th Cir. 2004), that the regulation 2008). Based upon the two earliest court selling or servicing vehicles.’’ (Emphasis impermissibly narrows the statute. decisions, the Wage and Hour Division in original). NELA concluded that the Therefore, the Department has in 1978 recognized in an Administrator- exemption ‘‘requires an employee to concluded that current 779.372(c) sets issued opinion letter that in certain either primarily service the vehicle or forth the appropriate approach to circumstances service advisors or ‘sell’ the vehicle—not sell the service of determining whether employees in such writers ‘‘can be properly regarded as the vehicle, as Walton concluded.’’ positions are subject to the exemption. engaged in selling activities.’’ See Wage Comments submitted by Members of the However, the final rule adopts and Hour Opinion Letter WH–467, 1978 United States Congress similarly § 779.372(a)–(b) as proposed. WL 51403 (July 28, 1978). The opinion opposed the Department’s proposal, letter noted, however, that this ‘‘would stating that the 1966 exemption only B. Tipped Employees not be true in the case of warranty work, exempts salesmen who sell automobiles since the selling of the warranty is done and mechanics who service Section 3(m) of the FLSA defines the ‘‘ ’’ by the vehicle salesman when the automobiles, and not salesmen who sell term wage. The FLSA was amended in vehicle is sold, not by the service services. They stated that the 1966 to include hotels and restaurants writer.’’ Therefore, the NPRM proposed Department’s proposal ‘‘would abandon within the scope of its coverage for the to change § 779.372(c), titled ‘‘Salesman, its longstanding and correct first time. In order to alleviate these partsman, or mechanic,’’ to follow the interpretation of Section 13(b)(10),’’ and industries’ new minimum wage courts’ holdings that employees would ignore the Supreme Court’s obligations, the 1966 amendments also performing the duties typical of service command to construe FLSA exemptions provided for the first time, within advisors are within the section narrowly. Id. section 3(m)’s definition of a ‘‘wage,’’ 13(b)(10)(A) exemption. Section The AFL–CIO stated that, if the that an employer could utilize a limited 779.372(c)(1) was revised to include Department does treat service writers as amount of its employees’ tips as a credit such an employee as a salesman salesmen primarily engaged in servicing against its minimum wage obligations to primarily engaged in servicing vehicles, then it urged the Department those employees through a so-called ‘‘tip automobiles. Section 779.372(c)(4) was to exclude any time spent in ‘‘selling’’ credit.’’ The Department’s current tip rewritten to clarify that such employees warranty work from the determination credit regulations were promulgated in qualify for the exemption. of whether the writer has spent the 1967, one year after the tip credit was A number of commenters addressed majority of his time in selling, since that first introduced, and prior to the 1974 this issue. The National Automobile right to free parts and service has amendments to the FLSA, which Dealers Association stated that the retail already been sold by the salesman of the amended the tip credit provision in automobile and truck dealership vehicle. NELA stated that the proposed section 3(m) by providing that an industry has relied upon the regulatory text was confusing because it employer could not take a tip credit Administrator’s 1978 opinion letter and appears to exempt service writers only unless:

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(1) [its] employee has been informed by the Under the 1974 amendments to employer or that employees will turn employer of the provisions of this subsection section 3(m), an employer’s ability to tips over to their employers, and and (2) all tips received by such employee utilize an employee’s tips is limited to clarified that the availability of the tip have been retained by the employee, except taking a credit against the employee’s credit provided by section 3(m) requires that this subsection shall not be construed to prohibit the pooling of tips among employees tips as permitted by section 3(m). that all tips received must be paid out who customarily and regularly receive tips. Section 3(m) provides the only method to tipped employees in accordance with by which an employer may use tips the 1974 amendments. Section Public Law 93–259, § 13(e), 88 Stat. 55 received by an employee. An employer’s 531.55(a), which describes compulsory (1974). Thus, as amended in 1974, only options under section 3(m) are to service charges, also was updated by section 3(m) required that the employer take a credit against the employee’s tips changing the example of such a charge inform its employees about the tip up to the statutory differential, or to pay from 10 percent to 15 percent to reflect credit prior to utilizing it, required that the entire minimum wage directly. See more current customary industry a tipped employee retain all of his or Wage and Hour Opinion Letter her tips, and limited employer-imposed, practices. WH–536, 1989 WL 610348 (October 26, The 1974 amendments also clarified mandatory tip pools to employees who 1989) (defining when an employer does ‘‘ ’’ that section 3(m)’s statement that customarily and regularly receive tips. not claim a tip credit as when the The section 3(m) requirement that the employees must retain their tips does employer does not retain any tips and employer ‘‘inform’’ its tipped employees not preclude the practice of tip pooling pays the employee the minimum wage). ‘‘among employees who customarily and of the provisions of section 3(m) prior As amended in 1996, section 3(m) to taking a tip credit has been strictly regularly receive tips.’’ 29 U.S.C. 203(m). provides that the ‘‘wage’’ of a tipped The Department’s regulation on the enforced by the Department and by the employee equals the sum of the cash courts. Courts have disallowed the use subject provides that ‘‘the amounts wage paid by the employer, which is received and retained by each of the tip credit for lack of notice even fixed at a minimum of $2.13 an hour, ‘‘where the employee has actually individual [through a tip pooling and the amount it claims as a tip credit. arrangement] as his own are counted as received and retained base wages and The maximum permissible tip credit tips that together amply satisfy the his tips for purposes of the Act.’’ 29 CFR under section 3(m) is calculated using 531.54. minimum wage requirements,’’ the current Federal minimum wage. Wage and Hour has interpreted the tip remarking that ‘‘[i]f the penalty for Thus, in a situation in which an pooling clause more fully in opinion omitting notice appears harsh, it is also employee earns $10 an hour in tips and true that notice is not difficult for the the employer pays $2.13 an hour in cash letters and in its Field Operations ‘‘ ’’ employer to provide.’’ Reich v. Chez wages and claims the statutory Handbook ( FOH ). The FOH provides, Robert, Inc., 28 F.3d 401, 404 (3d Cir. maximum as a tip credit, the employee for example, that a tip pooling 1994) (citing Martin v. Tango’s has received only the minimum wage arrangement cannot require employees Restaurant, 969 F.2d 1319, 1323 (1st because tips in excess of the maximum to contribute a greater percentage of Cir. 1992)). tip credit are not considered ‘‘wages’’ their tips to the tip pool than is Prior to the 1974 amendments, the under 3(m). Using the current minimum ‘‘customary and reasonable.’’ FOH compensation of tipped employees was wage of $7.25 an hour as an example, section 30d04(b). The agency expanded often a matter of agreement. Tipped the maximum permissible tip credit is upon this position, in its opinion letters employees could agree, for example, $7.25 minus $2.13, which permits the and in litigation, that ‘‘customary and that an employer was only obligated to employer to take a tip credit against its reasonable’’ equates to 15 percent of an pay cash wages when an employee’s minimum wage obligation of $5.12 an employee’s tips or two percent of daily tips were less than the minimum wage, hour, provided it has informed its gross sales. See, e.g., Wage and Hour or that the employee’s tips would be tipped employees of the tip credit Opinion Letter WH–468, 1978 WL turned over to the employer, who could provision and has permitted the 51429 (Sept. 5, 1978). Several courts then use the tips to pay the full employees to retain all of their tips. have rejected the agency’s maximum minimum wage. See Usery v. Emersons Since the amount of tips the employee contribution percentages, however, Ltd., 1976 WL 1668, at *2 (E.D. Va. receives in excess of the allowable tip ‘‘because neither the statute nor the 1976), vacated and remanded on other credit are not considered ‘‘wages’’ paid regulations mention [the requirement grounds sub. nom. Marshall v. Emersons by the employer, any deductions by the stated in the agency interpretation] and Ltd., 593 F.2d 565 (4th Cir. 1979). The employer from the employee’s tips the opinion letters do not explain the 1974 section 3(m) amendments were would result in a violation of the statutory source for the limitation that intended to prohibit such agreements. employer’s minimum wage obligation they create.’’ Kilgore v. Outback See S. Rep. No. 93–690, at 43 (1974) because the employer has only paid the Steakhouse of Fla., Inc., 160 F.3d 294, (‘‘The [retention requirement] is added employee the minimum wage (cash 302–03 (6th Cir. 1998); see Davis v. B&S, to make clear the original Congressional wage of $2.13 plus the tip credit up to Inc., 38 F. Supp. 2d 707, 718 n.16 (N.D. intent that an employer could not use $7.25). A deduction from the Ind. 1998) (citing Dole v. Continental the tips of a ’tipped employee’ to satisfy employee’s tips would be subtracted Cuisine, Inc., 751 F. Supp. 799, 803 more than 50 percent of the Act’s from the $7.25 minimum wage payment (E.D. Ark. 1990) (‘‘The Court can find no applicable minimum wage.’’). The and would bring the employee below statutory or regulatory authority for the Department’s current regulations, which the minimum wage. Secretary’s opinion [articulated in an were in effect prior to the 1974 The NPRM proposed to update the opinion letter] that contributions in amendments and allowed an employer regulations to incorporate the 1974 excess of 15% of tips or 2% of daily to require employees to turn over all amendments, the legislative history, gross sales are excessive.’’). In light of their tips to the employer, were subsequent court decisions, and the these court decisions, the NPRM therefore superseded by the statutory Department’s interpretations. Proposed proposed to update § 531.54 to clarify amendment to the extent that they §§ 531.52, 531.55(a), 531.55(b), and that section 3(m) of the FLSA does not permitted employers to utilize 531.59 eliminated references to impose a maximum tip pool employees’ tips to satisfy more than employment agreements providing contribution percentage. Moreover, the 50% of their minimum wage obligation. either that tips are the property of the NPRM proposed to state that the

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employer must inform each employee of deductions so long as they did not ‘‘employers to significant liability the required tip pool contribution. reduce the direct wage payment below because it is out of step with the many The 1974 amendments also revised the minimum wage.’’ 73 FR 43659 (Jul. state laws prohibiting this action.’’ See another aspect of section 3(m). Prior to 28, 2008). They objected to these also North Carolina Justice Center. the 1974 amendments, section 3(m) of statements, based upon the legislative NELA similarly stated that the the FLSA provided that an employee history of the tip credit provisions. proposed regulations ‘‘create confusion could petition the Wage and Hour These commenters pointed out that with respect to the ownership of tips’’ Administrator to review the tip credit section 3(m) first was amended in 1966, because they suggest that if an employer claimed by an employer. See Public Law following a Supreme Court decision that pays a direct (or cash) wage slightly in 89–601, 80 Stat. 830 (1966) (‘‘[I]n the concluded that employers could use excess of the minimum wage, it can case of an employee who (either himself employees’ tips to satisfy the entire ‘‘thereby obtain unfettered access to its or acting through his representative) minimum wage. That amendment employees’ tips.’’ NELA stated that the shows to the satisfaction of the provided that employers could credit confusion ‘‘is particularly dangerous Secretary that the actual amount of tips tips toward 50 percent of the minimum given that some courts wrongly permit received by him was less than the wage. After the Wage and Hour Division employers to pocket the tips of amount determined by the employer as issued regulations concluding that an employees who are ‘paid’ at least the the amount by which the wage paid him employer could still require employees minimum wage.’’ Therefore, NELA was deemed to be increased * * * the to turn over all their tips, effectively suggested that the Department should amount paid such employee by his achieving a tip credit equal to 100 clarify that tips are the property of the employer shall be deemed to have been percent of the minimum wage, Congress employee who receives them and that increased by such lesser amount.’’). The again amended the statute in 1974 to the tip retention requirement applies 1974 amendments eliminated the provide that all tips received by an even if the employer pays a wage in review clause to clarify that the employee must be retained by the excess of the minimum wage. employer, not the employee, bears the employee (except for valid, or bona fide, The AFL–CIO similarly commented ultimate burden of proving ‘‘the amount tip pooling). The commenters noted that that the Department’s regulatory of tip credit, if any, [he] is entitled to the legislative history clarifies that ‘‘language—whether intended by the claim.’’ S. Rep. No. 93–690, at 43. Two Congress wanted in 1974 ‘‘to make clear Department or the result of poor outdated regulatory provisions [its] original * * * intent that an drafting—seems to permit employers to promulgated in 1967, however, still employer could not use the tips of a take the employee’s tips if they are paid purport to permit petitions to the Wage ‘tipped employee’ to satisfy more than the minimum wage or greater * * * and Hour Administrator for tip credit 50 percent of the Act’s applicable [which] was barred by Congress in review despite the fact that the statute minimum wage.’’ S. Rep. No. 93–690, at 1974.’’ See also Members of United no longer provides for this review. See 43. Congress also made it clear in 1974 States Congress. The AFL–CIO cited 29 CFR 531.7, 531.59. that ‘‘[a]ll tips received [by tipped numerous opinion letters and court Consistent with the 1974 employees were to] be paid out to decisions for the conclusion that, amendments, the NPRM proposed to tipped employees.’’ Id., at 42. The whether or not an employer claims any delete § 531.7, which permits employees commenters cited Wage and Hour tip credit, the employee must retain all to petition the Wage and Hour opinion letters, the FOH and Fact Sheet tips (asserting the few court decisions Administrator for tip credit review. #15 issued thereafter, which concluded that hold to the contrary are incorrect). References to the Administrator’s that the 1974 Amendments clarified Therefore, the AFL–CIO concluded that review in § 531.59 also were deleted, Congress’ determination that tips are the proposed § 531.52 would ‘‘turn the 1974 and the language was updated to reflect property of the employees who receive amendment on its head’’ by allowing the burden on the employer to prove the them, not the employer, and that any employers to require employees to amount of the tip credit to which it is agreement requiring an employee to surrender their tips when the entitled. turn over tips to the employer is, amendment bars such agreements; the Numerous commenters addressed the therefore, illegal. commenter further stated that the issues relating to tipped employees. Based upon this history, NELP stated proposal conflicts with proposed that the proposed rule and the preamble § 531.59, which states that section 3(m) i. Ownership of Employee Tips language provides ‘‘misleading guidance requires employers to permit employees Commenters representing employees on tips’’ and ‘‘threaten[s] to increase to retain all tips received with the expressed concern with several of the confusion in this already high-violation exception of a valid, or bona fide, tip Department’s proposed revisions. First, industry.’’ NELP asserted that it would pool. Bruckner Burch commented that a variety of commenters stated that they be unlawful for an employer to pay a the final rule could incorporate were opposed to the Department’s worker a cash wage of $1.00 in excess examples from the Department’s reference in § 531.52 to the fact that an of the full minimum wage and then opinion letters, such as Wage Hour employer is prohibited from using an withhold $1.00 per hour of a worker’s Opinion Letter WH–536, 1989 WL employee’s tips for any reason other tips, and that the Department ‘‘lacks the 610348 (Oct. 26 1989) (cited in the than to make up the difference between authority to create this exception to the preamble), explaining when deductions the required cash wage paid and the general rule against tip stealing.’’ NELP may be made from the tips of employees minimum wage where ‘‘an employee is further concluded that the proposed who are paid in excess of the minimum being paid wages no more than the regulations include misleading guidance wage, but that the rule as proposed minimum wage.’’ See, e.g., NELA, AFL– that is ‘‘confusing and encourages abuse created confusion. CIO, Bruckner Burch PLLC, and NELP. that would adversely impact both The Chamber of Commerce stated that These commenters further noted that tipped workers and their employers.’’ it supported the elimination of the the preamble addresses the converse Employers would hire workers for a references in current § 531.52 and other situation where an employer does pay wage that appeared to exceed the regulations to agreements between more than the minimum wage in cash, minimum wage, but then would lower employers and employees that would and the preamble states that such an their pay back to the minimum wage, make tips the property of the employer employer ‘‘would be able to make and such action would expose or require employees to turn over their

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tips to employers. The commenter obligation, except to the extent permitted by 315 U.S. 386 (1942), that ‘‘ ’[i]n stated that ‘‘Congress amended the FLSA section 3(m). businesses where tipping is customary, in 1974 to clarify that employers are not S. Rep. No. 95–440, at 25 (1977). In the tips, in the absence of an explicit permitted to retain employee tips. support of this statement, the Report contrary understanding, belong to the References within the current cites to two cases, Richard v. Marriott recipient. Where, however, such an regulations to agreements that could Corp., 549 F.2d 303 (4th Cir. 1977), and arrangement is made * * *, in the permit employers to do so were Usery v. Emersons Ltd., 1976 WL 1668 absence of statutory interference, no misleading and confusing, within the (E.D. Va. 1976), both of which reason is perceived for its invalidity.’ ’’ context of the congressional recognized shortly after the 1974 Woody Woo, 596 F.3d at 579 (quoting amendment.’’ amendments that while section 3(m) is Jacksonville Terminal, 315 U.S. at 397) The Department agrees with the not entirely clear, it had the effect of (emphasis added by the Ninth Circuit). analysis in the comments that tips are limiting an employer’s use of its Thus, the Ninth Circuit stated that the property of the employee, and that employees’ tips to the extent provided Jacksonville Terminal established a Congress deliberately amended the in the statute. In Marriott Corp., the ‘‘default rule that an arrangement to turn FLSA’s tip credit provisions in 1974 to Fourth Circuit concluded that tips over or to redistribute tips is clarify that section 3(m) provides the belonged to the tipped employee, and presumptively valid,’’ and that the only permitted uses of an employee’s that it was ‘‘nonsense’’ to argue after the question before the court was whether tips—through a tip credit or a valid tip 1974 amendments ‘‘that compliance the FLSA, as amended, ‘‘imposes any pool among only those employees who with the statute results in one-half ’statutory interference’ that would customarily and regularly receive tips. credit, but that defiance of the statute invalidate Woo’s tip-pooling This has been the Department’s results in 100 percent credit.’’ 549 F.2d arrangement.’’ Id. After ‘‘unpacking’’ longstanding position since the 1974 at 305. In Emersons Ltd., the district what it characterized to be ‘‘dense amendments. The Department has also court stated that ‘‘[w]hile [section 3(m)] statutory language’’ in section 3(m), the taken the position since the 1974 could have been worded more clearly, it court concluded that it is ‘‘clear’’ that the amendments that these protections is apparent, at least as a result of the current statutory language disrupts the against the use of an employee’s tips 1974 amendment, that Congress Jacksonville Terminal default rule only apply irrespective of whether the intended to give the employer the when a tip credit is taken, because the employer has elected the tip credit. language in the last sentence of section The legislative history of the Act, as benefits of tips received by the employee, but only to a limited extent.’’ 3(m), providing that an employer cannot well as caselaw and opinion letters take a tip credit unless it has provided published shortly after the 1974 1976 WL 1668, at *4. The Ninth Circuit recently held that notice and permits employees to retain amendments, support the Department’s all of their tips (except for a valid tip position that section 3(m) provides the section 3(m)’s limitations on an pool), ‘‘imposes conditions on taking a only permissible uses of an employee’s employer’s use of an employee’s tips tip credit and does not state tips regardless of whether a tip credit is apply only when the tip credit is taken, freestanding requirements pertaining to taken. As noted supra, the tip credit and that when a tip credit is not taken, all tipped employees.’’ Id. at 581. The provision permitting an employer to use tips are only the property of the Ninth Circuit therefore did not read an employee’s tips to satisfy 50 percent employee absent an agreement to the section 3(m) as imposing any limitations of the employer’s minimum wage contrary. Cumbie v. Woody Woo, Inc. on the use of an employee’s tips when obligation was originally enacted in d/b/a Vita Cafe´, 596 F.3d 577 (9th Cir. a tip credit is not taken. The court thus 1966. Public Law 89–601, § 101(a), 80 2010); see also Platek v. Duquesne Club, rejected the Department’s position in its Stat. 830 (1966). In 1974, when the Act 961 F. Supp. 835, 839 (W.D. Pa. 1995), amicus curiae brief that Woody Woo was amended, a Senate Report stated aff’d without opinion, 107 F.3d 863 (3d made improper deductions from the that the amendment was intended to Cir.) (Table), cert. denied, 522 U.S. 934 cash wage paid when it required its ‘‘requir[e] that all tips received be paid (1997). The Department respectfully employees to contribute their tips to an out to tipped employees.’’ S. Rep. No. believes that Woody Woo was invalid tip pool, and that this improper 96–690, at 42 (1974). The same Report incorrectly decided. The issue in Woody deduction resulted in a minimum wage further observed that the amendments Woo was whether section 3(m)’s violation because the tipped employees required employees to retain all of their limitation on mandatory tip pools to did not receive the full minimum wage tips (except to the extent that they are those employees who ‘‘customarily and plus all tips received. used in a valid tip pool) and clarified regularly’’ receive tips applies when an that an employer could not use its employer does not take a tip credit. In The Department believes the Ninth employees’ tips to satisfy more than 50 that case, tipped employees were Circuit incorrectly concluded that the percent of its minimum wage required to turn over the majority of 1974 amendments to the FLSA did not obligations. Id. at 42–43 (quoting 29 their tips to a tip pool that included alter what it characterized as CFR 531.52). In 1977, a Senate Report employees, such as cooks and Jacksonville Terminal’s default rule. from the Committee on Human dishwashers, who are not ‘‘customarily The fact that section 3(m) does not Resources considering further and regularly’’ tipped employees, and expressly address the use of an amendments to the FLSA indicated that received a small portion of their tips employee’s tips when a tip credit is not the role of tips in the calculation of an back from the tip pool. The employer taken leaves a ‘‘gap’’ in the statutory employer’s minimum wage obligations was precluded from taking a tip credit scheme, which the Department has to its tipped employees had been by State law and paid its tipped reasonably filled through its resolved by the 1974 amendments: employees the full State minimum longstanding interpretation of section wage, which exceeded the Federal 3(m). See Barnhart v. Walton, 535 U.S. Tips are not wages, and under the 1974 minimum wage. 212, 218 (2002) (‘‘[S]ilence, after all, amendments tips must be retained by the employees—which can include employees The Ninth Circuit started its analysis normally creates ambiguity. It does not who are in an appropriate tip pool—and in Woody Woo with a statement from resolve it.’’); see also Senger v. City of cannot be paid to the employer or otherwise the 1942 Supreme Court decision in Aberdeen, SD, 466 F.3d 670, 672 (8th used by the employer to offset his wage Williams v. Jacksonville Terminal Co., Cir. 2006) (recognizing Department’s

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authority to fill a ‘‘gap’’ in the FLSA’s The employee now receives only $7.25 Wage and Hour Opinion Letter WH– regulatory scheme). The Ninth Circuit’s an hour, rather than $12.13. And the 536, 1989 WL 610348 (Oct. 26, 1989). In ‘‘plain meaning’’ construction is employer, while it pays $7.25, gains such a situation, the deduction would unsupportable. Congress would not $10.00 that it can direct for its own be viewed as coming from the have had to legislatively permit purposes (in essence realizing a $2.75 employer’s direct wage payment that employers to use their employees’ tips profit from the employee’s tips). Thus, exceeds the minimum wage. This is to the extent authorized in section 3(m) under the Ninth Circuit’s ‘‘plain consistent with the Department’s unless tips were the property of the language’’ reading of section 3(m), an position regarding impermissible employee in the first instance. In other employer that does not utilize a tip deductions in the non-tip context. See words, if tips were not the property of credit is permitted to use its employee’s Wage and Hour Opinion Letter FLSA the employee, Congress would not have tips to a greater extent than an employer 2006–21, 2006 WL 1910966 (June 9, needed to specify that an employer is that does utilize such credit. This yields 2006) (explaining that no FLSA action only permitted to use its employees’ tips an absurd result and makes the 1974 lies against an employer who makes as a partial credit against its minimum amendment superfluous. impermissible deductions from cash wage obligations in certain prescribed As noted supra, the Department stated wages paid if those wages are in excess circumstances because an employer publicly immediately after the 1974 of the minimum wage and the would have been able to use all of its amendments that its tip credit deductions do not reduce the employees’ tips for any reason it saw fit. regulations permitting employers to take employee’s pay below the minimum If, as the Ninth Circuit held, the FLSA control of employee tips through wage). However, the Department agrees places limitations on an employer’s use agreements were outdated, and with the commenters that the payment of its employees’ tips only in the context indicated that new regulations were of tipped employees under the FLSA of a tip credit, an employer could forthcoming. See Wage and Hour and State laws is a very complex issue, simply eschew the tip credit and use a Opinion Letter WH–310, 1975 WL and that retention of this language from greater part of its employees’ tips 40934, at *1 (Feb. 18, 1975). The the proposed rule could result in toward its minimum wage obligations Department also explicitly stated that unintended confusion among the than permitted under section 3(m). This the 1974 amendments superseded regulated community. Consequently, the would stand the 1974 amendment ‘‘on Jacksonville Terminal, explaining that text in proposed § 531.52 is revised to its head’’ and would mean it has ‘‘the situation of a tipped employee is far delete the introductory phrase in the ‘‘accomplished nothing.’’ Emersons Ltd., different’’ than it was in 1942. Wage and fourth sentence of that section that 1976 WL 1668, at *4. If an employer Hour Opinion Letter WH–321, 1975 WL reads: ‘‘Where an employee is being paid could avail itself of this loophole, it 40945, at *1 (Apr. 30, 1975). As also wages no more than the minimum would have no reason to ever elect the noted supra, a number of commenters wage,’’ to clarify under the final rule that tip credit because, instead of using only voiced concern that the proposed an employer in all cases is prohibited a portion of its employees’ tips to fulfill regulatory text in § 531.52 was from using an employee’s tips for any its minimum wage obligation, it could confusing on this point, and did not reason other than as a tip credit to make use all of its employees’ tips to fulfill its make the Department’s position clear. In up the difference between the required entire minimum wage obligation to the order to codify its longstanding cash wage paid and the minimum wage tipped employees or other employees. interpretation of section 3(m) in its or in furtherance of a valid tip pool. regulations, and in response to these This is essentially what the panel’s commenters, the Department is ii. Required Employer Notice decision permits, because if there are no amending § 531.52 in the final rule to Commenters representing employees restrictions on an employer’s use of its make clear that tips are the property of also objected to the Department’s employees’ tips when it does not utilize the employee, and that section 3(m) sets proposal in § 531.59(b) and the a tip credit, the employer can institute forth the only permitted uses of an accompanying preamble providing that a mandatory tip pool that requires employee’s tips—either through a tip employers only have to ‘‘inform’’ employees to contribute all of their tips credit or a valid tip pool—whether or employees orally that they will treat tips regardless of how much they receive not the employer has elected the tip as satisfying part of the employer’s back, or mandate that employees turn credit. minimum wage obligation, but do not over all of their tips and use those tips The inclusion of the text in proposed have to ‘‘explain’’ the tip credit or to pay the minimum wage or for any § 531.52 reading ‘‘Where an employee is provide anything in writing. For other purpose. being paid wages no more than the example, NELP commented that the For example, if an employer is subject minimum wage’’ was intended to legislative history ‘‘makes clear that to the current Federal minimum wage of convey the fact that the Department informing workers is no mere formality, $7.25 an hour and its tipped employees only has authority under the FLSA to but that the employer must indeed receive $10 an hour in tips, an employer enforce, inter alia, the minimum wage explain the tip credit.’’ NELP quoted who uses the maximum tip credit provisions of that Act. See, e.g., 29 S. Rep. 93–690 at 43 (1974), which against its minimum wage obligation U.S.C. 216, 217. Thus, if an employer provides that the employer is has to pay a cash wage of $2.13 and can pays the employee a direct wage in responsible for informing a tipped ‘‘use’’ $5.12 of an employee’s tips as a excess of the minimum wage—and thus employee how the wage was calculated credit toward the rest of the minimum did not claim a credit against any and that ‘‘the employer must explain the wage payment. The employee thus portion of the employee’s tips and did tip provision of the Act to the employee receives $2.13 in cash wages and keeps not utilize the employee’s tips in any and that all tips received by such all of her $10 in tips, for a total of way—the employer would be able to employee must be retained by the $12.13. Woody Woo, however, permits make deductions but only from the cash employee.’’ NELP stated that many an employer who eschews the tip credit wage amount paid directly by the tipped employees are low-wage and to pay $7.25 to its tipped employees in employer and only to the extent that the immigrant employees working in high- cash wages to satisfy its minimum wage deductions did not reduce the violation industries, and they do not obligation and require an employee to employer’s direct wage payment to an understand the complicated tip credit turn over all $10 of the employee’s tips. amount below the minimum wage. See rules. NELP suggested that requiring

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employers to provide a clear written sufficient tips, that the employee will information that employers are required explanation to employees upon hire retain all of his or her tips, and the to communicate. would help them understand the rules formula for any tip pooling The Chamber of Commerce and Littler and would help employers because it arrangement. These commenters stated Mendelson, P.C., agreed with the ‘‘would enable them to protect that the Department should not rely on proposal regarding what an employer themselves from litigation claiming that Kilgore v. Outback Steakhouse of must communicate to employees and they failed to provide adequate notice Florida, Inc., 160 F.3d 294 (6th Cir. stated that it can be oral. They stated the and therefore cannot take the tip credit.’’ 1998), the case cited in the preamble to proposal is a positive step in clarifying See also North Carolina Justice Center, the proposed rule, because it was employer obligations and, thus, it Greater Boston Legal Services (simply wrongly decided on the notice issue in should reduce the litigation on this informing an employee that it will use that it did not take into account the issue by clearly articulating the required the tip credit would be ‘‘jargon that legislative history or the statutory content of the notice. would be meaningless to many workers, language requiring employees to be Section 3(m)(2) of the Act provides especially those with limited English informed of the provisions of section that the tip credit provisions ‘‘shall not proficiency or immigrant workers with 3(m). These commenters pointed, apply with respect to any tipped limited experience with wages in this instead, to other decisions that held employee unless such employee has country * * * Having the explanation employers could not utilize the tip been informed by the employer of the in writing, moreover, is especially credit where they had not adequately provisions of this subsection, and all important to those workers who may informed employees of the law’s tips received by such employee have want or need to seek additional requirements. Finally, NELA objected to been retained by such employee [except assistance, outside the workplace, to the suggestion that paychecks received for] pooling of tips among employees understand the information they are after the work is performed or prior who customarily and regularly receive being provided.’’); Members of United work history can provide the requisite tips.’’ 29 U.S.C. 203(m)(2) (emphasis States Congress (the regulation should notice, because the statute requires an added). The ‘‘provisions of this require employers to explain the tip employer to provide notice of the tip subsection’’ include how to determine credit rules so that employees credit provisions prior to taking any tip the wage an employer is required to pay understand ‘‘how their wages are credit. a tipped employee, which is ‘‘the calculated, as a matter of fairness and as amount paid such employee by the Epstein Becker commented that the a way of enforcing the law * * * To employee’s employer’’ (an amount that notice provision of section 3(m) does satisfy these goals, the Department cannot be less than the cash wage not require an employer to should require employers to provide required to be paid to a tipped employee communicate its intent to use the tip written notice * * * Written notice will on August 20, 1996, which was $2.13), credit; rather, it requires an employer to also prevent unnecessary litigation, by and ‘‘the additional amount on account communicate the provisions of the improving employees’ understanding of of the tips received by such employee’’ section. Epstein Becker stated that the their rights.’’). (an amount equal to the difference The AFL–CIO submitted similar cases that require an employer to between the actual cash wage paid and comments and stated that the proposed communicate its intent to treat tips as the full minimum wage in effect under regulation ‘‘fails to satisfy the plain satisfying part of the minimum wage section 6(a)(1) of the Act). A Senate language of the statute, which requires obligation do so without analysis of the Report accompanying the 1974 not just that the employer ‘inform’ the statutory language and are incorrect. amendments stated that the amendment employee that it is taking a tip credit, Epstein Becker further asserted that the ‘‘modifies Section 3(m) of the [FLSA] by but that ‘the employer [inform the information that would be useful to requiring employer explanation to employee] of the provisions of this employees and required by section 3(m) employees of the tip credit provisions, subsection.’ ’’ NELA also submitted is that the employer must supplement and by requiring that all tips received be similar comments and stated that, given an employee’s tips if they are paid out to tipped employees. * * * the increasing importance of employee insufficient to raise the wage level to the The tip credit provision of S. 2747 is tips vis-a`-vis the minimum wage, the tip minimum wage, that the cash wage designed to insure employer credit regulations should ensure the fair must be at least $2.13, and all tips responsibility for proper computation of operation of the tip credit provisions. earned must be retained by the the tip allowance and to make clear that Because the FLSA poster (Publication employee absent a valid tip pooling the employer is responsible for 1088) provides only a limited arrangement (and perhaps information informing the tipped employee of how description of the tip credit rules and regarding the required information as to such employee’s wage is calculated. recognizes that ‘‘other conditions must the tip pool, although this is ‘‘difficult Thus, the bill specifically requires that also be met,’’ several commenters to reconcile with the statute’s the employer must explain the suggested that the regulation should set language’’). The commenter stated that provision of the Act to the employee forth a sample notice providing the the proposed regulation, requiring and that all tips received by such required explanation in full. NELA, the communication of the employer’s intent employee must be retained by the AFL–CIO, and Bruckner Burch PLLC to use the tip credit, does little to employee.’’ S. Rep. No. 93–690 at 42–43 stated that employers must tell advance the purpose of the statute (1974) (emphasis added). employees not only that the employer because virtually all employees know As discussed in the preamble to the will be using the tip credit, but also that their employer intends to pay them a proposed rule, the courts have disagreed a minimum wage is required by law, the reduced tip wage based on prior work over the level of notice required to amount of the minimum wage, how the in the industry and any ‘‘inform’’ a tipped employee about tip credit works—that the employer misunderstanding would be resolved section 3(m). Thus, in Kilgore v. must pay $2.13 and the balance of the with the first paycheck. Finally, Epstein Outback Steakhouse of Florida, Inc., full minimum wage required by the Act Becker stated that the information on 160 F.3d 294, 298 (6th Cir. 1998), the can come from the tip credit but that the the FLSA poster (Publication 1088) is Sixth Circuit held that while an employer must make up the difference concise and understandable, and that employer must ‘‘inform its employees of if the employee does not receive the poster should contain all its intent to take a tip credit toward the

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employer’s minimum wage obligation,’’ against tips received, which cannot adequate, permit employers to it was not required to ‘‘explain’’ the tip exceed the difference between the document that they have met the credit. In Martin v. Tango’s Restaurant, minimum wage specified in section requirements in section 3(m) and the Inc., on the other hand, the First Circuit 6(a)(1) of the FLSA and the actual cash Department’s regulations to ‘‘inform’’ interpreted section 3(m)’s notice wage paid by the employer to the tipped employees of the tip credit provision to require, ‘‘at the very least employee; (3) that the additional provision. Finally, the Final Rule notice to employees of the employer’s amount claimed by the employer on changes the word ‘‘bona fide’’ in the last intention to treat tips as satisfying part account of tips as the tip credit may not sentence in proposed § 531.59(b) to of the employer’s minimum wage exceed the value of the tips actually ‘‘valid’’; although both terms in this obligations,’’ and stated that the received by the employee; (4) that the context refer to a tip pool that includes provision ‘‘could easily be read to tip credit shall not apply with respect to only those employees who customarily require more.’’ 969 F.2d 1319, 1322 (1st any tipped employee unless the and regularly receive tips, the term Cir. 1992); see Reich v. Chez Robert, employee has been informed of the tip ‘‘valid’’ is used in those regulations Inc., 821 F. Supp. 967, 977 (D. N.J. 1993) credit provisions of section 3(m) of the pertaining to tips for consistency. (an employer does not meet its Act; and (5) that all tips received by the iii. Tip Pools obligation to ‘‘inform’’ under section tipped employee must be retained by 3(m) when it tells its tipped employees the employee except for the pooling of Commenters also addressed issues that they will be paid a specific wage tips among employees who customarily relating to tip pooling. As noted, the but does not explain that that wage is and regularly receive tips. Furthermore, NPRM proposed to add two new below the minimum wage and that it is the current FLSA recordkeeping sentences to § 531.54 (‘‘Tip pooling’’) to permitted by law based on the regulation, at 29 CFR 516.28(a)(3), explain that the FLSA does not set a employees’ tips), rev’d on other expressly requires that the amount per maximum cap on the percentage of an grounds, 28 F.3d 401 (3d Cir. 1994)). In hour that the employer takes as a tip employee’s tips that may be contributed Pellon v. Business Representation Int’l, credit shall be reported to the employee to a valid tip pool, but that an employer Inc., 528 F. Supp. 2d 1306, 1310–11 in writing each time it is changed from must notify its tipped employees of any (S.D. Fla. 2007), aff’d, 291 Fed. Appx. the amount per hour taken in the required tip pool contribution amount. 310 (11th Cir. 2008), the district court preceding week. 73 FR 43667 (Jul. 28, 2008). UNITE held that the employer in that case had Upon careful reexamination of the HERE stated its belief that tip pooling fulfilled its duty to ‘‘inform’’ its tipped terms of the statute, its legislative must be voluntary, as indicated by current § 531.54 stating that an employees of the provisions of section history, and a review of the public employer may redistribute tips to 3(m) by posting the FLSA poster and comments, the Department is revising employees ‘‘upon some basis to which verbally notifying the employees that its interpretation from the NPRM of the they have mutually agreed among they would be paid $2.13 an hour plus level of explanation that employers themselves,’’ and concluded that an tips, but noted that ‘‘a prominently must provide when informing tipped employer should not be able to require displayed poster containing all of the employees about the tip credit pursuant employees to participate in a tip pool relevant tip credit information’’ would to section 3(m). Accordingly, the text of because the rules the employer created also constitute sufficient notice. In the second and third sentences in might not be fair. It particularly saw a Bonham v. Copper Cellar Corp., 476 F. proposed § 531.59(b) are combined and revised in the final rule to provide: mandatory pool as a concern if it Supp. 98 (E.D. Tenn. 1979), on the other actually involved mandatory tip hand, the court held that vague * * * Pursuant to section 3(m), an splitting, because then the employer references to the minimum wage and a employer is not eligible to take the tip credit could reduce the tipped employee to the poster that was not prominently unless it has informed its tipped employees ‘‘ in advance of the employer’s use of the tip minimum wage and use the tips to displayed did not meet the requirement augment the cash compensation of other to ‘‘inform.’’ credit of the provisions of section 3(m) of the Act, i.e.: The amount of the cash wage that employees, thereby allowing the The Department has concluded that is to be paid to the tipped employee by the employer to reduce its own notice of the specific provisions of 3(m) employer; the additional amount by which expenditures.’’ It stated that the is required to adequately inform the the wages of the tipped employee are requirement that an employee retain all employee of the requirements of the tip increased on account of the tip credit tips ‘‘would be swallowed up by the credit. To the extent that the Sixth claimed by the employer, which amount may exception’’ in this situation. Therefore, Circuit and other courts have reached not exceed the value of the tips actually received by the employee; that all tips UNITE HERE objected to the new different results, the Department notes received by the tipped employee must be language in § 531.54 referring to ‘‘any that those courts generally failed to retained by the employee except for a valid required tip pool contribution amount’’ consider the important legislative tip pooling arrangement limited to employees and stated that employers should not be developments underlying the FLSA’s tip who customarily and regularly receive tips; permitted to require tipping out or tip credit provisions and we choose to not and that the tip credit shall not apply to any pooling. It also stated that where tip be guided by those decisions in this employee who has not been informed of pooling is voluntary, there is no need revision of the regulations. Accordingly, these requirements in this section. * * * for a percentage limitation and the based on the express provisions of the Many commenters urged the common practice is for employees to statute and the supporting legislative Department to require employers to contribute all tips. UNITE HERE further history, the Department agrees with the provide written notice to its tipped commented that, if the Department commenters stating that an employer employees that explain section 3(m)’s allows mandatory tip pooling, the must inform a tipped employee before it tip credit provision. Although the regulations should ensure that the pool utilizes the tip credit, of the following: Department is not requiring in this rule is valid or ‘‘bona fide’’ such as by (1) The direct cash wage the employer that the employer ‘‘inform’’ its tipped clarifying that employers may not retain is paying a tipped employee, which can employees of section 3(m)’s any of the tips, tips may only go to be more than, but cannot be less than, requirements in writing, employers may employees who regularly and $2.13 per hour; (2) the additional wish to do so, since a physical customarily receive tips (not employees amount the employer is using as a credit document would, if the notice is such as cooks, dishwashers and

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janitors), and employers may only take the statute. Therefore, the final rule adequate, and whether or not the credit for the amount each employee adopts the proposed changes to these employer is only deducting the actually ultimately receives. regulations. reasonable cost of such meals.’’ It also NELP objected to the proposed rule’s stated that it disadvantages employees 9. Meal Credit Under Section 3(m) statement that the FLSA does not who are unable to eat a meal because of impose a maximum contribution The NPRM proposed to amend dietary or health restrictions. Therefore, percentage on tip pools, stating that not § 531.30 to incorporate the Department’s it concluded that the Department should having a cap ‘‘makes it easier for longstanding enforcement position issue guidance on the circumstances employers to skim tips for themselves.’’ regarding the acceptance of meals when an employer can claim a meal It suggested that the rule impose a furnished as a credit towards the credit. NELP similarly stated that ‘‘customary and reasonable’’ standard, minimum wage. A ‘‘wage’’ paid pursuant workers should not be required to pay which it concluded may reasonably be to section 3(m) of the FLSA may include for meals that they cannot eat. NELP read into the FLSA. See also North ‘‘the reasonable cost * * * to the stated that workers sometimes are not Carolina Justice Center and AFL–CIO. employer of furnishing * * * board, given an opportunity to eat a mid-shift The Chamber of Commerce and Littler lodging, or other facilities * * * meal, and yet an employer may Mendelson, P.C. stated that they customarily furnished by such employer automatically make a deduction for that supported the elimination of the cap on to his employees.’’ 29 U.S.C. 203(m). meal. The meal provided may also ‘‘the amount employers could require ‘‘Facilities’’ include employer-provided consist of inferior ingredients or other tipped employees to ‘tip out’ to other meals. See 29 CFR 531.32. The dishes that cannot be offered for sale. tipped employees,’’ noting that the rule Department’s regulation at 29 CFR See also North Carolina Justice Center. requires an employer to notify 531.30, however, provides that an Comments by Members of United States employees of the amount they will be employer’s ability to take credit for a Congress also stated that they opposed required to contribute to a tip pool. facility is limited to those instances the change because ‘‘employees may not They stated that the tip credit rules where an employee’s acceptance was even be able to consume employer- ensure that employees will retain a ‘‘voluntary and uncoerced.’’ In other provided meals, because of dietary sufficient proportion of their tips to words, an employer could not take a restrictions associated with their health, satisfy minimum wage. Accordingly, wage credit for employees who did not religion, personal preference, or the lack Littler Mendelson, P.C., concluded that choose to accept the meal. of time to eat the meals.’’ The SEIU After a number of courts rejected the ‘‘no employee will be harmed in any recognized that the proposed change to agency’s position on this point with way even if a higher percentage of their reflect the court cases and the FOH regard to credit for meals, the agency tips are contributed to a tip pool.’’ policy was ‘‘unremarkable’’ and that adopted an enforcement position In response to the comments, the whether an employee accepted a meal Department has modified the two providing that an employer can take a meal credit even if an employee does voluntarily had not been a pressing proposed new sentences at the end of issue for 25 years. The SEIU commented § 531.54 to read: not voluntarily accept the meal. See FOH section 30c09(b) (‘‘WH no longer that the real issue was employees not * * * Section 3(m) does not impose a enforces the ‘voluntary’ provision with being given the time to eat the meal for maximum contribution percentage on valid ’’ which they were charged or given notice mandatory tip pools, which can only include respect to meals. ); see also Davis Bros., Inc. v. Donovan, 700 F.2d 1368, 1370 of how the cost of the meal is those employees who customarily and calculated. Therefore, the SEIU regularly receive tips. However, an employer (11th Cir. 1983); Donovan v. Miller Properties, Inc., 711 F.2d 49, 50 (5th Cir. suggested that the regulation require must notify its employees of any required tip that employers using a meal credit pool contribution amount, may only take a 1983) (per curiam). tip credit for the amount of tips each Thus, under the agency’s current ‘‘maintain timekeeping records to employee ultimately receives, and may not enforcement policy articulated in the indicate that the workers subject to the retain any of the employees’ tips for any FOH, an employer may require an meal credit deduction actually had the other purpose. employee to accept a meal provided by time and opportunity to consume the Other aspects of tip pooling are the employer as a condition of meal’’ and that they must provide discussed in the section on ownership employment, and may take credit for no employees with written notice that the of tips, supra. more than the actual cost of that meal meal cost will be deducted and an even if the employee’s acceptance is not explanation as to how the cost was 8. Fair Labor Standards Act voluntary. The NPRM proposed to calculated. Amendments of 1977 amend 29 CFR 531.30 to reflect previous As explained supra, the former On November 1, 1977, Congress court decisions and the agency’s current requirement that employee acceptance amended section 3(t) of the FLSA, 29 enforcement posture on meal credits. of a meal must be voluntary was U.S.C. 203(t). Public Law 95–151, § 3(a), Several commenters addressed this rejected in the early 1980s by two courts 91 Stat. 1245. Section 3(t) of the FLSA issue. Littler Mendelson, P.C., stated of appeals. Davis Bros. v. Donovan, 700 defines the phrase ‘‘tipped employee.’’ that it supported the proposal providing F.2d 1368 (11th Cir. 1983); Donovan v. Prior to the 1977 amendment, the that an employee does not have to Miller Properties, Inc., 711 F.2d 49 (5th definition encompassed ‘‘any employee voluntarily accept a meal, stating that Cir. 1983) (per curiam). The engaged in an occupation in which he this was ‘‘not a change in the law’’ Department’s enforcement position customarily and regularly receives more because it merely incorporates the Wage adopted after those rulings provided than $20 a month in tips.’’ The 1977 and Hour Division’s current policy and that where an employee is required to amendment raised the threshold in court decisions into the regulations. accept a meal as a condition of section 3(t) to $30 a month in tips. The Commenters representing employees employment, the Department would proposed rule changed the references in expressed a variety of views. The AFL– take no enforcement action provided the 29 CFR 531.50(b), 531.51, 531.56(a)–(e), CIO stated that it opposed the change employer takes credit for no more than 531.57, and 531.58 from $20 to $30. The because it will make it easier for the actual cost incurred. FOH 30c09(b). commenters did not specifically address employers to deduct from workers’ pay, It should be noted that the employer in these technical updates to conform to ‘‘whether or not such meals are Davis Bros. deducted from employees’

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wages no more than the actual or local governments, Congress added employee) reached prior to the performance reasonable cost of the food provided, section 7(o), 29 U.S.C. 207(o), to the of the work. (See § 553.23). To the extent that and allowed exceptions for employees FLSA to permit public agencies (i.e., the []conditions under which an employee who for medical reasons could not eat can take compensatory time off are contained States, local governments, and interstate in an agreement or understanding as defined the food offered. There was no agencies) to grant employees in § 553.23, the terms of such agreement or allegation of minimum wage violations compensatory time off in lieu of cash understanding will govern the meaning of based on the amount of the credit overtime compensation pursuant to an ‘‘reasonable period’’. claimed, but simply that the employee’s agreement with the employees or their Section 553.25(d) states: acceptance was made mandatory and representatives. The purpose of this not voluntary in contravention of exception to the Act’s usual requirement When an employer receives a request for § 531.30. 700 F.2d at 1369–70. The ‘‘ compensatory time off, it shall be honored of cash overtime pay was to provide unless to do so would be ‘‘unduly disruptive’’ Eleventh Circuit failed to discern any flexibility to State and local government to the agency’s operations. Mere basis for the Department’s construction employers and an element of choice to inconvenience to the employer is an in section 3(m) of ‘‘customarily their employees regarding compensation insufficient basis for denial of a request for furnished’’ by the employer to mean for statutory overtime hours.’’ H.R. Rep. compensatory time off. (See H. Rep. 99–331, ‘‘voluntarily accepted’’ by the No. 99–331 (1985). p. 23.) For an agency to turn down a request employees. Id. at 1370. In the Miller Section 7(o) provides a detailed from an employee for compensatory time off Properties case, the Fifth Circuit scheme for the accrual and use of requires that it should reasonably and in affirmed a lower district court ruling in compensatory time off. Subsection good faith anticipate that it would impose an the employer’s favor in a very brief unreasonable burden on the agency’s ability 7(o)(1) authorizes the provision of to provide services of acceptable quality and decision that did not analyze the compensatory time off in lieu of quantity for the public during the time particular facts but simply stated it was overtime pay. Subsection 7(o)(2) requested without the use of the employee’s affirming based on the reasoning of the specifies how a public employer creates services. Eleventh Circuit in Davis Bros. Donovan a compensatory time off plan. The Department has consistently v. Miller Properties, Inc., 711 F.2d at 50. Subsection 7(o)(3) establishes limits for The proposed revisions to § 531.30 interpreted its regulations as requiring the amount of compensatory time off that an employee’s request for did not modify or otherwise excuse that an employee may accrue. Section compliance with other applicable compensatory time on a specific date 7(o)(4) provides the requirements for must be granted unless doing so would requirements that limit an employer’s cashing out compensatory time upon an credit for the reasonable or actual costs unduly disrupt the agency’s operations. employee’s termination.Section 7(o)(5) Wage and Hour Opinion Letter 1994 WL to the employer of furnishing the governs a public employee’s use of employee with board, lodging, or other 1004861 (Aug. 19, 1994); DeBraska v. accrued compensatory leave. That City of Milwaukee, 131 F. Supp. 2d facilities (if customarily furnished) section states: under Section 3(m) of the Act (see 29 1032, 1034–35 (E.D. Wis. 2000) CFR 531.3). Section 3(m) of the Act An employee of a public agency which is (deferring to the Department’s prescribes certain limitations and a State, political subdivision of a State, or an interpretation of its regulations as interstate governmental agency—(A) who has requiring that the specific compensatory safeguards that control the payment of accrued compensatory time off authorized to wages in other than cash or its time requested must be granted absent be provided under paragraph (1), and (B) undue disruption). As discussed in the equivalent. Special recordkeeping who has requested the use of such requirements must also be met as compensatory time, shall be permitted by the NPRM, however, the Ninth Circuit in provided in 29 CFR part 516 (see employee’s employer to use such time within Mortensen v. County of Sacramento, 368 § 516.27), the provisions of which also a reasonable period after making the request F.3d 1082 (9th Cir. 2004), and the Fifth were not modified by the revisions if the use of the compensatory time does not Circuit in Houston Police Officers Union proposed in the NPRM. unduly disrupt the operations of the public v. City of Houston, 330 F.3d 298 (5th After careful consideration of the agency. Cir.), cert. denied, 540 U.S. 879 (2003), comments, the Department has 29 U.S.C. 207(o)(5)(A), (B). both declined to defer to the determined that further study is In 1987, after notice and comment, Department’s regulations because they warranted to assess the extent to which the Department issued final regulations found the plain language of section dietary or religious restrictions prevent implementing section 7(o) (29 CFR 7(o)(5)(B) to require only that an employees from consuming employer- 553.20–.28). Section 553.25 of the employee be allowed to use provided meals and whether adequate regulations implements section 7(o)(5)’s compensatory time within a ‘‘reasonable time is allowed for the employee to eat. requirements regarding the use of period’’ of the date requested for such The Department therefore is not compensatory time off. Section leave unless doing so would ‘‘unduly adopting the proposal, but may provide 553.25(c) provides: disrupt’’ the agency. Cf., Aiken v. City of guidance on this issue in the future. (1) Whether a request to use compensatory Memphis, 190 F.3d 753 (6th Cir. 1999), cert. denied, 528 U.S. 1157 (2000) 10. Section 7(o) Compensatory Time Off time has been granted within a ‘‘reasonable period’’ will be determined by considering (finding no FLSA violation where the Section 7 of the FLSA requires that a the customary work practices within the city and the plaintiffs-police officers covered employee receive compensation agency based on the facts and circumstances had agreed that ‘‘the reasonable period for hours worked in excess of 40 in a in each case. Such practices include, but are for requesting the use of banked workweek at a rate not less than one and not limited to (a) the normal schedule of compensatory time begins thirty days one-half times the regular rate of pay at work, (b) anticipated peak workloads based prior to the date in question and ends which the employee is employed. 29 on past experience, (c) emergency when the number of officers requesting U.S.C. 207(a). In 1985, subsequent to the requirements for staff and services, and (d) the availability of qualified substitute staff. the use of compensatory time on the U.S. Supreme Court’s decision in Garcia (2) The use of compensatory time in lieu given date would bring the precinct’s v. San Antonio Metropolitan Transit of cash payment for overtime must be staffing levels to the minimum level Authority, 469 U.S. 528 (1985), which pursuant to some form of agreement or necessary for efficient operation’’). held that the FLSA may be understanding between the employers and Based on these appellate decisions, constitutionally applied to State and the employee (or the representative of the the NPRM proposed to revise section

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553.25(c) to add a sentence that states Employees (AFGE), International Union the current regulation, an amicus brief that section 7(o)(5)(B) does not require of Police Associations (I.U.P.A.), and an opinion letter, and it disputed a public agency to allow the use of International Association of Fire that there was unanimity even among compensatory time on the day Fighters, and AFL–CIO. AFSCME urged the appellate courts compelling a specifically requested, but only requires the Department to withdraw the change. It cited the decision in Beck v. that the agency permit the use of the proposal, stating that allowing an City of Cleveland, 390 F.3d 912 (6th Cir. time within a reasonable period after the employer to deny an employee’s 2004), which it stated found ‘‘Aiken to employee makes the request unless the requested day off without demonstrating have been effectively overruled by the use would unduly disrupt the agency’s that it creates an undue hardship would Supreme Court’s decision in operations. Additionally, the phrase ‘‘make a drastic change to the scope of Christensen,’’ and it emphasized that ‘‘within a reasonable period after the the statute.’’ AFSCME stated that there neither the Fifth Circuit (in City of request’’ was added to the final sentence is no uniformity in the courts mandating Houston) nor the Ninth Circuit (in of proposed § 553.25(d) and the phrase the change, stating that a number of Mortensen) considered the Supreme ‘‘during the time requested’’ was district court decisions have upheld the Court’s decision in reaching their replaced with ‘‘during the time off’’ to Department’s current regulation. conclusions. The AFL–CIO emphasized clarify the employer’s obligation. AFSCME also asserted that the Supreme that the current regulation is consistent Many commenters addressed the Court’s decision in Christensen v. Harris with the legislative history, citing compensatory time off issue. NPELRA County, 529 U.S. 576, 583–85 (2000), Senate Report 99–159, which stated that stated that it ‘‘wholeheartedly supports provides additional support for the when an employer receives a comp time the proposed regulatory change.’’ It conclusion that an employer cannot request, ‘‘that request should be honored commented that its member agencies deny the specific date requested for unless to do so would be unduly have been so concerned about litigation reasons other than those set forth in disruptive.’’ It argued that the proposal regarding this issue that they have section 7(o)(5), because the Court stated ‘‘would render meaningless the ‘unduly eliminated all FLSA compensatory time that the section ‘‘imposes a restriction disrupt’ language’’ because it would off, but that the proposed rules will upon an employer’s efforts to prohibit likely never come into play if an ensure consistency throughout the the use of compensatory time when employer can simply substitute a date country, thereby ‘‘reducing any employees request to do so.’’ Therefore, that it wants for the date the employee incentives for public employers to AFSCME concluded ‘‘that, at best, there requested. eliminate FLSA compensatory time off, are conflicting interpretations of the The I.U.P.A. also referred to the which benefits both employers and language of the statute and the legislative history (House Report 99–331 employees.’’ NPELRA suggested that the implementing regulation.’’ Id. Because (1985)), which states that compensatory Department revise § 553.25(d) to ‘‘state employees request specific dates for time off ‘‘was intended to give ‘freedom that the term ‘unduly disrupt’ may be ‘‘milestones such as children’s and flexibility’ to public employees and defined in the collective bargaining birthdays, family and friends’ weddings, ‘additional options’ to employers.’’ The process in the same manner as the term funerals, scheduled vacations and other union therefore stated that the ’’ ‘‘ ’’ ‘reasonable period’ may be defined, date specific activities,’’ it would harm reasonable period is better read as stating that this would allow the parties employees to allow employers to deny referring to the time between the date to address circumstances unique to their the date requested absent undue the employees submit their requests and the dates requested for time off, so that particular organization and would result disruption. Thus, absent consistent in less litigation. Finally, NPELRA ‘‘requests cannot provide such short court interpretations, it stated it would commented that having to pay an notice that the employer would be be unwise public policy to change the employee overtime to fill in for an scrambling to find a replacement.’’ The regulation. See also AFGE (the current employee who is off creates an undue I.U.P.A. commented that the rationale regulations ‘‘strike the proper balance disruption and defeats the purpose of the Department offered for the change— between the public sector employer’s compensatory time off, as the Mortensen that the courts uniformly interpreted the interest in assuring that its mission is court found. Therefore, it suggested that statutory language as unambiguous— carried out and the employee’s interest the regulations specify that this is a does not hold up because several in being able to use compensatory time factor an employer can consider in district courts have held that the statute in a meaningful manner’’); I.U.P.A. (the deciding whether to grant time off. is ambiguous and agreed with the The IPMA–HR, IMLA, and NLC also current rule appropriately balances Department’s current regulation. It commended the Department for the agencies’ needs and the interests of stated that if the Department’s rationale ‘‘ proposed change, stating that it would employees, while the proposal would is correct, then the regulations are be ‘‘of great assistance to localities that upset that balance, placing all of the unnecessary; it is only if the must have adequate staff in order to burden on the employees, and allowing Department’s rationale is incorrect, and provide services to citizens.’’ They also the employer to reap all the benefits’’); a court agrees that the statute is urged the Department to provide that and James D. Sewell (‘‘When an officer ambiguous, that the regulations will employers are not required to grant or fireman needs to be off for a have an impact because the court will compensatory time off if it would mean particular date, they need to be off that defer to the regulations for assistance in that the employer would incur overtime day, not a day the employer decides for interpreting the statute. Therefore, the expenses. Littler Mendelson, P.C., and them.’’). I.U.P.A. stated that the proposal would SHRM also stated that they supported The AFL–CIO made similar place ‘‘responsibility squarely on the the proposed change, which comments, stating that section 7(o)(5) is shoulders of the Department’’ because a appropriately conformed the regulation ambiguous and is best read as requiring court that found the statute ambiguous to the cited appellate court decisions. an employer to act on an employee’s would defer to the regulation in denying Commenters representing employees request within a reasonable period after police officers their chosen days off. Id. strongly opposed the proposal. See the request is made and to approve the Comments by Members of United American Federation of State, County specific day requested absent undue States Congress also opposed the and Municipal Employees (AFSCME), disruption. It noted that the Department Department’s proposal, stating that it American Federation of Government had agreed with this interpretation in ‘‘will undermine the ability of nearly 20

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million public employees to use their Mortensen, while the plaintiffs’ view the recent appellate decision, and in accrued compensatory time off.’’ They was supported by Beck v. Cleveland, consideration of the extensive stated that the current rule is correct 390 F.3d 912 (6th Cir. 2004), and section comments received on this section, the and consistent with the legislative 553.25 of the Department’s regulations. Department has decided not to finalize history, and that the proposal upsets the The court rejected the Fifth and Ninth the proposed revision to section careful balance that Congress struck. Circuit’s plain language reading of 553.25(c) and (d) and to leave the They also noted that only three of 13 7(o)(5), stating that section 7(o)(5) ‘‘is current regulation unchanged consistent courts of appeals have addressed this anything but clear.’’ with its longstanding position that issue, and ‘‘just two of them have Words such as ‘‘reasonable’’ and ‘‘undue’’ employees are entitled to use expressed disapproval of the are open-ended. They need elaboration, and compensatory time on the date Department’s longstanding view.’’ the relation between these requirements requested absent undue disruption to Moreover, they noted that a number of needs explication. Here the agency has added the agency. In response to comments district courts have upheld the current vital details and its work prevails * * * concerning whether the payment of rule so the ‘‘issue is unsettled in the unless it represents an implausible overtime is a consideration in federal courts.’’ resolution. determining whether the use of The IAFF stated that the ‘‘proposal is 560 F.3d at 646. The court found that compensatory time off is unduly nonsensical in that it essentially the Department’s interpretation of the disruptive, the Department does not eviscerates the purposes for which requirements of section (7)(o)(5) in its believe that any regulatory change is comp time usage is requested.’’ The regulations, which ‘‘makes warranted. The Department maintains IAFF noted that under the proposed rule compensatory leave more attractive to its longstanding position that the fact an employer would have authority to workers and hence a more adequate that overtime may be required of one deny a comp time request for no reason substitute for money,’’ was reasonable employee to permit another employee to whatsoever, so long as some alternative and entitled to deference. Id. The court use compensatory time off is not a date within a reasonable period were found that section 553.25(d) requires the sufficient reason for the employer to offered. It also stated that, in many fire employer to grant leave on the date and claim that the compensatory time off departments, employees request time off time requested unless doing so would request is unduly disruptive. See Wage weeks or months in advance, which aids create an undue disruption (in which and Hour Opinion Letter 1994 WL departments in maintaining adequate case the employer would be able to 1004861 (Aug. 19, 1994); 52 FR 2012, staffing by allowing them time to fill ‘‘ defer the requested leave for a 2017 (Jan. 16, 1987) ( The Department vacancies. However, the IAFF stated reasonable time). Id. at 647. recognizes that situations may arise in that the proposal leads to an illogical which overtime may be required of one The Seventh Circuit’s Heitmann conclusion, because the more lead time employee to permit another employee to decision, which finds support in the an employee provides, the less likely it use compensatory time off. However, Sixth Circuit’s decision in Beck, is that the employee will receive such a situation, in and of itself, would indicates that the appellate courts are statutory protection of the right to use not be sufficient for an employer to the requested time off. The IAFF not as uniform in their reading of claim that it is unduly disruptive.’’). concluded that, as the Department section 7(o)(5) as the Department acknowledged in the NPRM, some fire understood them to be at the time of the 11. Fluctuating Workweek Method of fighters will simply not accept NPRM. The Department now views the Computing Overtime Under 29 CFR compensatory time in lieu of cash if the courts of appeals as being split on the 778.114 proposal is adopted. ‘‘Such an outcome proper interpretation of 7(o)(5), with the The NPRM proposed to modify the would depart from the plain Sixth and Seventh Circuits requiring Department’s regulation at 29 CFR Congressional intent in enacting this agencies to grant the specific leave 778.114 addressing the fluctuating statutory provision. It also would likely requested absent undue disruption, and workweek method of computing impose a substantial financial burden the Fifth and Ninth Circuits requiring overtime compensation for salaried on local government departments that agencies to grant leave within a nonexempt employees to permit the rely on compensatory time, rather than reasonable time of the leave requested payment of non-overtime bonuses and cash overtime * * *’’ unless doing so would create an undue incentives without invalidating the Since the publication of the NPRM, disruption. The Department believes guaranteed salary criterion required for another appellate court has addressed that the better reading of section 7(o)(5) the half-time overtime pay computation. the issue of whether an employee’s is that it requires employers to grant The current regulation provides that an specific request to use compensatory compensatory time on the specific date employer may use the fluctuating time must be granted unless it unduly requested unless doing so would unduly workweek method for computing half- disrupts the agency’s operation. In disrupt the agency. The statutory time overtime compensation if an Heitmann v. City of Chicago, 560 F.3d reading set forth in Houston and employee works fluctuating hours from 642 (7th Cir. 2009), the plaintiffs-police Mortensen, which requires that the week to week and receives, pursuant to officers argued that the need to consider employer grant compensatory time an understanding with the employer, a whether a request for leave created an within a reasonable period of the date fixed salary as straight-time ‘‘undue disruption’’ presupposed a requested, essentially nullifies the compensation ‘‘(apart from overtime particular time for the leave and that ‘‘unduly disrupt’’ provision of 7(o)(5). premiums)’’ for whatever hours the employees were therefore entitled to See Beck v. City of Cleveland, 390 F.3d employee is called upon to work in a leave on the date and time of their 912, 925 (6th Cir. 2005) (‘‘to grant the workweek, whether few or many. In choosing unless it would result in an City the unlimited discretion to deny such cases, an employer satisfies the undue disruption to the city. For its compensatory leave requests relieves overtime pay requirement of section 7(a) part, the city argued that it was required the city of establishing the undue of the FLSA if it compensates the only to offer leave within a ‘‘reasonable disruption requirement imposed by employee, in addition to the salary time’’ of the employee’s request for Congress’’); DeBraska v. City of amount, at least one-half of the regular leave. The court noted that the city’s Milwaukee, 131 F. Supp. 2d 1032, 1037 rate of pay for the hours worked in position was supported by Houston and (E.D. Wis. 2000). Accordingly, in light of excess of 40 hours in each workweek.

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Because the employee’s hours of work to establish in the example the concept disagrees with this comment and notes fluctuate from week to week, the regular that the employee’s regular rate will not that the application of section 778.114 rate must be determined separately each fall below the minimum wage. We have, is properly limited to situations where week based on the number of hours therefore, retained the concept but have the employee’s hours fluctuate. See actually worked each week. made minor wording changes to clarify Flood v. New Hanover County, 125 F.3d Paying employees bonus or premium the example. 249, 253 (4th Cir. 1997); FOH section payments for certain activities such as Beyond these two minor editorial 32b04b. working undesirable hours is a common comments, the comments were sharply Comments expressing strong and beneficial practice for employees. divided on the substance of the opposition to the proposed revisions The NPRM proposed that bona fide proposed revisions to the fluctuating were mostly based on two primary bonus or premium payments would not workweek provisions. In general, criticisms. First, that receipt of premium invalidate the fluctuating workweek commenters representing employers and bonus payments is inconsistent method of compensation, but that such favored the revisions while commenters with payment of a fixed salary. See payments (as well as ‘‘overtime representing employees strongly NELP, SEIU, NELA, AFL–CIO, Members premiums’’) must be included in the opposed the revisions. of United States Congress, and North SHRM noted that it is common calculation of the regular rate unless Carolina Justice Center. Second, that the practice to pay a nonexempt salaried they are excluded by FLSA sections proposed revisions will encourage employee a bonus or premium as an 7(e)(1)-(8). The proposal also added an employers to schedule additional incentive for various reasons, such as example to § 778.114(b) to illustrate overtime for employees paid under the these principles where an employer working less desirable hours. SHRM fluctuating workweek method or pays an employee a nightshift commented that other payment otherwise disadvantage workers by differential in addition to a fixed salary. methods, such as hourly, piece rates, The Department’s view, at that time, day rates, and job rates, contemplate expanding its use to a larger portion of was that the proposed modification that an employee may receive a bonus the workforce. See NELP, North clarified the rule and was consistent or other premium payments in addition Carolina Justice Center, NELA, AFL– with the Supreme Court’s decision in to normal pay and asserted that it was CIO, and Members of United States Overnight Transportation Co. v. Missel, logical and consistent to permit such Congress. A number of these comments 316 U.S. 572 (1942), on which the payments under the fluctuating opposing the revisions questioned the existing regulation is patterned. See 73 workweek method of compensation. Department’s authority for making the FR 43662 (Jul. 28, 2008). The The Chamber of Commerce also revisions and asserted they would Department’s proposed modification favored the revisions but sought further administratively overturn uniform, well- was intended to allow employers to pay clarifications as to when and how settled case law without justification additional bona fide premium bonuses should be included in regular and urged the Department to withdraw payments. rate calculations, particularly when them. Commenters stating that premium The NPRM also proposed to increase bonuses (1) cover more than one and bonus payments are inconsistent the numerical values in the examples of workweek, (2) are not paid in the same with the concept of a fixed salary overtime computations in § 778.114(b) workweek when the work was generally asserted that the proposed so the rates of pay would be no less than performed to which the bonus applies, revisions are inconsistent with the the current minimum wage. Frank Dean and (3) are not allocable among Supreme Court’s decision in Missell, in commented that the term workweeks in proportion to the amount which the Court approved the use of the ‘‘approximately’’ in two places carried of bonus actually earned each week. fluctuating workweek method requiring over from the current regulatory Littler Mendelson, P.C., also supported payment of only the additional half-time language is potentially misleading and the proposed revisions, but suggested premium for hours worked over 40 per confusing and should be eliminated to further revisions to add cross-references week for an employee paid a fixed make it clear that the calculation of to other sections in part 778 regarding weekly wage who worked weekly hours statutorily mandated overtime is how to include bonuses in the regular that fluctuated. Based on the Court’s exacting. Mr. Dean recommended rate to clarify that all the rules regarding ruling and the language of current changing one of the weekly hour totals bonuses for nonexempt employees § 778.114(a), which provides that ‘‘[a]n from 44 to 37.5 so that there would be apply equally whether the nonexempt employee employed on a salary basis an exact regular rate calculation in each employee is paid by the hour, on a may have hours of work which fluctuate instance, thereby eliminating the need salary basis or under the fluctuating from week to week and the salary may to use ‘‘approximately.’’ We agree with workweek method. Because we believe be paid him pursuant to an this analysis and have incorporated his the principles for including bonuses in understanding with his employer that suggested revision into the final rule. the regular rate discussed in other he will receive such fixed amount as Wage and Hour Consulting Services sections of the regulations are clear, we straight time pay for whatever hours he commented that the statement limiting do not find that further clarifications or is called upon to work in a workweek, the weekly hours worked in the additional cross-references are whether few or many,’’ these example to ‘‘never in excess of 50 hours necessary in this section. commenters asserted that employees in a workweek’’ in proposed Fisher & Phillips LLP noted that paid under the fluctuating workweek § 778.114(b)(1) was confusing and part 778 is an interpretative rule and method must receive fixed weekly pay redundant and should be deleted as similarly noted that § 778.114 ‘‘is simply that does not vary. The proposal departs unnecessary because it is clearly one in a series of examples of how the from this fundamental concept, the explained elsewhere in the section that regular-rate principles of Section commenters asserted. These the wage rate of an employee paid under 778.109 apply in different situations.’’ commenters also took issue with the the fluctuating workweek method The commenter recommended revisions statement in the NPRM that the current cannot fall below the minimum wage. to clarify that the half time overtime regulation has presented challenges in This phrase was carried over from the calculation in section 778.114 applies the courts, asserting that courts applying current regulation and we believe that it regardless of whether the employee’s the fluctuating workweek method of does not cause confusion and is needed hours fluctuate. The Department payment have uniformly concluded that

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paying additional ‘‘non-overtime’’ fluctuating workweek method is the § 778.114(b)(2) suggesting methods for premiums violates section 779.114. See mutual understanding between the making supplemental nightshift NELA (citing O’Brien v. Town of employer and the employee regarding premium payments as part of the Agawam, 350 F.3d 279 (1st Cir. 2003); payment of a fixed amount as straight fluctuating workweek methodology for Dooley v. Liberty Mutual Ins. Co., 369 F. time pay for whatever hours are worked computing half-time overtime pay have Supp. 2d 81 (D. Mass. 2005); Ayers v. each workweek, regardless of their been deleted from the final rule. SGS Control Services, Inc., 2007 WL number. While the example provided in Other Revisions 646326 (S.D.N.Y. 2007)), SEIU, AFL– the NPRM of nightshift premiums CIO, NELP, Members of United States resulted in a relatively modest change in The current recordkeeping regulations Congress, and North Carolina Justice the employee’s straight time pay, the on tipped employees at 29 CFR 516.28 Center. Department now believes that the include an outdated parenthetical Several commenters also noted that proposed regulation would have been reference that suggests a limit ‘‘(not in the proposal would permit employers to inconsistent with the requirement of a excess of 40 percent of the applicable reduce employees’ fixed weekly salaries fixed salary payment set forth by the statutory minimum wage)’’ as the and shift the bulk of the employees’ Supreme Court in Overnight Motor maximum amount of tip credit an wages to bonus and premium pay. See Transport v. Missel. Moreover, on closer employer may claim under the NELP, NELA, SEIU, and North Carolina examination, the Department is FLSA. 29 CFR 516.28(a)(3). This Justice Center. These commenters persuaded that the courts have not been outdated reference reflected the former argued that this would harm employees unduly challenged in applying the provisions of section 3(m) of the FLSA because it would lead to significant current regulation to additional bonus as amended by the 1977 FLSA variations in weekly wages based on the and premium payments. See O’Brien v. Amendments, which has since been hours worked. They stated that such Town of Agawam, 350 F.3d 279 (1st Cir. overtaken by subsequent statutory variations in pay are inconsistent with 2003); Adeva v. Intertek USA, 2010 WL amendments passed in 1989 and 1996. the purpose of the fluctuating 97991 (D.N.J. 2010); Dooley v. Liberty See Public Law 95–151, § 3(b)(2), 91 workweek. They further objected to the Mutual Ins. Co., 369 F. Supp. 2d 81 (D. Stat. 1249 (Nov. 1, 1977); Public Law proposal because it would expand the Mass. 2005); Ayers v. SGS Control 101–157, § 5, 103 Stat. 941 (Nov. 17, use of the fluctuating workweek method Services, Inc., 2007 WL 646326 1989); Public Law 104–188, § 2105(b), to industries in which bonus and (S.D.N.Y. 2007). 110 Stat. 1929 (Aug. 20, 1996). The premium payments are common. See Department inadvertently overlooked NELA, Members of United States Finally, while the proper use of the updating this reference in part 516 Congress, SEIU, and North Carolina fluctuating workweek method of pay when updating the other tip credit Justice Center. Comments submitted by results in an employee being paid time references in the NPRM. Because the Members of the United States Congress and one-half of the employee’s regular regulatory reference has been urged that instead of modifying this rate for overtime hours, the Department superseded by subsequent statutory section to expand its use, the is cognizant that this method of pay enactments, the Department is updating Department should consider narrowing results in a regular rate that diminishes this section of the recordkeeping the scope of the section to prevent as the workweek increases, which may regulation in this final rule to conform employers from abusing this method to create an incentive to require employees it to current law and, because of the lower workers’ pay. to work long hours. The Department technical nature of the change, is doing The Department has carefully does not believe that it would be so without prior notice and opportunity considered all of the comments appropriate to expand the use of this for public comment. The Department submitted on this section. While the method of computing overtime pay hereby finds, pursuant to the Department continues to believe that the beyond the scope of the current Administrative Procedure Act, that prior payment of bonus and premium regulation. Accordingly, the final rule notice and opportunity for public payments can be beneficial for has been modified from the proposal to comment on this ministerial change that employees in many other contexts, we restore the current rule requiring is required by statutory amendment are have concluded that unless such payment of the fixed salary amount as impracticable, unnecessary, or contrary payments are overtime premiums, they the straight time pay for whatever hours to the public interest. See 5 U.S.C. are incompatible with the fluctuating are worked in the workweek, that a clear 553(b)(3)(B). workweek method of computing mutual understanding of the parties The current interpretative regulation overtime under section 778.114. As must exist that the fixed salary is on ‘‘Hours Worked,’’ at 29 CFR 785.7 several commenters noted, the proposed compensation (apart from overtime (‘‘Judicial construction’’), cites regulation could have had the premiums) for the hours worked each incorrectly to a holding of the U.S. unintended effect of permitting workweek whatever their number, that Supreme Court in Tennessee Coal, Iron employers to pay a greatly reduced fixed the fixed salary amount must be & Railroad Co. v. Muscoda Local salary and shift a large portion of sufficient to provide compensation at a No. 123, 321 U.S. 590, 598 (1944). The employees’ compensation into bonus rate not less than the minimum wage, typographical error in the phrase and premium payments, potentially and that the employee must receive ‘‘primarily for the benefit of the resulting in wide disparities in extra compensation in addition to the employer of his business’’ is corrected employees’ weekly pay depending on fixed salary for all overtime hours by replacing the incorrect ‘‘of’’ with the particular hours worked. It is just worked at a rate not less than one-half ‘‘and.’’ Because this change is required this type of wide disparity in weekly the regular rate of pay. Editorial to conform the text to the cited holding, pay that the fluctuating workweek revisions have been included in the text the Department is making this method was intended to avoid by of the final rule to delete gender-specific correction without prior notice and requiring the payment of a fixed amount references and to update the opportunity for public comment. The as straight time pay for all hours in the computation examples to provide wage Department hereby finds, pursuant to workweek, whether few or many. The rates above the minimum wage and the the Administrative Procedure Act, that basis for allowing the half-time overtime exact calculation of the regular rate. The prior notice and opportunity for public premium computation under the proposed examples in the NPRM at comment on this ministerial change are

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impracticable, unnecessary, or contrary statutory changes to the FLSA are commuting at the beginning and end of to the public interest. See 5 U.S.C. typically greatest in the short run and the workday to be considered 553(b)(3)(B). diminish over time. This is due to labor noncompensable, the use of the vehicle markets determining the most efficient must be ‘‘conducted under an agreement IV. Paperwork Reduction Act way to adjust to the new requirements, between the employer and the employee This rule does not impose new and because the Department believes or the employee’s representative.’’ The information collection requirements for many of the changes mandated by Department believes that since 1996 the purposes of the Paperwork Reduction various revisions to the FLSA are labor market has adjusted to this Act of 1995, 44 U.S.C. 3501 et seq. reflective of the natural evolution of the statutory change and that it would be V. Executive Orders 12866 and 13563; labor market and would have become very difficult, if not impossible, to Small Business Regulatory Enforcement more common even in the absence of estimate the impact of this amendment. Fairness Act; Regulatory Flexibility regulatory changes. For example, as It is likely that as part of their overall nominal wages rise overtime, the compensation package, some employers This final rule is not economically marginal impact of a fixed minimum and their employees have agreed to significant within the meaning of wage provision decreases, since it is less make the travel time compensable while Executive Order 12866, or a ‘‘major rule’’ binding on the market. Therefore, the others have agreed to make it under the Unfunded Mandates Reform impacts resulting from the promulgation noncompensable. In addition, since this Act or Section 801 of the Small Business of the final regulations are not likely to provision simply clarifies that Regulatory Enforcement Fairness Act. be measurable. In fact, the Department compensability should be subject to an As discussed previously in this anticipates that this final rule will agreement, but does not otherwise preamble, over the years, Congress has simply enhance the Department’s restrict the type of agreement employers amended the FLSA to refine or to add enforcement of, and the public’s and employees may reach, the to exemptions and to clarify the understanding of, compliance Department believes this provision by minimum wage and overtime pay obligations under the FLSA by replacing its nature does not impose a significant requirements. However, in many cases, outdated regulations with updated burden on the public. Therefore, the the Department of Labor did not update provisions that reflect current law. Department concludes that the final rule the FLSA regulations to reflect these will have no measurable effect on the 1996 and 2007 Amendments to the statutory changes. The Department public except to possibly clear up some FLSA Minimum Wage believes that the existing outdated confusion. regulatory provisions may cause The current FLSA regulations In addition, section 2105 of the SBJPA confusion within the regulated reference the minimum wage in several amended the FLSA effective August 20, community resulting in inadvertent places, some referring to the 1981 1996, by adding section 6(g), 29 U.S.C. violations and the costs of corrective minimum wage of $3.35 and others 206(g), which provides that ‘‘[a]ny compliance measures to remedy them. referring to the 1991 minimum wage of employer may pay any employee The Department has determined that $4.25. To eliminate the current [who has not attained the age of 20] of the final rule changes will not result in inconsistencies between the FLSA such employer, during the first 90 any additional compliance costs for regulations and the statute, the consecutive calendar days after such regulated entities because the current Department revised the regulations to employee is initially employed by such compliance obligations derive from refer to the statutory minimum wage employer, a wage which is not less than current law and not the outdated provision rather than a specific $4.25 an hour.’’ The Department regulatory provisions that have been minimum wage. Since the final believes that the labor market has also superseded years ago. regulations do not include any reference adjusted to this change during the The Department is aware that this to a specific minimum wage, the period since the enactment of the interpretation appears to be inconsistent Department believes they do not impose SBJPA. Although youths would with OMB Circular A–4’s guidance on the burden of increasing the minimum obviously want to receive the normal the use of analysis baselines, which wage from the levels specified in the minimum wage rather than the youth states: ‘‘In some cases, substantial current regulations. That burden was wage, some youths will decide to accept portions of a rule may simply restate imposed by the statutory changes and is the lower youth wage in order to gain statutory requirements that would be not derived from the FLSA regulations. experience in the labor market. self-implementing, even in the absence Thus, the Department concludes that Similarly, although some employers of the regulatory action. In these cases, the only incremental effect of this final may want to pay the lower youth wage, you should use a pre-statute baseline’’ to rule on the public from these changes is some may find compliance with the conduct the regulatory impact analysis. possibly clearing up some confusion. added requirements associated with the However, as the discussion below This differentiates the minimum wage youth wage not to be worth the savings indicates, the Department believes the provisions from many other in wages. Thus, the Department use of a pre-statute baseline would be rulemakings in which the Department is concludes that the final rule will have extremely difficult for statutes enacted a given little statutory discretion, but no measurable effect on the public decade or more in the past. nonetheless is still required to update except to possibly clear up some Fundamental changes in the economy the CFR. confusion. and labor market (e.g., the introduction of technology, changes in the size and Small Business Job Protection Act of Agricultural Workers on Water Storage/ composition of the labor force, changes 1996 Irrigation Projects in the economy that impact the demand Sections 2101 through 2103 of Title II Public Law 105–78, 111 Stat. 1467 for labor, etc.) would make it difficult, of SBJPA, entitled the ‘‘Employee (Nov. 13, 1997), amended section if not impossible, to separate those Commuting Flexibility Act of 1996,’’ 13(b)(12) of the FLSA, 29 U.S.C. changes from changes that resulted from amended section 4(a) of the Portal Act, 213(b)(12), by extending the exemption enactment of the statute. 29 U.S.C. 254(a), to state that for travel from overtime pay requirements Moreover, the Department believes time involving the employee’s use of applicable to workers on water storage the economic impacts due to the employer-provided vehicles for and irrigation projects where at least 90

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percent of the water is used for fewer than five employees in fire primarily engaged in selling boats are agricultural purposes, rather than where protection activities pursuant to not required to be paid time and one- the water is used exclusively for § 13(b)(20) (29 U.S.C. 213(b)(20)). The half for the hours worked in excess of agricultural purposes. The Department Department believes that these 40 in a work week, their overall believes that the labor market has also provisions apply to a relatively small compensation will be determined by adjusted to this change during the proportion of the labor market, and that market forces. In some cases, employers period since the enactment of the the market has adjusted to this change and their employees may choose some amendment. Although agricultural during the period since the enactment of form of premium overtime pay (even workers and workers employed on the amendment. Thus, the Department though it is not mandated by the FLSA) water storage/irrigation projects listed in concludes that the final regulatory while others may choose a higher salary the exemption are not required to be changes will have no measurable effect and commissions with no additional paid time and one-half for the hours on the public except to possibly clear up compensation for the hours worked in worked in excess of 40 in a work week, some confusion by replacing outdated excess of 40 in a week. their overall compensation will be regulations with updated provisions to Similarly, the Department believes determined by market forces. In some reflect current law. that the market has adjusted to no cases, employers and their employees exemptions for partsmen and mechanics Stock Options Excluded From the will choose some form of premium servicing trailers or aircraft. Although Computation of the Regular Rate overtime pay (even though it is not there may have been some short run mandated by the FLSA) while others The Worker Economic Opportunity effects related to the statutory change, in may choose a higher salary with no Act enacted by Congress on May 18, the years since enactment of the statute, additional compensation for the hours 2000, amended §§ 7(e) and 7(h) of the employers and their employees have worked in excess of 40 in a week. In FLSA. 29 U.S.C. 207(e), (h). In § 7(e), a adjusted to the overtime requirement. addition, this provision applies to a new subsection (8) adds ‘‘[a]ny value or Thus, the Department concludes that relatively small part of the overall U.S. income derived from employer- the final regulatory changes will have labor force; thus, the Department provided grants or rights provided no measurable effect on the public believes any possible impacts due to pursuant to a stock option, stock except to possibly clear up some this exemption would likely not be appreciation right, or bona fide confusion. substantial. Therefore, the Department employee stock purchase program’’ On November 1, 1977, Congress concludes that the final rule will have meeting particular criteria to the types amended section 3(t) of the FLSA, 29 no measurable effect on the public of remuneration that are excluded from U.S.C. 203(t). Public Law 95–151, § 3(a), except to possibly clear up some the computation of the regular rate. In 91 Stat. 1245. Section 3(t) of the FLSA confusion. § 7(h), the amendment clarifies that the defines the phrase ‘‘tipped employee.’’ amounts excluded under § 7(e) may not The amendment changed the conditions Certain Volunteers at Private Non-Profit be counted toward the employer’s for taking the tip credit when making Food Banks minimum wage requirement under wage payments to qualifying tipped Section 1 of the Amy Somers section 6, and that extra compensation employees under the FLSA. Prior to the Volunteers at Food Banks Act, Public excluded pursuant to the new 1977 amendment, the definition Law 105–221, 112 Stat. 1248 (Aug. 7, subsection (8) may not be counted encompassed ‘‘any employee engaged in 1998), amended section 3(e) of the toward overtime pay under § 7. The an occupation in which he customarily FLSA, 29 U.S.C. 203(e), by adding Department believes that the labor and regularly receives more than $20 a section (5) to provide that the term markets have adjusted to this statute, month in tips.’’ The 1977 amendment ‘‘employee’’ does not include which provides additional alternatives raised the threshold in section 3(t) to individuals volunteering solely for for employee compensation, but does $30 a month in tips. Although the humanitarian purposes at private non- not otherwise limit or mandate the mandatory paid wage ($2.13) for tipped profit food banks and who receive overall levels of compensation owed to employees is below the full minimum groceries from those food banks. any category of worker. The final wage, these workers must still receive 29 U.S.C. 203(e)(5). The Department regulatory changes merely help to hourly compensation (cash wages plus believes that the labor market has also correct any confusion in this area. tips) at least equal to the minimum adjusted to this change during the wage. Moreover, regardless of the Fair Labor Standards Act Amendments period since the enactment of the minimum wage, if the hourly of 1974 and 1977 amendment. The Department also compensation is too low employers will believes this regulatory change is not On April 7, 1974, Congress enacted an have trouble finding a sufficient number likely to cause an impact we would amendment to section 13(b)(10) of the of workers. The Department believes consider significant, since its FLSA, 29 U.S.C. 213(b)(10). Public Law that the labor market has also adjusted application is limited and it simply 93–259, 88 Stat. 55 (1974). This to this change during the period since clarifies that certain individuals may be amendment added an overtime the enactment of the amendment and considered volunteers. exemption for salespersons primarily that the regulatory changes will have no engaged in selling boats (in addition to measurable economic effect on the Employees Engaged in Fire Protection the pre-existing exemption for sellers of public except to possibly clear up some Activities trailers or aircraft). This amendment confusion. In 1999, Congress amended section 3 also eliminated the overtime exemption of the FLSA, 29 U.S.C. 203, by adding for partsmen and mechanics servicing Meal Credit Under Section 3(m) section (y) to define ‘‘an employee in fire trailers or aircraft. The Department The Department proposed to amend protection activities.’’ This change in believes that these provisions apply to § 531.30 to reflect that, with the definition impacts fire protection a relatively small proportion of the labor exception of meals, the employee’s employees who may be covered by the market, and that the labor market has acceptance of a facility for which the partial overtime exemption allowed by also adjusted to this change during the employer seeks to take a 3(m) credit § 7(k) (29 U.S.C. 207(k)) or the overtime long period since the enactment of the must be voluntary and uncoerced. The exemption for public agencies with amendment. Although salespersons Department determined that the

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proposed change would have no requested unless it would unduly have been obligated to comply with the measurable economic impact. After disrupt the agency’s operations is underlying statutory provisions for consideration of the comments received, reasonable. The Department has many years. With this action, DOL is the Department has determined that therefore reexamined its proposal based merely bringing up-to-date regulatory further study of this issue is warranted, on all the appellate decisions and the provisions that were superseded years and therefore is not adopting the public comments and has decided not to ago. proposal. Because the Department is not finalize the proposed revision to section 2. Regulatory Flexibility Act implementing this proposal, there is no 553.25(c) and (d) and to leave the change to the status quo. As a result, the current regulation unchanged consistent Furthermore, because the final rule Department does not believe that there with its longstanding position that will not impose any measurable costs on will be any measurable economic employees are entitled to use employers, both large and small entities, impact on the public. compensatory time on the date the Department has determined that it requested absent undue disruption to would not have a significant economic Section 7(o) Compensatory Time Off the agency. Because the proposed impact on a substantial number of small In 1987, the Department issued final changes will not be implemented, the entities within the meaning of the regulations implementing a detailed Department does not believe that there Regulatory Flexibility Act (5 U.S.C. 601 scheme for the accrual and use of will be any measurable economic et seq.). The Department certified to the compensatory time off under Section impact on the public. Chief Counsel for Advocacy to this 7(o). 29 U.S.C. 207(o). Section 7(o)(5) effect at the time the NPRM was Fluctuating Workweek Method of governs a public employee’s use of published. The Department received no Computing Overtime Under 29 CFR accrued compensatory leave. That contrary comments that questioned the 778.114 section states: Department’s analysis or conclusions in The Department proposed to modify An employee of a public agency which is this regard. Consequently, the a State, political subdivision of a State, or an the regulation at 29 CFR 778.114 Department certifies once again interstate governmental agency—(A) who has addressing the fluctuating workweek pursuant to 5 U.S.C. 604 that the accrued compensatory time off authorized to method of computing overtime revisions being implemented in be provided under paragraph (1), and (B) compensation for salaried nonexempt connection with promulgating this final who has requested the use of such employees. The proposed regulation rule will not have a significant compensatory time, shall be permitted by the provided that bona fide bonus or economic impact on a substantial employee’s employer to use such time within premium payments would not number of small entities. Accordingly, a reasonable period after making the request invalidate the fluctuating workweek the Department need not prepare a if the use of the compensatory time does not method of compensation, but that such regulatory flexibility analysis. unduly disrupt the operations of the public payments (as well as ‘‘overtime agency. premiums’’) must be included in the VI. Unfunded Mandates Reform Act 29 U.S.C. 207(o)(5). As discussed supra, calculation of the regular rate unless This final rule has been reviewed in the Department proposed to amend they are excluded by FLSA sections accordance with the Unfunded § 553.25(c) to comport with appellate 7(e)(1)–(8). Paying employees bonus or Mandates Reform Act of 1995 (UMRA). court decisions reading the statutory premium payments for certain activities 2 U.S.C. 1501 et seq. For the purposes language to state that once an employee such as working undesirable hours is a of the UMRA, this rule does not impose requests compensatory time off, the common and beneficial practice for both any Federal mandate that may result in employer has a reasonable period of employers and their employees. increased expenditures by State, local, time to allow the employee to use the For the reasons discussed earlier in or Tribal governments, or increased time unless doing so would be unduly this preamble, while the Department expenditures by the private sector, of disruptive. Additionally, the continues to believe that the payment of more than $100 million in any year. Department proposed to clarify the bonus and premium payments can be employer’s obligation when denying an beneficial for employees in many other VII. Executive Order 13132 employee’s request for the use of contexts, we have concluded that unless (Federalism) compensatory time off in § 553.25(d). such payments are overtime premiums, The Department has reviewed this In the NPRM, the Department stated they are incompatible with the rule in accordance with the Executive its belief that the proposed changes fluctuating workweek method of Order on Federalism (Executive Order would eliminate some of the confusion computing overtime under section 13132, 64 FR 43255, Aug. 10, 1999). over the use of compensatory time off. 778.114. Therefore the final rule does This rule does not have federalism The Department stated that it did not not implement this proposed provision. implications as outlined in E.O. 13132. believe the proposed changes altered the Because the proposed changes will not The rule does not have substantial nature of compensatory time off rights be implemented, the Department does direct effects on the States, on the and responsibilities, but recognized that not believe that there will be any relationship between the national because of uncertainty as to their ability measurable economic impact on the government and the States, or on the to use compensatory time when public. distribution of power and requested, some employees might responsibilities among the various 1. Executive Orders 12866 and 13563 choose not to accrue compensatory time levels of government. off, thus resulting in some slight (Regulatory Review) economic impacts. The Department does not believe that VIII. Executive Order 13175, Indian As already discussed in this incorporating these statutory Tribal Governments preamble, since the publication of the amendments into the FLSA and Portal The Department has reviewed this NPRM, another appellate court has Act regulations will impose measurable rule under the terms of Executive Order addressed this issue and concluded that costs on private or public sector entities. 13175 and determined it did not have the statutory language is unclear and the The final rule changes should not result ‘‘tribal implications.’’ The rule does not Department’s regulations requiring an in additional compliance costs for have ‘‘substantial direct effects on one or employer to grant the specific time regulated entities because employers more Indian tribes, on the relationship

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between the Federal government and and ambiguities; (2) written to minimize ■ 3. Amend § 4.167 by revising the Indian tribes, or on the distribution of litigation; and (3) written to provide a twelfth sentence to the end, to read as power and responsibilities between the clear legal standard for affected conduct follows: Federal government and Indian tribes.’’ and to promote burden reduction. As a result, no Tribal summary impact § 4.167 Wage payments—medium of List of Subjects payment. statement has been prepared. 29 CFR Part 4 * * * The general rule under that Act IX. Effects on Families provides, when determining the wage Administrative practice and The Department certifies that this rule an employer is required to pay a tipped procedures, Employee benefit plans, will not adversely affect the well-being employee, the maximum allowable Government contracts, Labor, Law of families, as discussed under section hourly tip credit is limited to the enforcement, Minimum wages, 654 of the Treasury and General difference between $2.13 and the Penalties, Wages. Government Appropriations Act, 1999. applicable minimum wage specified in 29 CFR Part 516 X. Executive Order 13045, Protection of section 6(a)(1) of that Act. (See Children Employment, Recordkeeping, Law § 4.163(k) for exceptions in section 4(c) enforcement, Labor. situations.) In no event shall the sum The Department has reviewed this credited as tips exceed the value of tips rule under the terms of Executive Order 29 CFR Part 531 actually received by the employee. The 13045 and determined this action is not Employment, Labor, Minimum wages, tip credit is not available to an employer subject to E.O. 13045 because it is not Wages. unless the employer has informed the economically significant as defined in employee of the tip credit provisions E.O. 12866 and it does not impact the 29 CFR Part 553 and all tips received by the employee environmental health or safety risks of Firefighters, Labor, Law enforcement have been retained by the employee children. officers, Overtime pay, Wages. (other than as part of a valid tip pooling XI. Environmental Impact Assessment arrangement among employees who 29 CFR Part 778 customarily and regularly receive tips; The Department has reviewed this Employment, Overtime pay, Wages. see section 3(m) of the Fair Labor rule in accordance with the Standards Act). requirements of the National 29 CFR Part 779 Environmental Policy Act of 1969 Compensation, Overtime pay. PART 516—RECORDS TO BE KEPT BY (NEPA), 42 U.S.C. 4321 et seq., the EMPLOYERS regulations of the Council of 29 CFR Part 780 Environmental Quality, 40 CFR 1500 et Agriculture, Irrigation, Overtime pay. ■ 4. The authority citation for part 516 seq., and the Departmental NEPA is revised to read as follows: procedures, 29 CFR part 11, and 29 CFR Part 785 Authority: Sec. 11, 52 Stat. 1066, as determined that this rule will not have Compensation, Hours of work. amended, 29 U.S.C. 211. Section 516.28 also a significant impact on the quality of the 29 CFR Part 786 issued under Pub. L. 104–188, § 2105(b); Pub. human environment. There is, thus, no L. 110–28, 121 Stat. 112. Section 516.33 also corresponding environmental Compensation, Minimum wages, issued under 52 Stat. 1060, as amended; 29 assessment or an environmental impact Overtime pay. U.S.C. 201 et seq. Section 516.34 also issued under Sec. 7, 103 Stat. 944, 29 U.S.C. 207(q). statement. 29 CFR Part 790 ■ XII. Executive Order 13211, Energy Compensation, Hours of work. 5. Amend § 516.28 by revising the first Supply sentence of paragraph (a)(3) to read as Signed at Washington, DC, this 16th day of follows: The Department has determined that March 2011. this rule is not subject to Executive Nancy J. Leppink, § 516.28 Tipped employees. Order 13211. It will not have a Acting Administrator, Wage and Hour (a) * * * significant adverse effect on the supply, Division. (3) Amount by which the wages of distribution or use of energy. For the reasons set forth above, the each tipped employee have been Department amends Title 29, Parts 4, XIII. Executive Order 12630, deemed to be increased by tips as 516, 531, 553, 778, 779, 780, 785, 786, Constitutionally Protected Property determined by the employer (not in and 790 of the Code of Federal Rights excess of the difference between $2.13 Regulations as follows: The Department has determined that and the applicable minimum wage this rule is not subject to Executive PART 4—LABOR STANDARDS FOR specified in section 6(a)(1) of the Act). Order 12630 because it does not involve FEDERAL SERVICE CONTRACTS *** implementation of a policy ‘‘that has * * * * * taking implications’’ or that could ■ 1. The authority citation for part 4 is impose limitations on private property revised to read as follows: PART 531—WAGE PAYMENTS UNDER THE FAIR LABOR STANDARDS ACT use. Authority: 41 U.S.C. 351 et seq.; 41 U.S.C. OF 1938 XIV. Executive Order 12988, Civil 38 and 39; 5 U.S.C. 301; Pub. L. 104–188, Justice Reform Analysis § 2105(b); Pub. L. 110–28, 121 Stat. 112; Secretary’s Order 9–2009, 74 FR 58836 (Nov. ■ 6. The authority citation for part 531 The Department drafted and reviewed 13, 2009). is revised to read as follows: this final rule in accordance with Authority: Sec. 3(m), 52 Stat. 1060; sec. 2, Executive Order 12988 and determined § 4.159 General minimum wage. [Amended] 75 Stat. 65; sec. 101, 80 Stat. 830; sec. 29(B), that the rule will not unduly burden the 88 Stat. 55, Pub. L. 93–259; Pub. L. 95–151, Federal court system. The rule was: ■ 2. Amend § 4.159 by removing the last 29 U.S.C. 203(m) and (t); Pub. L. 104–188, (1) Reviewed to eliminate drafting errors sentence. § 2105(b); Pub. L. 110–28, 121 Stat. 112.

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§ 531.7 [Removed and Reserved] necessary to determine the portion of § 531.50 Statutory provisions with respect to tipped employees. ■ 7. Remove and reserve § 531.7. wages represented by facilities, all such ■ 8. Amend § 531.36 by revising facilities must be measured by the (a) With respect to tipped employees, paragraph (a) to read as follows: requirements of section 3(m) and section 3(m) provides that, in subpart B of this part. It is the determining the wage an employer is § 531.36 Nonovertime workweeks. Administrator’s opinion that deductions required to pay a tipped employee, the (a) When no overtime is worked by may be made, however, on the same amount paid such employee by the the employees, section 3(m) and this basis in an overtime workweek as in employee’s employer shall be an part apply only to the applicable nonovertime workweeks (see § 531.36), amount equal to— minimum wage for all hours worked. To if their purpose and effect are not to (1) the cash wage paid such employee illustrate, where an employee works 40 evade the overtime requirements of the which for purposes of such hours a week at a cash wage rate of at Act or other law, providing the amount determination shall be not less than the least the applicable minimum wage and deducted does not exceed the amount cash wage required to be paid such an is paid that amount free and clear at the which could be deducted if the employee on August 20, 1996 [i.e., end of the workweek, and in addition is employee had only worked the $2.13]; and furnished facilities, no consideration maximum number of straight-time hours (2) an additional amount on account need be given to the question of whether during the workweek. Deductions in of the tips received by such employee such facilities meet the requirements of excess of this amount for such articles which amount is equal to the difference section 3(m) and this part, since the as tools or other articles which are not between the wage specified in employee has received in cash the ‘‘facilities’’ within the meaning of the paragraph (1) and the wage in effect applicable minimum wage for all hours Act are illegal in overtime workweeks as under section 206(a)(1) of this title. worked. Similarly, where an employee well as in nonovertime workweeks. (b) ‘‘Tipped employee’’ is defined in is employed at a rate in excess of the There is no limit on the amount which section 3(t) of the Act as follows: Tipped applicable minimum wage and during a may be deducted for ‘‘board, lodging, or employee means any employee engaged particular workweek works 40 hours for other facilities’’ in overtime workweeks in an occupation in which he which the employee receives at least the (as in workweeks when no overtime is customarily and regularly receives more minimum wage free and clear, the worked), provided that these deductions than $30 a month in tips. employer having deducted from wages are made only for the ‘‘reasonable cost’’ for facilities furnished, whether such of the items furnished. These principles §§ 531.51, 531.56, 531.57, 531.58 [Amended] deduction meets the requirement of assume a situation where bona fide section 3(m) and subpart B of this part deductions are made for particular items ■ 13. In addition to the amendments set need not be considered, since the in accordance with the agreement or forth above, in 29 CFR part 531, remove employee is still receiving, after the understanding of the parties. If the the words ‘‘$20’’ and add, in their place, deduction has been made, a cash wage situation is solely one of refusal or the words ‘‘$30’’ wherever they appear of at least the minimum wage for each failure to pay the full amount of wages in the following places: hour worked. Deductions for board, required by section 7, these principles ■ a. Section 531.51; lodging, or other facilities may be made have no application. Deductions made ■ b. Section 531.56, the section heading in nonovertime workweeks even if they only in overtime workweeks, or and paragraphs (a) through (e); reduce the cash wage below the increases in the prices charged for ■ c. Section 531.57; and minimum wage, provided the prices articles or services during overtime ■ d. Section 531.58. charged do not exceed the ‘‘reasonable workweeks will be scrutinized to ■ 14. Amend § 531.52 by revising the cost’’ of such facilities. When such items determine whether they are second sentence to the end of the are furnished the employee at a profit, manipulations to evade the overtime paragraph to read as follows: the deductions from wages in weeks in requirements of the Act. which no overtime is worked are (b) Where deductions are made from § 531.52 General characteristics of ‘‘tips.’’ considered to be illegal only to the the stipulated wage of an employee, the * * * Whether a tip is to be given, extent that the profit reduces the wage regular rate of pay is arrived at on the and its amount, are matters determined (which includes the ‘‘reasonable cost’’ of basis of the stipulated wage before any solely by the customer, who has the the facilities) below the required deductions have been made. Where right to determine who shall be the minimum wage. Facilities must be board, lodging, or other facilities are recipient of the gratuity. Tips are the measured by the requirements of section customarily furnished as additions to a property of the employee whether or not 3(m) and this part to determine if the cash wage, the reasonable cost of the the employer has taken a tip credit employee has received the applicable facilities to the employer must be under section 3(m) of the FLSA. The minimum wage in cash or in facilities considered as part of the employee’s employer is prohibited from using an which may be legitimately included in regular rate of pay. See Walling v. employee’s tips, whether or not it has ‘‘wages’’ payable under the Act. Alaska Pacific Consolidated Mining Co., taken a tip credit, for any reason other * * * * * 152 F.2d 812 (9th Cir. 1945), cert. than that which is statutorily permitted ■ 9. Revise § 531.37 to read as follows: denied, 327 U.S. 803. in section 3(m): As a credit against its minimum wage obligations to the ■ § 531.37 Overtime workweeks. 10. Remove the undesignated center employee, or in furtherance of a valid (a) Section 7 requires that the heading above § 531.50. tip pool. Only tips actually received by employee receive compensation for ■ 11. Designate §§ 531.50 through an employee as money belonging to the overtime hours at ‘‘a rate of not less than 531.60 as subpart D, and add a heading employee may be counted in one and one-half times the regular rate for subpart D to read as follows: determining whether the person is a at which he is employed.’’ When ‘‘tipped employee’’ within the meaning overtime is worked by an employee who Subpart D—Tipped Employees of the Act and in applying the receives the whole or part of his or her provisions of section 3(m) which govern wage in facilities and it becomes ■ 12. Revise § 531.50 to read as follows: wage credits for tips.

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■ 15. Amend § 531.54 by adding two 6(a)(1) of the Act minus $2.13), was paid. * * * In accordance with sentences to the end of the paragraph to provided that the employer satisfies all section 3(m), a tipped employee’s read as follows: the requirements of section 3(m). This regular rate of pay includes the amount tip credit is in addition to any credit for of tip credit taken by the employer per § 531.54 Tip pooling. board, lodging, or other facilities which hour (not in excess of the minimum * * * Section 3(m) does not impose may be allowable under section 3(m). wage required by section 6(a)(1) minus a maximum contribution percentage on (b) As indicated in § 531.51, the tip $2.13), the reasonable cost or fair value valid mandatory tip pools, which can credit may be taken only for hours of any facilities furnished to the only include those employees who worked by the employee in an employee by the employer, as customarily and regularly receive tips. occupation in which the employee authorized under section 3(m) and this However, an employer must notify its qualifies as a ‘‘tipped employee.’’ part 531, and the cash wages including employees of any required tip pool Pursuant to section 3(m), an employer is commissions and certain bonuses paid contribution amount, may only take a not eligible to take the tip credit unless by the employer. * * * tip credit for the amount of tips each it has informed its tipped employees in * * * * * employee ultimately receives, and may advance of the employer’s use of the tip not retain any of the employees’ tips for credit of the provisions of section 3(m) PART 553—APPLICATION OF THE any other purpose. of the Act, i.e.: The amount of the cash FAIR LABOR STANDARDS ACT TO ■ 16. Revise § 531.55 to read as follows: wage that is to be paid to the tipped EMPLOYEES OF STATE AND LOCAL employee by the employer; the GOVERNMENTS § 531.55 Examples of amounts not additional amount by which the wages received as tips. of the tipped employee are increased on ■ 20. The authority citation for part 553 (a) A compulsory charge for service, account of the tip credit claimed by the is revised to read as follows: such as 15 percent of the amount of the employer, which amount may not Authority: Secs. 1–19, 52 Stat. 1060, as bill, imposed on a customer by an exceed the value of the tips actually amended (29 U.S.C. 201–219); Pub. L. 99– employer’s establishment, is not a tip received by the employee; that all tips 150, 99 Stat. 787 (29 U.S.C. 203, 207, 211). and, even if distributed by the employer received by the tipped employee must Pub. L. 106–151, 113 Stat. 1731 (29 U.S.C. to its employees, cannot be counted as be retained by the employee except for 203(y)). a tip received in applying the provisions a valid tip pooling arrangement limited ■ 21. Amend § 553.210 by revising of section 3(m) and 3(t). Similarly, to employees who customarily and paragraph (a), removing paragraph (b), where negotiations between a hotel and regularly receive tips; and that the tip and redesignating paragraph (c) as (b) to a customer for banquet facilities include credit shall not apply to any employee read as follows: amounts for distribution to employees who has not been informed of these of the hotel, the amounts so distributed requirements in this section. The credit § 553.210 Fire Protection Activities. are not counted as tips received. allowed on account of tips may be less (a) As used in sections 7(k) and (b) As stated above, service charges than that permitted by statute 13(b)(20) of the Act, the term ‘‘any and other similar sums which become (minimum wage required by section employee * * * in fire protection part of the employer’s gross receipts are 6(a)(1) minus $2.13); it cannot be more. activities’’ refers to ‘‘an employee, not tips for the purposes of the Act. In order for the employer to claim the including a firefighter, paramedic, Where such sums are distributed by the maximum tip credit, the employer must emergency medical technician, rescue employer to its employees, however, demonstrate that the employee received worker, ambulance personnel, or they may be used in their entirety to at least that amount in actual tips. If the hazardous materials worker, who—(1) is satisfy the monetary requirements of the employee received less than the trained in fire suppression, has the legal Act. maximum tip credit amount in tips, the authority and responsibility to engage in ■ 17. Amend § 531.56 by revising the employer is required to pay the balance fire suppression, and is employed by a last sentence in paragraph (d) to read as so that the employee receives at least fire department of a municipality, follows: the minimum wage with the defined county, fire district, or State; and (2) is combination of wages and tips. With the engaged in the prevention, control, and § 531.56 ‘‘More than $30 per month in tips.’’ exception of tips contributed to a valid extinguishment of fires or response to * * * * * tip pool as described in § 531.54, the tip emergency situations where life, (d) * * * It does not govern or limit credit provisions of section 3(m) also property, or the environment is at risk.’’ the determination of the appropriate require employers to permit employees ■ 22. In § 553.212, revise paragraph (a) amount of wage credit under section to retain all tips received by the and the last sentence of paragraph (b) to 3(m) that may be taken for tips under employee. read as follows: section 6(a)(1) (tip credit equals the ■ 19. Amend § 531.60(a) by removing difference between the minimum wage the paragraph designation ‘‘(a)’’ and § 553.212 Twenty percent limitation on required by section 6(a)(1) and $2.13 per revising the first and third sentences to nonexempt work. hour). read as follows: (a) Employees engaged in law * * * * * enforcement activities as described in ■ 18. Revise § 531.59 to read as follows: § 531.60 Overtime payments. § 553.211 may also engage in some When overtime is worked by a tipped nonexempt work which is not § 531.59 The tip wage credit. employee who is subject to the overtime performed as an incident to or in (a) In determining compliance with pay provisions of the Act, the conjunction with their law enforcement the wage payment requirements of the employee’s regular rate of pay is activities. The performance of such Act, under the provisions of section determined by dividing the employee’s nonexempt work will not defeat either 3(m) the amount paid to a tipped total remuneration for employment the section 13(b)(20) or 7(k) exemptions employee by an employer is increased (except statutory exclusions) in any unless it exceeds 20 percent of the total on account of tips by an amount equal workweek by the total number of hours hours worked by that employee during to the formula set forth in the statute actually worked by the employee in that the workweek or applicable work (minimum wage required by section workweek for which such compensation period. A person who spends more than

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20 percent of his/her working time in rate, a production bonus of $46 for the weeks the employee is in fact paid at an nonexempt activities is not considered week, the regular hourly rate of pay is hourly rate and the minimum hourly to be an employee engaged in law $13 an hour (46 hours at $12 yields guaranty is the regular rate in that week. enforcement activities for purposes of $552; the addition of the $46 bonus In the example just given, if the this part. makes a total of $598; this total divided employee was guaranteed $11 an hour (b) * * * In addition, the hours of by 46 hours yields a regular rate of $13). for productive working time, the work in the different capacity need not The employee is then entitled to be paid employee would be paid $506 (46 hours be counted as hours worked for a total wage of $637 for 46 hours (46 at $11) for the 46 hours of productive overtime purposes on the regular job, hours at $13 plus 6 hours at $6.50, or work (instead of the $491 earned at nor are such hours counted in 40 hours at $13 plus 6 hours at $19.50). piece rates). In a week in which no determining the 20 percent tolerance for ■ 27. Revise § 778.111 to read as waiting time was involved, the nonexempt work for law enforcement follows: employee would be owed an additional personnel discussed in paragraph (a) of $5.50 (half time) for each of the 6 this section. § 778.111 Pieceworker. overtime hours worked, to bring the (a) Piece rates and supplements total compensation up to $539 (46 hours § 553.215 [Removed and Reserved] generally. When an employee is at $11 plus 6 hours at $5.50 or 40 hours ■ 23. Remove and reserve § 553.215. employed on a piece-rate basis, the at $11 plus 6 hours at $16.50). If the regular hourly rate of pay is computed employee is paid at a different rate for §§ 553.221, 553.222, 553.223, 553.226, and by adding together total earnings for the waiting time, the regular rate is the 553.231 [Amended] workweek from piece rates and all other weighted average of the 2 hourly rates, ■ 24. Amend §§ 553.221, 553.222, sources (such as production bonuses) as discussed in § 778.115. 553.223, 553.226 and 553.231 to remove and any sums paid for waiting time or ■ 28. Amend § 778.113 by revising and add terms as follows. Remove the other hours worked (except statutory paragraph (a) and the fifth sentence of words ‘‘firefighter’’ or ‘‘firefighters’’ and exclusions). This sum is then divided by paragraph (b) to read as follows: add, in their place, the words ‘‘employee the number of hours worked in the week in fire protection activities’’ or for which such compensation was paid, § 778.113 Salaried employees—general. ‘‘employees in fire protection activities,’’ to yield the pieceworker’s ‘‘regular rate’’ (a) Weekly salary. If the employee is respectively, wherever they appear in for that week. For overtime work the employed solely on a weekly salary the following places: pieceworker is entitled to be paid, in basis, the regular hourly rate of pay, on ■ a. Section 553.221(a), (d), and (g); addition to the total weekly earnings at which time and a half must be paid, is ■ b. Section 553.222(a) and (c); this regular rate for all hours worked, a computed by dividing the salary by the ■ c. Section 553.223(a), (c), and (d); sum equivalent to one-half this regular number of hours which the salary is ■ d. Section 553.226(c); and rate of pay multiplied by the number of intended to compensate. If an employee ■ e. Section 553.231(b). hours worked in excess of 40 in the is hired at a salary of $350 and if it is week. (For an alternative method of understood that this salary is PART 778—OVERTIME complying with the overtime compensation for a regular workweek of COMPENSATION requirements of the Act as far as 35 hours, the employee’s regular rate of pieceworkers are concerned, see pay is $350 divided by 35 hours, or $10 ■ 25. The authority citation for part 778 § 778.418.) Only additional half-time an hour, and when the employee works is revised to read as follows: pay is required in such cases where the overtime the employee is entitled to Authority: 52 Stat. 1060, as amended; 29 employee has already received straight- receive $10 for each of the first 40 hours U.S.C. 201 et seq. Section 778.200 also issued time compensation at piece rates or by and $15 (one and one-half times $10) for under Pub. L. 106–202, 114 Stat. 308 (29 supplementary payments for all hours each hour thereafter. If an employee is U.S.C. 207(e) and (h)). worked. Thus, for example, if the hired at a salary of $375 for a 40-hour ■ 26. Revise § 778.110 to read as employee has worked 50 hours and has week the regular rate is $9.38 an hour. follows: earned $491 at piece rates for 46 hours (b) * * * The regular rate of an of productive work and in addition has employee who is paid a regular monthly § 778.110 Hourly rate employee. been compensated at $8.00 an hour for salary of $1,560, or a regular (a) Earnings at hourly rate exclusively. 4 hours of waiting time, the total semimonthly salary of $780 for 40 hours If the employee is employed solely on compensation, $523.00, must be divided a week, is thus found to be $9 per hour. the basis of a single hourly rate, the by the total hours of work, 50, to arrive *** hourly rate is the ‘‘regular rate.’’ For at the regular hourly rate of pay— * * * * * overtime hours of work the employee $10.46. For the 10 hours of overtime the ■ 29. Amend § 778.114 by revising must be paid, in addition to the straight employee is entitled to additional paragraph (b) to read as follows: time hourly earnings, a sum determined compensation of $52.30 (10 hours at by multiplying one-half the hourly rate $5.23). For the week’s work the § 778.114 Fixed salary for fluctuating by the number of hours worked in employee is thus entitled to a total of hours. excess of 40 in the week. Thus a $12 $575.30 (which is equivalent to 40 * * * * * hourly rate will bring, for an employee hours at $10.46 plus 10 overtime hours (b) The application of the principles who works 46 hours, a total weekly at $15.69). above stated may be illustrated by the wage of $588 (46 hours at $12 plus 6 at (b) Piece rates with minimum hourly case of an employee whose hours of $6). In other words, the employee is guarantee. In some cases an employee is work do not customarily follow a entitled to be paid an amount equal to hired on a piece-rate basis coupled with regular schedule but vary from week to $12 an hour for 40 hours and $18 an a minimum hourly guaranty. Where the week, whose total weekly hours of work hour for the 6 hours of overtime, or a total piece-rate earnings for the never exceed 50 hours in a workweek, total of $588. workweek fall short of the amount that and whose salary of $600 a week is paid (b) Hourly rate and bonus. If the would be earned for the total hours of with the understanding that it employee receives, in addition to the work at the guaranteed rate, the constitutes the employee’s earnings computed at the $12 hourly employee is paid the difference. In such compensation, except for overtime

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premiums, for whatever hours are (B) Made based upon the past § 779.372 Nonmanufacturing worked in the workweek. If during the performance (which may include any establishments with certain exempt course of 4 weeks this employee works criteria) of one or more employees in a employees under section 13(b)(10). 40, 37.5, 50, and 48 hours, the regular given period so long as the (a) General. A specific exemption hourly rate of pay in each of these determination is in the sole discretion of from only the overtime pay provisions weeks is $15.00, $16.00, $12.00, and the employer and not pursuant to any of section 7 of the Act is provided in $12.50, respectively. Since the prior contract. section 13(b)(10) for certain employees employee has already received straight- (b) Section 7(h). This subsection of the of nonmanufacturing establishments time compensation on a salary basis for Act provides as follows: engaged in the business of selling all hours worked, only additional half- automobiles, trucks, farm implements, time pay is due. For the first week the (1) Except as provided in paragraph trailers, boats, or aircraft. Section employee is entitled to be paid $600; for (2), sums excluded from the regular rate 13(b)(10)(A) states that the provisions of the second week $600.00; for the third pursuant to subsection (e) shall not be section 7 shall not apply with respect to week $660 ($600 plus 10 hours at $6.00 creditable toward wages required under ‘‘any salesman, partsman, or mechanic or 40 hours at $12.00 plus 10 hours at section 6 or overtime compensation primarily engaged in selling or servicing $18.00); for the fourth week $650 ($600 required under this section. automobiles, trucks, or farm plus 8 hours at $6.25, or 40 hours at (2) Extra compensation paid as implements, if he is employed by a $12.50 plus 8 hours at $18.75). described in paragraphs (5), (6), and (7) nonmanufacturing establishment * * * * * of subsection (e) of this section shall be primarily engaged in the business of ■ 30. Amend § 778.200 by adding creditable toward overtime selling such vehicles or implements to paragraph (a) (8) and revising paragraph compensation payable pursuant to this ultimate purchasers.’’ Section (b) to read as follows: section. 13(b)(10)(B) states that the provisions of * * * * * section 7 shall not apply with respect to § 778.200 Provisions governing inclusion, ‘‘any salesman primarily engaged in exclusion, and crediting of particular ■ 31. Amend § 778.208 by revising the selling trailers, boats, or aircraft, if he is payments. first sentence to read as follows: employed by a nonmanufacturing (a) * * * establishment primarily engaged in the (8) Any value or income derived from § 778.208 Inclusion and exclusion of bonuses in computing the ‘‘regular rate.’’ business of selling trailers, boats, or employer-provided grants or rights aircraft to ultimate purchasers.’’ This provided pursuant to a stock option, Section 7(e) of the Act requires the exemption will apply irrespective of the stock appreciation right, or bona fide inclusion in the regular rate of all annual dollar volume of sales of the employee stock purchase program remuneration for employment except establishment or of the enterprise of which is not otherwise excludable eight specified types of payments. * * * which it is a part. under any of paragraphs (a)(1) through (b) * * * (a)(7) of this section if— PART 779—THE FAIR LABOR (1) * * * (i) Grants are made pursuant to a STANDARDS ACT AS APPLIED TO program, the terms and conditions of RETAILERS OF GOODS OR SERVICES (ii) The establishment must be which are communicated to primarily engaged in the business of selling automobiles, trucks, or farm participating employees either at the ■ 32. The authority citation for part 779 implements to the ultimate purchaser beginning of the employee’s is revised to read as follows: participation in the program or at the for section 13(b)(10)(A) to apply. If these time of the grant; Authority: Secs. 1–19, 52 Stat. 1060, as tests are met by an establishment the (ii) In the case of stock options and amended; 75 Stat. 65; Sec. 29(B), Pub. L. exemption will be available for stock appreciation rights, the grant or 93–259, 88 Stat. 55; 29 U.S.C. 201–219. salesmen, partsmen and mechanics, employed by the establishment, who are right cannot be exercisable for a period ■ of at least 6 months after the time of 33. Revise the undesignated center primarily engaged during the work week grant (except that grants or rights may heading for §§ 779.371 and 779.372 to in the selling or servicing of the named become exercisable because of an read as follows: items. Likewise, the establishment must employee’s death, disability, retirement, Automobile, Truck and Farm Implement be primarily engaged in the business of or a change in corporate ownership, or Sales and Services, and Trailer, Boat selling trailers, boats, or aircraft to the other circumstances permitted by and Aircraft Sales ultimate purchaser for the section regulation), and the exercise price is at 13(b)(10)(B) exemption to be available least 85 percent of the fair market value ■ 34. Amend § 779.371 by revising the for salesmen employed by the of the stock at the time of grant; fifth sentence of paragraph (a) to read as establishment who are primarily (iii) Exercise of any grant or right is follows: engaged during the work week in selling voluntary; and these named items. An explanation of (iv) Any determinations regarding the § 779.371 Some automobile, truck, and the term ‘‘employed by’’ is contained in award of, and the amount of, employer- farm implement establishments may qualify §§ 779.307 through 779.311. The provided grants or rights that are based for exemption under section 13(a)(2). exemption is intended to apply to on performance are— (a) * * * Section 13(b)(10) is employment by such an establishment (A) Made based upon meeting applicable not only to automobile, of the specified categories of employees previously established performance truck, and farm implement dealers but even if they work in physically separate criteria (which may include hours of also to dealers in trailers, boats, and buildings or areas, or even if, though work, efficiency, or productivity) of any aircraft. * * * working in the principal building of the business unit consisting of at least 10 dealership, their work relates to the * * * * * employees or of a facility, except that, work of physically separate buildings or any determinations may be based on ■ 35. Amend § 779.372 by revising areas, so long as they are employed in length of service or minimum schedule paragraphs (a), (b)(1)(ii), (b)(2), and (c) a department which is functionally of hours or days of work; or to read as follows: operated as part of the dealership.

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(2) This exemption, unlike the former PART 780—EXEMPTIONS § 780.406 Exemption is from overtime exemption in section 13(a)(19) of the APPLICABLE TO AGRICULTURE, only. Act prior to the 1966 amendments, is PROCESSING OF AGRICULTURAL This exemption applies only to the not limited to dealerships that qualify as COMMODITIES, AND RELATED overtime provisions of the Act and does retail or service establishments nor is it SUBJECTS UNDER THE FAIR LABOR not affect the minimum wage, child limited to establishments selling STANDARDS ACT labor, recordkeeping, and other automobiles, trucks, and farm requirements of the Act. implements, but also includes dealers in ■ 36. The authority citation for part 780 ■ 40. Revise § 780.408 to read as trailers, boats, and aircraft. is revised to read as follows: follows: (c) Salesman, partsman, or mechanic. Authority: Secs. 1–19, 52 Stat. 1060, as § 780.408 Facilities of system at least 90 (1) As used in section 13(b)(10)(A), a amended; 75 Stat. 65; 29 U.S.C. 201–219. percent of which was used for agricultural salesman is an employee who is Pub. L. 105–78, 111 Stat. 1467. purposes. employed for the purpose of and is Section 13(b)(12) requires for ■ 37. Revise § 780.400 to read as exemption of irrigation work that the primarily engaged in making sales or follows: obtaining orders or contracts for sale of ditches, canals, reservoirs, or waterways the automobiles, trucks, or farm § 780.400 Statutory provisions. in connection with which the implements that the establishment is employee’s work is done be ‘‘used Section 13(b)(12) of the Fair Labor exclusively for supply and storing of primarily engaged in selling. As used in Standards Act exempts from the section 13(b)(10)(B), a salesman is an water at least 90 percent of which was overtime provisions of section 7 any ultimately delivered for agricultural employee who is employed for the employee employed in agriculture or in purpose of and is primarily engaged in purposes during the preceding calendar connection with the operation or year.’’ If a water supplier supplies water making sales or obtaining orders or maintenance of ditches, canals, contracts for sale of trailers, boats, or of which more than 10 percent is used reservoirs, or waterways, not owned or for purposes other than ‘‘agricultural aircraft that the establishment is operated for profit, or operated on a purposes’’ during the preceding calendar primarily engaged in selling. Work sharecrop basis, and which are used year, the exemption would not apply. performed incidental to and in exclusively for supply and storing of For example, the exemption would not conjunction with the employee’s own water, at least 90 percent of which was apply where more than 10 percent of the sales or solicitations, including ultimately delivered for agricultural water supplier’s water is delivered to a incidental deliveries and collections, is purposes during the preceding calendar municipality to be used for general, regarded as within the exemption. year. domestic, and commercial purposes. (2) As used in section 13(b)(10)(A), a ■ 38. Amend § 780.401 by revising the Water used for watering livestock raised partsman is any employee employed for first sentence of paragraph (a) and by a farmer is ‘‘for agricultural the purpose of and primarily engaged in paragraph (b) to read as follows: purposes.’’ requisitioning, stocking, and dispensing parts. § 780.401 General explanatory statement. PART 785—HOURS WORKED (3) As used in section 13(b)(10)(A), a (a) Section 13(b)(12) of the Act ■ 41. The authority citation for part 785 mechanic is any employee primarily contains the same wording exempting is revised to read as follows: any employee employed in agriculture engaged in doing mechanical work Authority: 52 Stat. 1060; 29 U.S.C. 201– (such as get ready mechanics, as did section 13(a)(6) prior to the 1966 219; 29 U.S.C. 254. Pub. L. 104–188, 100 Stat. automotive, truck, or farm implement amendments. * * * 1755. mechanics, used car reconditioning (b) In addition to exempting ■ 42. Amend § 785.7 by revising the first mechanics, and wrecker mechanics) in employees engaged in agriculture, sentence to read as follows: the servicing of an automobile, truck or section 13(b)(12) also exempts from the farm implement for its use and overtime provisions of the Act § 785.7 Judicial construction. operation as such. This includes employees employed in specified The United States Supreme Court mechanical work required for safe irrigation activities. The effect of the originally stated that employees subject operation, as an automobile, truck, or 1997 amendment to section 13(b)(12) is to the act must be paid for all time spent farm implement. The term does not to expand the overtime exemption for in ‘‘physical or mental exertion (whether include employees primarily performing any employee employed in specified burdensome or not) controlled or such nonmechanical work as washing, irrigation activities used for supply and required by the employer and pursued cleaning, painting, polishing, tire storing of water for agricultural necessarily and primarily for the benefit changing, installing seat covers, purposes by substituting ‘‘water, at least of the employer and his business.’’ dispatching, lubricating, or other 90 percent of which was ultimately *** nonmechanical work. Wrecker delivered for agricultural purposes ■ 43. Amend § 785.9 by adding a mechanic means a service department during the preceding calendar year’’ for sentence after the third sentence in mechanic who goes out on a tow or the prior requirement that all the water paragraph (a) to read as follows: be used for agricultural purposes. Prior wrecking truck to perform mechanical § 785.9 Statutory exemptions. servicing or repairing of a customer’s to the 1966 amendments employees (a) * * * The use of an employer’s vehicle away from the shop, or to bring employed in specified irrigation activities were exempt from the vehicle for travel by an employee and the vehicle back to the shop for repair activities that are incidental to the use service. A tow or wrecker truck driver minimum wage and overtime pay requirements of the Act. of such vehicle for commuting are not or helper who primarily performs considered ‘‘principal’’ activities when * * * * * nonmechanical repair work is not meeting the following conditions: The exempt. ■ 39. Revise § 780.406 to read as use of the employer’s vehicle for travel * * * * * follows: is within the normal commuting area for

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the employer’s business or PART 786—MISCELLANEOUS private non-profit food banks and who establishment and the use of the EXEMPTIONS AND EXCLUSIONS receive groceries from the food banks. employer’s vehicle is subject to an FROM COVERAGE agreement on the part of the employer PART 790—GENERAL STATEMENT AS and the employee or the representative ■ 46. The authority citation for part 786 TO THE EFFECT OF THE PORTAL-TO- of such employee. * * * is revised to read as follows: PORTAL ACT OF 1947 ON THE FAIR ■ 44. Amend § 785.34 by adding a Authority: 52 Stat. 1060, as amended; 29 LABOR STANDARDS ACT OF 1938 sentence after the first sentence to read U.S.C. 201–219. Pub. L. 104–188, 100 Stat. as follows: 1755. Pub. L. 105–221, 112 Stat. 1248, 29 ■ 50. The authority citation for part 790 U.S.C. 203(e). § 785.34 Effect of section 4 of the Portal- is revised to read as follows: ■ to-Portal Act. 47. Revise the heading to part 786 to Authority: 52 Stat. 1060, as amended; 110 read as set forth above. * * * Section 4(a) further provides Stat. 1755; 29 U.S.C. 201–219; 29 U.S.C. 254. ■ that the use of an employer’s vehicle for 48. Add subpart G consisting of ■ travel by an employee and activities that § 786.300 to read as follows: 51. Amend § 790.3 by adding a sentence at the end of paragraph (a)(2) are incidental to the use of such vehicle Subpart G—Youth Opportunity Wage for commuting are not considered to read as follows: principal activities when the use of such § 786.300 Application of the youth § 790.3 Provisions of the statute. vehicle is within the normal commuting opportunity wage. area for the employer’s business or Section 6(g) of the Fair Labor * * * * * establishment and is subject to an Standards Act allows any employer to (a) * * * agreement on the part of the employer pay any employee who has not attained (2) * * * For purposes of this and the employee or the representative the age of 20 years a wage of not less subsection, the use of an employer’s of such employee. * * * than $4.25 an hour during the first 90 vehicle for travel by an employee and ■ 45. Amend § 785.50 by adding a consecutive calendar days after such activities performed by an employee sentence at the end of paragraph (a)(2) employee is initially employed by such which are incidental to the use of such to read as follows: employer. For the purposes of hiring vehicle for commuting shall not be workers at this wage, no employer may § 785.50 Section 4 of the Portal-to-Portal considered part of the employee’s take any action to displace employees, Act. principal activities if the use of such including partial displacements such as * * * * * reducing hours, wages, or employment vehicle for travel is within the normal (a) * * * benefits. Any employer that violates commuting area for the employer’s (2) * * * For purposes of this business or establishment and the use of subsection, the use of an employer’s these provisions is considered to have violated section 15(a)(3) of the Act. the employer’s vehicle is subject to an vehicle for travel by an employee and agreement on the part of the employer activities performed by an employee ■ 49. Add subpart H consisting of § 786.350 to read as follows: and the employee or representative of which are incidental to the use of such such employee. vehicle for commuting shall not be considered part of the employee’s Subpart H—Volunteers at Private Non- * * * * * principal activities if the use of such Profit Food Banks [FR Doc. 2011–6749 Filed 4–4–11; 8:45 am] vehicle for travel is within the normal § 786.350 Exclusion from definition of BILLING CODE 4510–27–P commuting area for the employer’s ‘‘employee’’ of volunteers at private non- business or establishment and the use of profit food banks. the employer’s vehicle is subject to an Section 3(e)(5) of the Fair Labor agreement on the part of the employer Standards Act excludes from the and the employee or representative of definition of the term ‘‘employee’’ such employee. individuals who volunteer their services * * * * * solely for humanitarian purposes at

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Reader Aids Federal Register Vol. 76, No. 65 Tuesday, April 5, 2011

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING APRIL

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 revison date of each title. 24...... 18132 Presidential Documents 1 CFR Executive orders and proclamations 741–6000 304...... 18635 20 CFR The United States Government Manual 741–6000 3 CFR 404...... 18383 416...... 18383 Other Services Proclamations: Proposed Rules: Electronic and on-line services (voice) 741–6020 8641...... 18629 Ch. IV...... 18104 Privacy Act Compilation 741–6064 8642...... 18631 8643...... 18633 Ch. V...... 18104 Public Laws Update Service (numbers, dates, etc.) 741–6043 Ch. VI...... 18104 TTY for the deaf-and-hard-of-hearing 741–6086 5 CFR Ch. VII...... 18104 Proposed Rules: Ch. IX...... 18104 ELECTRONIC RESEARCH Ch. XLII...... 18104 21 CFR World Wide Web 7 CFR 520...... 18648 Full text of the daily Federal Register, CFR and other publications 946...... 18001 23 CFR is located at: www.fdsys.gov. 989...... 18003 Federal Register information and research tools, including Public Proposed Rules: 1340...... 18042 Inspection List, indexes, and links to GPO Access are located at: 301...... 18419 25 CFR www.ofr.gov. 319...... 18419 1260...... 18422 Proposed Rules: E-mail Ch. III ...... 18457 9 CFR FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 26 CFR an open e-mail service that provides subscribers with a digital 91...... 18347 form of the Federal Register Table of Contents. The digital form 201...... 18348 301...... 18059, 18385 of the Federal Register Table of Contents includes HTML and Proposed Rules: PDF links to the full text of each document. 10 CFR 301...... 18134 To join or leave, go to http://listserv.access.gpo.gov and select Proposed Rules: 29 CFR Online mailing list archives, FEDREGTOC-L, Join or leave the list 430...... 18105, 18425 4...... 18832 (or change settings); then follow the instructions. 431...... 18127, 18428 516...... 18832 PENS (Public Law Electronic Notification Service) is an e-mail 12 CFR 531...... 18832 service that notifies subscribers of recently enacted laws. 213...... 18349 553...... 18832 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 226...... 18354 778...... 18832 and select Join or leave the list (or change settings); then follow 717...... 18365 779...... 18832 the instructions. 748...... 18365 780...... 18832 965...... 18367 785...... 18832 FEDREGTOC-L and PENS are mailing lists only. We cannot 966...... 18367 786...... 18832 respond to specific inquiries. 969...... 18367 790...... 18832 Reference questions. Send questions and comments about the 987...... 18367 2520...... 18649 Federal Register system to: [email protected] 1270...... 18367 4042...... 18388 The Federal Register staff cannot interpret specific documents or Proposed Rules: Proposed Rules: regulations. 234...... 18445 Subtitle A ...... 18104 Ch. II ...... 18104 Reminders. Effective January 1, 2009, the Reminders, including 13 CFR Ch. IV...... 18104 Rules Going Into Effect and Comments Due Next Week, no longer 109...... 18007 Ch. V...... 18104 appear in the Reader Aids section of the Federal Register. This 120...... 18376 Ch. XVII ...... 18104 information can be found online at http://www.regulations.gov. Ch. XXV...... 18104 14 CFR CFR Checklist. Effective January 1, 2009, the CFR Checklist no Ch. XL...... 18134 longer appears in the Federal Register. This information can be 39 ...... 18020, 18022, 18024, found online at http://bookstore.gpo.gov/. 18029, 18031, 18033, 18038, 30 CFR 18376 Proposed Rules: FEDERAL REGISTER PAGES AND DATE, APRIL 71 ...... 18040, 18041, 18378 Ch. I ...... 18104 97...... 18379, 18382 104...... 18467 18001–18346...... 1 Proposed Rules: 938...... 18467 33...... 18130 18347–18630...... 4 31 CFR 18631–18860...... 5 39...... 18454, 18664 306...... 18062 16 CFR 356...... 18062 1303...... 18645 357...... 18062 363...... 18062 19 CFR Proposed Rules: 33 CFR 4...... 18132 165 ...... 18389, 18391, 18394,

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The text of laws is not H.R. 1079/P.L. 112–7 enacted public laws. To published in the Federal Airport and Airway Extension subscribe, go to http:// LIST OF PUBLIC LAWS Register but may be ordered Act of 2011 (Mar. 31, 2011; listserv.gsa.gov/archives/ in ‘‘slip law’’ (individual 125 Stat. 31) publaws-l.html This is a continuing list of pamphlet) form from the public bills from the current Superintendent of Documents, Last List March 21, 2011 session of Congress which U.S. Government Printing Note: This service is strictly have become Federal laws. It Office, Washington, DC 20402 for E-mail notification of new may be used in conjunction (phone, 202–512–1808). The Public Laws Electronic laws. The text of laws is not with ‘‘P L U S’’ (Public Laws text will also be made Notification Service available through this service. Update Service) on 202–741– available on the Internet from (PENS) PENS cannot respond to 6043. This list is also GPO Access at http:// specific inquiries sent to this available online at http:// www.gpoaccess.gov/plaws/ address. www.archives.gov/federal- index.html. Some laws may PENS is a free electronic mail register/laws.html. not yet be available. notification service of newly

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