7–20–10 Tuesday Vol. 75 No. 138 July 20, 2010

Pages 41963–42278

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Contents Federal Register Vol. 75, No. 138

Tuesday, July 20, 2010

Agriculture Department NOTICES See Commodity Credit Corporation Meetings: See Forest Service Historically Black College and University Capital Financing Advisory Board, 42081–42082 Antitrust Division NOTICES Energy Department Public Comments and Response on Proposed Final NOTICES Judgment: Environmental Impact Statements; Availability, etc.: United States v. Keyspan Corp., 42134–42164 Recapitalization of Infrastructure Supporting Naval Spent Nuclear Fuel Handling and Examination at the Idaho Centers for Disease Control and Prevention National Laboratory, 42082–42084 NOTICES Agency Information Collection Activities; Proposals, Environmental Protection Agency Submissions, and Approvals, 42091–42093 RULES Coast Guard Amendments to National Emission Standards for Hazardous Air Pollutants: RULES Area Source Standards for Prepared Feeds Inland Navigation Rules; Correction, 41987 Manufacturing, 41991–41994 Regulated Navigation Areas: PROPOSED RULES Bars Along the Coasts of Oregon and Washington; Amendments to National Emission Standards for Hazardous Amendment, 41987–41989 Air Pollutants: Commerce Department Area Source Standards for Prepared Feeds Manufacturing, 42030–42033 See Foreign-Trade Zones Board Approvals and Promulgations of Implementation Plans and See International Trade Administration Designations of Areas for Air Quality Planning See National Oceanic and Atmospheric Administration Purposes: See Patent and Trademark Office Michigan; Redesignation of Allegan County Area to Commodity Credit Corporation Attainment for Ozone, 42018–42030 RULES Regulation of Fuels and Fuel Additives: Wheat and Oilseed Programs: 2011 Renewable Fuel Standards, 42238–42268 NOTICES Durum Wheat Quality Program, 41963–41968 Clean Air Act Operating Permit Program: Commodity Futures Trading Commission Petition for Objection to State Operating Permit for JP Pulliam Power Plant, 42084 NOTICES Meetings: Meetings: Agricultural Advisory Committee, 42080–42081 Review Initial Health Effects Draft Materials for Ozone (O3) Integrated Science Assessment (ISA), 42085 Consumer Product Safety Commission Proposed Settlement Agreements: PROPOSED RULES Clean Air Act Citizen Suit, 42085–42087 Safety Standard for Bassinets and Cradles, 42017–42018 Science Advisory Board Staff Office Requests for Nominations of Experts: Corporation for National and Community Service SAB Hydraulic Fracturing Review Panel, 42087–42088 NOTICES Agency Information Collection Activities; Proposals, Federal Aviation Administration Submissions, and Approvals, 42081 RULES Certification of Aircraft and Airmen for the Operation of Drug Enforcement Administration Light-Sport Aircraft: NOTICES Modifications to Rules for Sport Pilots and Flight Agency Information Collection Activities; Proposals, Instructors With a Sport Pilot Rating; OMB Approval Submissions, and Approvals: of Information Collection, 41986 Application for Individual Manufacturing Quota for Basic Establishment of Class D Airspace: Class of Controlled Substance and for Ephedrine, San Marcos, TX, 41983–41984 etc., 42133–42134 Establishment of Class E Airspace: Application for Procurement Quota for Controlled Paynesville, MN, 41984–41985 Substances and Ephedrine, Pseudoephedrine, etc., Syracuse, KS, 41985–41986 42133 Re-Registration and Renewal of Aircraft Registration, 41968–41983 Education Department PROPOSED RULES PROPOSED RULES Proposed Amendments of Class E Airspace: Foreign Institutions–Federal Student Aid Programs, 42190– Pendleton, OR, 42012–42014 42236 San Clemente, CA, 42014–42015

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Supplemental Regulatory Flexibility Analysis: Memorandum of Understanding: Prohibition Against Certain Flights Within the Territory Food and Drug Administration and the National and Airspace of Afghanistan, 42015–42017 Institutes of Health; et al., 42105–42113 NOTICES Petitions For Exemption: Foreign-Trade Zones Board Summary of Petition Received, 42187 NOTICES Expansions of Foreign-Trade Zone 152: Federal Election Commission Burns Harbor, IN, 42069 NOTICES Policy Statements Establishing Pilot Programs: Forest Service Requesting Consideration of Legal Questions by NOTICES Commission, 42088–42089 Meetings: Chequamegon Resource Advisory Committee, 42067 Federal Emergency Management Agency Southwest Mississippi Resource Advisory Committee, NOTICES 42067 Major Disaster Declarations: North Dakota (Amendment No. 3), 42116 General Services Administration RULES Federal Reserve System Federal Management Regulations: NOTICES Home-to-Work Transportation, 41994–41995 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 42089–42090 Health and Human Services Department Proposals to Engage in Permissible Nonbanking Activities See Centers for Disease Control and Prevention or to Acquire Companies, etc., 42090 See Food and Drug Administration See National Institutes of Health Fish and Wildlife Service NOTICES PROPOSED RULES Meetings: Endangered and Threatened Wildlife and Plants: HIT Policy Advisory Committee, 42091 12-Month Finding on a Petition to List the Amargosa HIT Standards Committee Advisory, 42090–42091 Toad as Threatened or Endangered, 42040–42054 90-Day Finding on a Petition to List Pinus albicaulis Homeland Security Department (Whitebark Pine) as Endangered or Threatened with See Coast Guard Critical Habitat, 42033–42040 See Federal Emergency Management Agency 90-Day Finding on a Petition to List the Giant Palouse See U.S. Customs and Border Protection Earthworm (Driloleirus americanus) as Threatened or Endangered, 42059–42066 Interior Department Revised Critical Habitat for Brodiaea filifolia (Thread- See Fish and Wildlife Service leaved Brodiaea), 42054–42059 See Land Management Bureau NOTICES See National Park Service Agency Information Collection Activities; Proposals, Submissions, and Approvals: International Trade Administration Incidental Take of Marine Mammals During Specified NOTICES Activities, 42118–42119 Continuations of Antidumping Duty Orders: Wildlife Without Borders – Amphibians in Decline Grant Certain Tissue Paper Products from People’s Republic of Program, 42117–42118 China, 42067–42068 Marine Mammals: Partial Rescissions of Antidumping Duty Administrative Incidental Take During Specified Activities, 42121–42125 Reviews: Certain Frozen Warmwater Shrimp from People’s Food and Drug Administration Republic of China, 42070–42071 RULES Medical Devices; Pediatric Uses of Devices; Requirements Justice Department for Submission of Information, etc.: See Antitrust Division Withdrawal, 41986 See Drug Enforcement Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals: Submissions, and Approvals: Designated New Animal Drugs for Minor Use and Minor Semi-Annual Progress Report for Grantees from Court Species, 42094–42095 Training and Improvements Program, 42129–42130 Menthol in Cigarettes, 42093–42094 Semi-Annual Progress Report for Grantees from Engaging Petition to Request Exemption from 100 Percent Identity Men and Youth Program, 42128–42129 Testing of Dietary Ingredients, etc., 42095–42097 Semi-Annual Progress Report for Grantees from Service International Conference on Harmonisation: to Advocate for and Respond to Youth Program, Draft Recommendation for Revision of Permitted Daily 42126–42127 Exposure for Solvent Cumene, etc.; Availability, Semi-Annual Progress Report for Grantees from Tribal 42098–42099 Sexual Assault Services Program, 42127–42128 Meetings: Semi-annual Progress Report for Technical Assistance Advancing Development of Medical Products Used in Program, 42128 Prevention, Diagnosis, and Treatment of Neglected Lodging of Consent Decrees: Tropical Diseases, 42103–42104 United States et al. v. McWane, Inc., 42130–42131

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United States v. City of Tacoma, 42131–42133 Inventory Completions: United States v. Edgeboro Disposal, Inc., et al., 42131 U.S. Department of Interior; Bureau of Indian Affairs; United States v. Summit Builders Construction Co., Washington D.C., et al., 42120 42132 Meetings: Acadia National Park Advisory Commission, 42126 Labor Department NOTICES Nuclear Regulatory Commission Final Determination Updating the List of Products PROPOSED RULES Requiring Federal Contractor Certification: Requirements for Fingerprint-Based Criminal History Forced or Indentured Child Labor Pursuant to Executive Records Checks for Individuals Seeking Unescorted Order 13126, 42164–42167 Access to Research or Test Reactors, 42000–42012 NOTICES Land Management Bureau Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 42168 Meetings: Environmental Impact Statements; Availability, etc.: Dakotas Resource Advisory Council, 42125 Nextera Energy Seabrook; Seabrook Station (Unit 1), Eastern Montana Resource Advisory Council, 42125– 42168–42170 42126 Final Regulatory Guides; Issuance, Availability: Methods for Measuring Effective Dose Equivalent from Legal Services Corporation External Exposure, 42170 NOTICES Meetings; Sunshine Act, 42170–42171 Meetings; Sunshine Act, 42167–42168 Patent and Trademark Office National Institutes of Health NOTICES NOTICES Treatment of Letters Stating that USPTO’s Patent Term Agency Information Collection Activities; Proposals, Adjustment Determination is Greater, etc., 42079– Submissions, and Approvals: 42080 Office of Intramural Training and Education Application, 42097–42098 Postal Regulatory Commission Meetings: NOTICES Eunice Kennedy Shriver National Institute of Child New Postal Products, 42171–42172 Health and Human Development, 42099–42100 National Center on Minority and Health Disparities, Postal Service 42100–42101 RULES National Heart, Lung, and Blood Institute, 42100 Content of Periodicals Mail, 41989–41991 National Institute on Drug Abuse, 42100, 42102–42105 National Library of Medicine, 42101–42102 Recovery Accountability and Transparency Board Proposed Actions Under NIH Guidelines: NOTICES Office of Biotechnology Activities; Recombinant DNA Meetings: Research, 42114–42115 Recovery Independent Advisory Panel, 42172

National Oceanic and Atmospheric Administration Securities and Exchange Commission RULES RULES Atlantic Highly Migratory Species: Adoption of Supplemental Standards of Ethical Conduct for Atlantic Bluefin Tuna Fisheries; Closure, 41995–41996 Members and Employees of SEC and Revisions to Fisheries of Exclusive Economic Zone Off Alaska: Commission’s Ethics Rules, 42270–42278 Pacific Ocean Perch for Catcher Vessels Participating in NOTICES Rockfish Entry Level Trawl Fishery, etc.; Closure, Agency Information Collection Activities; Proposals, 41999 Submissions, and Approvals, 42174–42177 Fisheries of Northeastern United States: Applications: Northeast Multispecies Fishery; Pollock Catch Limit Federated Enhanced Treasury Income Fund, et al., Revisions, 41996–41998 42177–42181 NOTICES Evaluation of State Coastal Management Programs and Small Business Administration National Estuarine Research Reserves, 42068–42069 NOTICES Meetings: Disaster Declarations: Pacific Fishery Management Council, 42069–42070 North Dakota, 42172 South Atlantic Fishery Management Council, 42069 Oklahoma, 42173 Taking and Importing Marine Mammals: Waivers of Nonmanufacturer Rule: Operations of a Liquified Natural Gas Port Facility in Configured Tape Library Storage Equipment, 42173– Massachusetts Bay, 42071–42079 42174

National Park Service Transportation Department NOTICES See Federal Aviation Administration Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 42116–42117 Funding Availabilities: Intention to Repatriate Cultural Items: Small Business Transportation Resource Center Program, High Desert Museum; Bend, OR, 42119–42120 42181–42187

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U.S. Customs and Border Protection Part IV NOTICES Securities and Exchange Commission, 42270–42278 Accreditation and Approval of Camin Cargo Control, Inc. as Commercial Gauger and Laboratory, 42115 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reader Aids Passenger and Crew Manifest, 42115–42116 Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Separate Parts In This Issue To subscribe to the Federal Register Table of Contents Part II LISTSERV electronic mailing list, go to http:// Education Department, 42190–42236 listserv.access.gpo.gov and select Online mailing list Part III archives, FEDREGTOC-L, Join or leave the list (or change Environmental Protection Agency, 42238–42268 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.

5 CFR 4401...... 42270 7 CFR 1413...... 41963 10 CFR Proposed Rules: 73...... 42000 14 CFR 13...... 41968 47...... 41968 71 (3 documents) ...... 41983, 41984, 41985 91 (2 documents) ...... 41968, 41986 Proposed Rules: 71 (2 documents) ...... 42012, 42014 91...... 42015 16 CFR Proposed Rules: 1218...... 42017 17 CFR 200...... 42270 21 CFR 814...... 41986 33 CFR 100...... 41987 165...... 41987 34 CFR Proposed Rules: 600...... 42190 668...... 42190 682...... 42190 39 CFR 111...... 41989 40 CFR 63...... 41991 Proposed Rules: 52...... 42018 63...... 42030 80...... 42238 81...... 42018 41 CFR 102-5...... 41994 50 CFR 635...... 41995 648...... 41996 679...... 41999 Proposed Rules: 17 (4 documents) ...... 42033, 42040, 42054, 42059

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Rules and Regulations Federal Register Vol. 75, No. 138

Tuesday, July 20, 2010

This section of the FEDERAL REGISTER a wheat disease caused by the Fusarium applied per acre of durum wheat, for the contains regulatory documents having general genus of fungi. applicable crop year. The application applicability and legal effect, most of which The 2008 Farm Bill authorizes annual payment rate set by the State committee are keyed to and codified in the Code of appropriations for DWQP. The will be based on 50 percent of the Federal Regulations, which is published under Agriculture, Rural Development, Food 50 titles pursuant to 44 U.S.C. 1510. State’s average cost to apply an eligible and Drug Administration, and Related fungicide per acre of durum wheat, for The Code of Federal Regulations is sold by Agencies Appropriations Act, 2010 the applicable crop year. If eligible the Superintendent of Documents. Prices of (2010 Agriculture Appropriations Bill, applications exceed the available new books are listed in the first FEDERAL Pub. L. 111–80) provides $3 million for funding, FSA plans to prorate the REGISTER issue of each week. this program in fiscal year 2010. This available funds by a national factor to rule implements specific requirements reduce the total expected payments to for the DWQP in 7 CFR part 1413. the amount available for the crop year. DEPARTMENT OF AGRICULTURE DWQP is a Commodity Credit The 50 percent of actual cost limit on Corporation (CCC) program that will be the payment rate is specified in the 2008 Commodity Credit Corporation administered by FSA. Farm Bill. The basic eligibility requirements, 7 CFR Part 1413 Producers may treat the crop with authorized funding limit, and eligible fungicides more than once RIN 0560–AH72 compensation rates for this program are during the crop year, but only one such specified in the 2008 Farm Bill. The treatment per year during the flowering Wheat and Oilseed Programs; Durum details in this rule on eligible stage will be eligible for DWQP Wheat Quality Program fungicides, the application process, and payment. CCC will collect data on acceptable documentation of the reasonable per acre usage and AGENCY: Farm Service Agency and producer’s actual cost are discretionary Commodity Credit Corporation, USDA. application rates for a single treatment provisions. of fungicide, and will take that into ACTION: Final rule. Applying for DWQP Payments; DWQP consideration when calculating the SUMMARY: This rule implements specific Payment Calculation national fungicide payment rate. As noted above, the payments will be 50 requirements for the Durum Wheat Producers must file a completed percent of actual cost or the payment Quality Program (DWQP) authorized by application in the FSA county office rate, whichever is lower. the Food, Conservation, and Energy Act during the application period of 2008 (the 2008 Farm Bill). The 2008 announced by the Deputy To be considered an eligible fungicide Farm Bill authorizes the DWQP for Administrator. To be eligible, a for DWQP, the fungicide must have fiscal years 2009 through 2012 to producer must have used an eligible been registered with the Environmental partially compensate producers for the fungicide to control Fusarium head Protection Agency (EPA) and be cost of fungicides applied to durum blight on acres certified as planted to compliant with State pesticide wheat to control Fusarium head blight, durum wheat. This rule specifies that regulations in the State in which commonly known as wheat scab. producers must provide documentation benefits are being requested. DATES: Effective Date: July 20, 2010. to show: Information on eligible pesticides in a FOR FURTHER INFORMATION CONTACT: • The total number and location of State is available on State Candace Thompson, Director, acres planted to durum wheat to which environmental Web sites. The EPA Production, Emergencies, and an eligible fungicide was applied to maintains State Resource Locators and Compliance Division; Farm Service control Fusarium head blight, and contact information for State pesticide Agency (FSA); U.S. Department of • The actual cost of the eligible programs at http://www.epa.gov/ Agriculture (USDA), Mail Stop 0517, fungicide. pesticides/safety/applicators/ 1400 Independence Avenue, SW., This rule specifies that producers statepro.htm. Washington, DC 20250–0517; telephone must certify the dates: CCC will announce the period for (202) 720–3463; e-mail to: • Durum wheat was planted, and submitting payment applications under [email protected]. • Eligible fungicide was applied to this program. The program application Persons with disabilities who require durum wheat to control Fusarium head period for a crop year will end alternative means for communication blight. September 15 of that crop year. During (Braille, large print, audiotape, etc.) Payments to eligible producers will be the application period, durum wheat should contact the USDA Target Center based on 50 percent of their actual cost producers may apply in person at FSA at 202–720–2600 (voice and TDD). for eligible fungicide or a per-acre county offices during regular business SUPPLEMENTARY INFORMATION: national fungicide acquisition payment hours. Applications may also be rate set by the FSA Deputy submitted by mail or fax. Program Background Administrator, whichever is lower, plus applications may be obtained in person, Section 1613 of the 2008 Farm Bill a per-acre State application payment by mail, telephone, or fax from any FSA (Pub. L. 110–246) authorizes the rate, as set by the State committee. The county office or via the Internet at Secretary of Agriculture to compensate fungicide acquisition payment rate set http://forms.sc.egov.usda.gov/eForms. producers of durum wheat for up to 50 by the Deputy Administrator will be Any application received after percent of the actual cost of fungicide based on 50 percent of the national September 15 of the applicable crop applied to control Fusarium head blight, average cost of an eligible fungicide year will not receive consideration and

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producers on that application will be DWQP producers must have been in Summary of Economic Impacts ineligible for payment. compliance with the regulations at 7 DWQP is funded by annual The application period for the 2010 CFR part 12, ‘‘Highly Erodible Land and appropriations. The appropriated crop year will end September 15, 2010. Wetland Conservation,’’ during the year funding for FY 2010 is $3 million, An annual deadline for applications is for which the person is requesting which is the expected maximum cost of necessary because CCC must know the benefits. Those regulations provide for a this program for FY 2010. The cost of total value of requested payments in denial of benefits for failing to comply this program, and benefit to producers, order to determine if payments will with general requirements regarding the will depend upon how many producers exceed the available funding for that handling of highly erodible cropland apply for the program, but will in no year. We anticipate that for FY 2010, and wetlands. case exceed appropriated funding. payment applications may exceed the Appeal regulations in 7 CFR parts 11 Program participation levels will likely available $3 million in appropriated and 780 apply and under those rules it increase if weather conditions warrant funding and we will need to prorate the is the program agency’s view and the application of fungicide to eligible payments. This program is funded by position that appeals are not allowed for crops. Costs and benefits for FY 2010 annual appropriations, so in future matters of general applicability rather are expected to range between $500,000 years there may be more or less funding than factual determination and under and $3 million. In FY 2011–2012, costs for this program than is available for FY and benefits could be as much as $10 that view producers would not be able 2010. No funding was appropriated for million per year, the maximum to appeal CCC determinations that are this program in FY 2009, so there was authorized for appropriations, but are not limited to particular disputes for a no application period in 2009, and expected to average under $1.5 million, subsequently no available payments. particular producer or producers but are based on historical data of fungicide Application periods for subsequent matters of policy. These include, but are usage. Most of the program participants years will be announced as funding not limited to, general regulatory who will receive the benefits are becomes available. The application provisions that apply to similarly expected to be durum wheat producers periods are expected to be typically at situated producers. in Montana and North Dakota. least 60 days, and never, it is This Rule and Related Programs Regulatory Flexibility Act anticipated, less than 30 days, as determined by the Deputy This rule adds a new part 1413, This rule is not subject to the Administrator, subject to when the ‘‘Commodity Incentive Payment Regulatory Flexibility Act since CCC is appropriations become available, and Programs,’’ to Title 7 of the Code of not required to publish a notice of will always end on September 15 of the Federal Regulations (CFR). This new proposed rulemaking for this rule. applicable year. part will include regulations for DWQP Environmental Evaluation CCC will establish a reserve fund for and two other commodity incentive The environmental impacts of this errors and appeals. These reserve funds programs authorized by the 2008 Farm rule have been considered in a manner are only intended for corrections and Bill. Subpart A of the new part 1413, consistent with the provisions of the payments for disapproved applications which is added with this rule, specifies National Environmental Policy Act that are successfully appealed, and not provisions for DWQP. Subparts B and C (NEPA, 42 U.S.C. 4321–4347), the for late-filed applications. will be added later when the hard white regulations of the Council on 2008 Farm Bill provisions that wheat and oilseed incentives programs Environmental Quality (40 CFR parts mandate an eligibility limit that specified in sections 1605 and 1612 of 1500–1508), and FSA regulations for prevents payments for persons with an the 2008 Farm Bill are funded and compliance with NEPA (7 CFR part average adjusted gross income (AGI) implemented. 799). The changes to the Wheat and limitation above certain amounts Notice and Comment Oilseed Programs and Durum Wheat (depending on the program) do not Quality Program required by the 2008 apply to this program and no such test These regulations are exempt from the Farm Bill that are identified in this final will be applied. notice and comment requirements of the rule are actions that do not require an Miscellaneous DWQP Provisions Administrative Procedures Act (5 U.S.C. assessment or an EIS (7 CFR 799.10(b)(2)(x)). Therefore, FSA will not All producers must meet the 553), as specified in section 1601(c) of prepare an environmental assessment or eligibility and documentation the 2008 Farm Bill, which requires that an environmental impact statement. requirements provided in this rule. the regulations be promulgated and False certifications carry serious administered without regard to the Executive Order 12372 notice and comment provisions of consequences. CCC will validate This program is not subject to applications with random compliance Section 553 of title 5, United States Code or to the Statement of Policy of the Executive Order 12372, which requires spot-checks. consultation with State and local Producers receiving DWQP payments Secretary effective July 24, 1971 (36 FR 13804) relating to notices of proposed officials. See the notice related to 7 CFR must keep records and supporting part 3015, subpart V, published in the documentation for 3 years following the rulemaking and public participation in rulemaking. Federal Register on June 24, 1983 (48 end of the year in which the application FR 29115). for payment was filed. The discretionary Executive Order 12866 recordkeeping requirement is consistent Executive Order 12988 with other FSA and CCC rules and This final rule has been designated as This rule has been reviewed under programs. Payments will only be made not significant under Executive Order Executive Order 12988. This final rule for one fungicide treatment as one 12866 and has not been reviewed by the is not retroactive and it does not treatment should suffice and will allow Office of Management and Budget. The preempt State or local laws, regulations, for equal treatment of producers cost benefit analysis is summarized or policies unless they present an consistent with the spirit and letter of below and is available from the contact irreconcilable conflict with this rule. the 2008 Farm Bill. information listed above. Before any judicial action may be

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brought regarding the provisions of this ■ For the reasons explained above, CCC intended to be harvested. For example, rule the administrative appeal adds 7 CFR part 1413 to read as follows: a reference to the 2010 crop year of provisions of 7 CFR parts 11 and 780 wheat means wheat that when planted must be exhausted. PART 1413—COMMODITY INCENTIVE was intended for harvest in calendar PAYMENT PROGRAMS year 2010. Executive Order 13132 Durum wheat means all varieties of The policies contained in this rule do Authority: 7 U.S.C. 8788 and 15 U.S.C. white (amber) durum wheat as defined not have any substantial direct effect on 714. in the U.S. Standards for Wheat (7 CFR States, on the relationship between the Subpart A—Durum Wheat Quality Program part 810, subpart M) including, but not Federal government and the States, or Sec. limited to, hard amber durum wheat on the distribution of power and 1413.101 Applicability. and amber durum wheat. responsibilities among the various 1413.102 Definitions. Flowering stage means the period of levels of government. Nor does this rule 1413.103 Administration. time during the wheat growth stage, impose substantial direct compliance 1413.104 Eligibility. after the head emergence has completed costs on State and local governments. 1413.105 [Reserved] and prior to milk development in the Therefore, consultation with the States 1413.106 Application process. kernel. is not required. 1413.107 Availability of funds. State committee, county committee or 1413.108 Payment calculation. county office means the respective FSA Executive Order 13175 1413.109 Refunds, joint and several liability. committee or office. The policies contained in this rule do 1413.110 Misrepresentation and scheme or United States means all 50 States of not have Tribal implications that device. the United States, the District of preempt Tribal law. 1413.111 Miscellaneous provisions. Columbia, the Commonwealth of Puerto Rico, and any other territory or Unfunded Mandates 1413.112 Appeals. 1413.113 Deceased individuals or possession of the United States. This rule contains no Federal dissolved entities. USDA means the United States mandates under the regulatory 1413.114 Records and inspections. Department of Agriculture. provisions of Title II of the Unfunded Subpart B [Reserved] Mandates Reform Act of 1995 (UMRA) § 1413.103 Administration. for State, local, or Tribal governments, Subpart C [Reserved] (a) DWQP will be administered under or the private sector. In addition, CCC the general supervision of the Executive Subpart A—Durum Wheat Quality is not required to publish a notice of Vice President, CCC (Administrator, Program proposed rulemaking for this rule. Farm Service Agency (FSA)), or a Therefore, this rule is not subject to the § 1413.101 Applicability. designee, and will be carried out in the requirements of sections 202 and 205 of (a) This subpart establishes the terms field by FSA State and county UMRA. and conditions under which the Durum committees and FSA employees. (b) FSA representatives do not have Federal Domestic Assistance Program Wheat Quality Program (DWQP) as authorized by section 1613 of the Food, authority to modify or waive any of the The title and number of the Federal Conservation, and Energy Act of 2008 provisions of the regulations of this Domestic Assistance Program, as found (Pub. L. 110–246) will be administered. subpart, except as specified in in the Catalog of Federal Domestic (b) This program will operate only to paragraph (e) of this section. Assistance, to which this rule applies, is the extent appropriated funding is (c) The State FSA committee will take the Durum Wheat Quality Program— available. any action required by the provisions of 10.095. (c) Subject to available funding, this subpart that the county FSA committee has not taken. The State FSA Paperwork Reduction Act eligible producers of durum wheat will be partially compensated for the cost of committee will also: These regulations are exempt from the purchasing and applying fungicides to a (1) Correct, or require a county FSA requirements of the Paperwork crop of durum wheat to control committee to correct, any action taken Reduction Act (44 U.S.C. Chapter 35), as Fusarium head blight on acres by such county FSA committee that is specified in section 1601(c)(2)(a) of the accurately certified as planted to durum not in compliance with the provisions 2008 Farm Bill, which provides that wheat. ‘‘Available funding’’ requires that of this subpart. these regulations, which are necessary there be a specific appropriation for the (2) Require a county FSA committee to implement title I of the 2008 Farm program that applies to a particular crop to not take an action that is not in Bill, be promulgated and administered for which the producer seeks compliance with the provisions of this without regard to the Paperwork compensation under this program. subpart. Reduction Act. (d) No provision or delegation to a § 1413.102 Definitions. State or county FSA committee will E-Government Act Compliance The following definitions apply to preclude the Administrator, Deputy CCC is committed to complying with this subpart. The definitions in parts Administrator, or a designee from the E-Government Act, to promote the 718 and 1400 of this title also apply, determining any question arising under use of the Internet and other except where they conflict with the the program in this subpart, or from information technologies to provide definitions in this section. reversing or modifying any increased opportunities for citizen Application period means the dates determination made by a State or county access to Government information and established by the Deputy Administrator FSA committee. services, and for other purposes. for Farm Programs for producers to (e) The Deputy Administrator may authorize State and county FSA List of Subjects in 7 CFR Part 1413 apply for program benefits. CCC means the Commodity Credit committees to waive or modify non- Agricultural commodities, Oilseeds, Corporation. statutory program requirements of this Reporting and recordkeeping Crop year means the calendar year in subpart in cases where failure to meet requirements, Wheat. which the wheat was harvested or such requirements does not adversely

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affect operation of the program in this including application cost, during the voluntary; however, without all subpart. Producers have no right to seek flowering stage, to a crop of durum required data program benefits will not an exception under this provision. The wheat per crop year. Multiple or be approved or provided. Deputy Administrator’s refusal to additional fungicide treatments, beyond consider cases or circumstances or a single treatment, to the same crop of § 1413.107 Availability of funds. decision not to exercise this wheat are not eligible for benefits. (a) The 2008 Farm Bill authorizes up discretionary authority under this to $10 million to be appropriated for provision will not be considered an § 1413.105 [Reserved] each of the 2009 through 2012 fiscal adverse decision and is not appealable. § 1413.106 Application process. years for DWQP. Payments will not be made for claims for a particular crop § 1413.104 Eligibility. (a) To apply for DWQP payment, the year until after the application deadline, (a) To be considered eligible for producer must submit, to the FSA which is September 15 of that crop year, DWQP payments, the person or entity county office that maintains the for the crop for which payment for the must have a share in the treated wheat producer’s farm records for the fungicide application is sought and only crop on those acres planted to durum agricultural operation, a completed if funds are made available through an wheat on which an eligible fungicide application as specified in paragraph (c) appropriation. was applied, as certified on the of this section, including any supporting (b) In the event that approval of all application, have incurred the cost of documentation required by FSA, and a eligible applications for fungicide acquiring and applying eligible report of acreage. treatments for a particular crop would fungicide, and meet the requirements in (b) The producer must submit a result in expenditures in excess of the paragraph (b) of this section. completed application for payment and amounts appropriated for that crop year, (b) To be eligible for benefits, a person required supporting documentation to the FSA Deputy Administrator will or entity must be a: the administrative FSA county office prorate the funds by a national factor to (1) Citizen of the United States; during the relevant, for the crop, reduce the total expected payments to (2) ‘‘Lawful alien’’ as defined in application period announced by FSA the amount made available by the § 1400.3 of this chapter; which will end no later than September Secretary. FSA will prorate the (3) Partnership of citizens of the 15 of the crop year in which the payments in such manner as it United States; or fungicide was applied to a crop of determines appropriate and reasonable. (4) Corporation, limited liability durum wheat. (c) Claims that are unpaid or paid at corporation, or other farm (c) A complete application includes a reduced rate for a crop year for any organizational structure organized all of the following: reason will not be carried forward for under State law. (1) An application form provided by payment under other funds for later (c) A minor child is eligible to apply FSA; crop years, unless provided for by law for DWQP payments if all the eligibility (2) Certification of the total number and approved by the Deputy requirements of this subpart are met and and location of acres planted to durum Administrator. Such unpaid claims will the requirements in part 1400 of this wheat on which an eligible fungicide be considered, as to any unpaid amount, chapter that apply to minor children are was applied specifically to control void and nonpayable. met. Fusarium head blight; (d) A person or entity determined to (3) Certification of the date durum § 1413.108 Payment calculation. be a foreign person under part 1400 of wheat, on which an eligible fungicide (a) Subject to the availability of this title is not eligible to receive was applied specifically to control DWQP funds, the payment to an eligible benefits under this subpart, unless that Fusarium head blight, was planted; producer will be the result of adding person provides land, capital, and a (4) Certification of the type of eligible (adjusted for the producer’s share of the substantial amount of active personal fungicide applied to acres certified as crop): labor in the production of crops on such planted to durum wheat; (1) The lesser of: farm. (5) Certification of the date eligible (i) The result of multiplying the (e) State and local governments and fungicide was applied to acres certified number of acres certified by the their political subdivisions and related as planted to durum wheat; producer as planted to durum wheat on agencies are not eligible for DWQP (6) Documentation providing which an eligible fungicide was applied, payments. adequate proof, as determined by FSA, during the flowering stage, times the per (f) To be considered an eligible of the producer’s actual cost of acre national fungicide acquisition fungicide under this subpart, the purchasing and applying eligible payment rate as set by the Deputy fungicide must be: fungicide to acres certified as planted to Administrator; or (1) Registered with the U.S. durum wheat for one treatment; and (ii) Fifty percent of the producer’s Environmental Protection Agency, as (7) Any other documentation as actual cost of purchasing eligible required under the Federal Insecticide, determined by FSA to be necessary to fungicide for acres certified as planted Fungicide, and Rodenticide Act make a determination of eligibility of to durum wheat and treated for the (FIFRA), unless exempt from FIFRA the producer. applicable crop year in a manner that requirements; (d) The producer requesting benefits would otherwise generate a payment (2) In compliance with State pesticide under this program certifies the under paragraph (a)(1)(i) of this section; regulations, if applicable, in the State in accuracy and truthfulness of the plus which benefits are being requested; and information provided in the application (2) The result of multiplying the (3) Applied specifically to control as well as any documentation filed with number of acres certified as planted to Fusarium head blight on acres certified or in support of the application. All durum wheat on which an eligible as planted by the producer to durum information provided is subject to fungicide was applied during the wheat for the applicable crop year. verification by FSA. flowering stage, times the State (g) CCC will provide program benefits (e) Data furnished by the producer application per-acre payment rate set by to reimburse eligible costs for a will be used to determine eligibility for the State committee, with such maximum of one fungicide treatment, program benefits. Furnishing the data is application payment not to exceed 50

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percent of the actual application cost (b) Any funds disbursed pursuant to title (but nothing in the regulations for certified to by the producer. this subpart to any producer engaged in this program will limit the ability of the (b) The national fungicide acquisition a misrepresentation, scheme, or device, National Appeals Division to decide its payment rate set by the Deputy must be refunded with interest together own jurisdiction under part 11). Such Administrator will be based on 50 with such other sums as may become determinations include, but are not percent of the national average cost of due and all charges including interest limited to, application periods, eligible fungicide (only including the will run from the date of disbursement deadlines, crop years, prices, general cost of the chemical itself), applied to of the CCC funds. Any producer statutory or regulatory provisions that one acre of durum wheat for the engaged in acts prohibited by this apply to similarly situated producers, applicable crop year. section and any producer receiving national average payment prices, and (c) The State application payment rate payment as specified in this subpart set by the State committee will be based payment factors established by CCC for will be jointly and severally liable with DWQP for which this subpart applies or on 50 percent of the State average cost other persons or producers involved in similar matters requiring CCC of applying an eligible fungicide to one such claim for payment for any refund determinations. acre of durum wheat for the applicable due as specified in this section and for crop year. related charges. The remedies provided § 1413.113 Deceased individuals or § 1413.109 Refunds, joint and several in this subpart will be in addition to dissolved entities. liability. other civil, criminal, or administrative remedies that may apply. (a) Payment may be made for an (a) Excess payments, payments eligible application on behalf of an provided as the result of erroneous § 1413.111 Miscellaneous provisions. eligible producer who is now a deceased information provided by any person, or (a) Other interests. Any payment to individual or is a dissolved entity if a payments resulting from a failure to any producer under this part will be comply with any requirement or representative who currently has made without regard to questions of title condition for payment in the authority to enter into a contract on under State law, and without regard to application or this subpart, must be behalf of the producer signs the any claim or lien against the refunded to CCC. application for payment. commodity, or proceeds, in favor of the (b) A refund required as specified in (b) Legal documents showing proof of owner or any other creditor except this section will be due with interest authority to sign for the deceased from the date of CCC disbursement and agencies of the U.S. Government. (b) Assignments. Any producer individual or dissolved entity must be otherwise determined in accordance provided. with paragraph (d) of this section and entitled to any payment may assign any late payment charges as provided in part payment(s) in accordance with (c) If a producer is now a dissolved 1403 of this chapter. regulations governing the assignment of general partnership or joint venture, all (c) Persons signing an application for payments in part 1404 of this chapter. members of the general partnership or payment as having an interest in an (c) Offsets. CCC may offset or joint venture at the time of dissolution operation will be jointly and severally withhold any amount due to CCC from or their duly authorized representatives liable for any refund and related charges any benefit provided under this subpart must sign the application for payment. found to be due as specified in this in accordance with the provisions of section. part 1403 of this chapter and part 792 § 760.114 Records and inspections. of this title. (d) Interest will be applicable to any (a) Any producer receiving DWQP refunds required as specified in parts (d) Violations of highly erodible land and wetland conservation provisions. payments, or any other legal entity or 792 and 1403 of this title. Such interest person who provides information for the will be charged at the rate that the U.S. The provisions of part 12 of this title apply to this subpart. That part sets out purposes of enabling a producer to Department of the Treasury charges CCC receive a DWQP payment, must: for funds, and will accrue from the date certain conservation requirements as a CCC made the erroneous payment to the general condition for farm benefits. (1) Maintain any books, records, and date of repayment. (e) Violations regarding controlled accounts supporting the information for (e) CCC may waive the accrual of substances. The provisions of § 718.6 of 3 years following the end of the year interest if it determines that the cause of this title, which generally limit program during which the request for payment the erroneous determination was not payment eligibility for persons who was submitted, and have engaged in certain offenses with due to any action of the person, or was (2) Allow authorized representatives beyond the control of the person respect to controlled substances, will apply to this part. of USDA and the U.S. Government committing the violation. Any waiver is Accountability Office, during regular at the discretion of CCC alone. § 1413.112 Appeals. business hours, to inspect, examine, and § 1413.110 Misrepresentation and scheme (a) Appeals. Appeal regulations set make copies of such books or records, or device. forth at parts 11 and 780 of this title and to enter the farm and to inspect and (a) In addition to other penalties, apply to determinations made under verify all applicable acreage in which sanctions, or remedies as may apply, a this subpart. the producer has an interest for the producer will be ineligible for payment (b) Determinations not eligible for purpose of confirming the accuracy of through the DWQP if the producer is administrative review or appeal. CCC information provided by or for the determined by CCC to have: determinations and policies that are not producer. limited to a specific individual (1) Adopted any scheme or device (b) [Reserved] that tends to defeat the purpose of the producer’s application are not to be program, construed to be individual program (2) Made any fraudulent eligibility determinations or adverse representation, or decisions and are, therefore, not subject (3) Misrepresented any fact affecting a to administrative review or appeal program determination. under 7 CFR part 11 or part 780 of this

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Subpart B [Reserved] legal questions concerning this final G. Availability of Rulemaking Documents rule contact Robert Hawks, Office of H. Small Business Regulatory Enforcement Subpart C [Reserved] Chief Counsel, (AGC–240); Federal Fairness Act Aviation Administration, 800 I. Executive Summary Independence Avenue, SW., Signed in Washington, DC on July 14, The FAA estimates that 2010. Washington, DC 20591; Telephone: approximately one-third of the 357,000 (202) 267–7143; e-mail Jonathan W. Coppess, registered aircraft records it maintains [email protected]. Executive Vice President, Commodity Credit are inaccurate and that many aircraft Corporation. SUPPLEMENTARY INFORMATION: associated with those records are likely [FR Doc. 2010–17636 Filed 7–19–10; 8:45 am] Authority for This Rulemaking ineligible for United States registration. BILLING CODE 3410–05–P The inaccuracies result from failures in The FAA’s authority to issue rules the voluntary compliance based system. regarding aviation safety is found in Although aircraft owners are required to DEPARTMENT OF TRANSPORTATION Title 49 of the United States Code. report the sale of an aircraft, death of an Subtitle I, Section 106 describes the owner, scrapping or destruction of an Federal Aviation Administration authority of the FAA Administrator. aircraft, and changes in mailing address; Subtitle VII, Aviation Programs, many have not. Without owner initiated 14 CFR Parts 13, 47, and 91 describes in more detail the scope of the action, there has been no means to agency’s authority. correct those records. The FAA has been [Docket No. FAA–2008–0188; Amendment This rulemaking is promulgated Nos. 13–34, 47–29, 91–318] asked by government and law under the authority described in enforcement agencies to provide more RIN 2120–AI89 Subtitle VII, Part A, Subpart III, Chapter 441, Section 44111. Under that section, accurate and up-to-date aircraft Re-Registration and Renewal of the FAA is charged with prescribing registration information. This rule is Aircraft Registration regulations considered necessary to intended to support the needs of our carry out this part. In that section, system users. AGENCY: Federal Aviation The changes made by this Final Rule Congress mandated the Administrator Administration (FAA), DOT. provide the FAA Aircraft Registry the modify the system for registering and ACTION: Final rule. tools to improve the currency and recording aircraft necessary to make the accuracy of the Civil Aircraft Registry system more effective in serving the SUMMARY: This final rule amends the database and maintain the improvement needs of its users. The modifications FAA’s regulations concerning aircraft into the future. Re-registration of all described in this amendment include registration. Over a 3-year period, this U.S. civil aircraft over a three year measures to ensure positive, verifiable, rule will terminate the registration of all period will redraw the Civil Aircraft and timely identification of the true aircraft registered before October 1, Register with current data derived from owners of aircraft operated in the 2010, and will require the re-registration recent contact with aircraft owners. national airspace system. Thus, these of each aircraft to retain U.S. civil Additionally, the FAA is enabled to changes are within the scope of the aircraft status. These amendments also cancel the registrations of those aircraft FAA’s statutory authority and are a establish a system for a 3-year recurrent that are not re-registered. These necessary and reasonable exercise of expiration and renewal of registration amendments will also ensure that that authority. for all aircraft issued registration aircraft owners refresh that data by certificates on or after October 1, 2010. Table of Contents providing information on the status of This final rule amends the FAA’s I. Executive Summary of the Final Rule their aircraft at least once every three regulations to provide standards for the years when registration is renewed. The timely cancellation of registration II. Background III. Summary of Comments expected reduction in registration data numbers (N-numbers) for unregistered IV. Discussion of Final Rule error provided by this rule and the aircraft. This final rule makes other A. Aircraft Re-Registration and Periodic corresponding cost of implementation is minor changes to establish consistency Renewal of Registration shown in the table below with estimates and ensure the regulations conform to B. Reminder Notice, Extended Filing for alternate renewal intervals that were statute or current Registry practices. Timeframes, and Online Access C. Triennial Aircraft Registration Report considered. These amendments will improve the This rule also eliminates the present accuracy of the Civil Aviation Registry No Longer Required D. Time Limits for Aircraft in Sale Triennial Aircraft Registration Report database and will ensure that aircraft Reported and Registration Pending Program, provides clear time limits and owners provide information to maintain Status standards for canceling aircraft with accurate registration records. These E. Conforming Amendments registrations that have ended and for amendments respond to the concerns of V. Miscellaneous Comments which no new registration application law enforcement and other government A. Re-Registration and Renewal has been made or completed. It also B. Risks and Disruption agencies to provide more accurate, up- makes several administrative changes to to-date aircraft registration information. C. Fees, User Fees, New Taxes D. Alternatives Suggested by Commenters conform the regulation to statute and DATES: These amendments become VI. Regulatory Notices and Analyses current registration practices. effective October 1, 2010. A. Paperwork Reduction Act An NPRM was published in the FOR FURTHER INFORMATION CONTACT: For B. International Compatibility Federal Register on February 28, 2008 technical questions concerning this final C. Regulatory Evaluation, Regulatory (73 FR 10701), requesting input on these rule contact John Bent, Civil Aviation Flexibility Determination, International goals and the proposed procedures to Registry, AFS–700, FAA Mike Trade Impact Assessment, and Unfunded achieve them. Significant comments Mandates Assessment Monroney Aeronautical Center, 6500 D. Executive Order 13132, Federalism addressed concern that the proposed fee South MacArthur Boulevard, Oklahoma E. Environmental Analysis for registration renewal, which occurs City, OK 73169; Telephone (405) 954– F. Regulations that Significantly Affect every third year, would be increased 4331; e-mail [email protected]. For Energy Supply, Distribution, or Use and used as a device to raise revenue:

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that the recurrent nature of renewal the rule would cause significant new in estimates of the cost of the proposed would create excessive opportunities for costs for owners, operators and rule. This final rule is responsive to administrative failure that would financiers that work with multiple these and other comments as addressed interfere with revenue flights; and that aircraft that had not been accounted for in the discussion that follows.

SUMMARY OF COSTS AND BENEFITS IN MILLIONS OF 2007 DOLLARS [Over 20 years]

Present value Cost of cost Benefit

Re-registration and 3-Year Renewal (Triennial Eliminated) ...... $29.9 $16.3 Reduction in Error Rate by 31%.

Re-registration lowers the error rate 2005.) This program continuously draws from aircraft owners is limited. From from 36.5% to 5.7% for an improvement registration information for combination March 1970 through January 1978, of 31%. with other data, satellite feeds, and registered owners were required to file Renewal every third year maintains radar to develop a display of the an annual report. Beginning in April this improvement. national airspace complete with the 1980, the Triennial Aircraft Registration II. Background registration status of each aircraft that is program required a report from operating on a filed flight plan. Using registered owners when 3 years passed The Aircraft Registration Branch (the this information, appropriate safety, without the occurrence of certain ‘‘Registry’’) is responsible for security, and law enforcement actions aircraft registration activities. Under developing, maintaining, and can be initiated. The development of the both programs, failure to send in the administering national programs for the ADAPT program and other safety- and required report subjected the aircraft’s registration of United States civil security-related programs demand an registration certificate to revocation aircraft. First among these accurate database. under 14 CFR part 13. responsibilities is maintaining the Today, approximately one-third of the While a large portion of aircraft registration database. The database 357,000 registered aircraft have owners have and continue to report identifies each registered aircraft by its questionable registrations. There are changes both independently and in registration number (N-number), its many causes for this large number of response to a report notice, a significant complete description, and the name and potentially inaccurate aircraft records. portion of reports continue to be address of its registered owner. Failure to re-register an aircraft after a returned as undeliverable or not Registration is a prerequisite for sale to a new owner, failure to report the returned at all. Many orders revoking obtaining an airworthiness certificate, death of an owner, failure to report the prior owner’s certificate of and together a registration certificate scrapping or destruction of aircraft, and registration are returned as and airworthiness certificate enable failure to report changes of address undeliverable. Because the new aircraft operation of an aircraft in U.S. and erode the accuracy of the records. A owner could be operating the aircraft on foreign airspace. The FAA uses the requirement for registered owners to an ineffective and revoked certificate, information collected at the time of notify the Registry of these and other the aircraft are kept in the system to registration to communicate safety- registration-related changes has been prevent reassignment of the N-number related information such as part of the registration regulations for to a second active aircraft. Airworthiness Directives to aircraft many years. The number of questionable Notwithstanding administrative owners. Similarly, aircraft records in the registration database modifications to the registration system, manufacturers use this information to grows annually despite these and enforcement efforts, there is an send out safety notices and other requirements. increasing number of registered aircraft information. The FAA relies on the In 1988, the FAA mission was whose status is in question or whose registration database when responding expanded to include providing owner cannot be contacted. With to an overdue flight or downed aircraft assistance to law enforcement agencies approximately one-third of registered report and when enforcing its through the passage of the FAA Drug aircraft assigned a questionable regulations. Law enforcement agencies Enforcement Assistance Act of 1988 (the registration status, the present system of rely on the registration database when Act) (partially codified at 49 U.S.C. indefinite-duration registration investigating improper activities such as 44111). The Act charged the FAA with certificates does not achieve the drug smuggling. The registration making specific modifications to the necessary accuracy and currency of database is used to identify aircraft that registration database to more effectively aircraft registration data. Modifications could be used by U.S. armed forces. It serve the needs of buyers and sellers of to the aircraft registration system must also is a resource for buyers and sellers aircraft, law enforcement officials, and be made to achieve a level of of aircraft and for banks that may other users of the system. The FAA has registration data reliability that meets finance those transactions. addressed most of the issues identified the current and evolving needs of users. The FAA and other government in the Act and improved service to users The FAA has determined that the most agencies are increasingly developing through administrative modifications, effective method for increasing the sophisticated uses that are enabled by technology upgrades, and focused accuracy of its records is the progressing technology. An example is enforcement programs. Access to establishment of limited-duration Automatic Detection and Processing aircraft data and most individual aircraft aircraft registration with clear standards Terminal or ADAPT, a program records is easy and routine. for canceling N-number assignments developed by the FAA Strategic Although the FAA has worked to keep when a registration expires or otherwise Operations Security with the the registration database accurate and ends. The 3-year re-registration period Transportation Security Administration current, the Registry’s ability to get will clear the registration database of (TSA). (See 70 FR 73323, December 9, timely updates of registration changes aircraft with questionable registration.

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Recurrent renewal at regular intervals intervals for all aircraft issued concluded that recurrent registration will maintain the improved accuracy. registration on or after October 1, 2010, expiration and renewal is the only way The NPRM published in the Federal in § 47.40(c). The expiration date to ensure a regular validation of aircraft Register on February 28, 2008 (73 FR printed on the registration certificate of registration status and owner contact 10701) proposed: aircraft registered or re-registered after information. Therefore, as proposed, • Expiration of registration for all October 1, 2010, will be 3 years from the § 47.51 is removed. currently registered aircraft and their re- last day of the month in which Commercial commenters contended registration as scheduled over a 3-year registration or re-registration occurred that the FAA underestimated the costs period; as provided in § 47.40(a) and (b). A to some aircraft owners because aircraft • Recurrent expiration and renewal renewed aircraft registration will expire registration often involves multiple on a 3-year interval of all aircraft 3 years from the previous expiration parties. A high percentage of registrations issued after the effective date in accordance with § 47.40(c). commercial and corporate aircraft, and date of the proposed rule with a Replacement registration certificates a large number of general aviation registration renewal process; issued on or after October 1, 2010, will aircraft, are leased to third parties and • Elimination of the present Triennial display the same expiration date that may be subject to financing agreements. Aircraft Registration Report program; was shown on the replaced registration These commenters stated they would • A 6-month limit on the time an certificate. If the replaced registration need to implement systems to monitor aircraft may remain in the sale reported certificate did not display an expiration the status of aircraft registrations for re- category without an application being date, the replacement certificate will registration and renewal purposes. They made for registration before its display the expiration date indicated in also stated the costs of developing and N-number assignment is canceled; § 47.40 based on the month of issue of maintaining such systems would be • A 12-month limit on the time an the replaced registration certificate. significant. The costs would include the applicant or successive applicants for Replacement certificates are issued after need to hire an aviation professional to registration have to complete the an address update, an N-number advise on, prepare, and file registration registration process, and provisions for change, or the report of a lost or documents. They stated that outside reserving the aircraft’s N-number if the mutilated certificate. A replacement counsel (engaged at a minimum of $350 aircraft is not registered at the end of does not constitute re-registration or per hour) would be required to review this time; and, renewal. filings. Also, significant time would be • Cancellation of the N-number of an Several commenters, particularly spent by the various parties aircraft registered under a Dealer’s aircraft operators and aviation financing communicating with each other and Aircraft Registration Certificate (Dealer’s and leasing companies, expressed with the FAA. Finally, they stated that Certificate), if the Dealer’s Certificate concern over the re-registration and an appropriate employee (such as a has expired and application for periodic renewal of registration. Some mechanic) must place and document the registration has not been made under commenters preferred, as an alternative placement of the registration certificate § 47.31. to the proposal, updating the triennial in the aircraft. The commenters The public comment period closed on program by ‘‘putting teeth’’ into its contended the costs associated with May 28, 2008. Late-filed comments enforcement. This would include taking the actions necessary to comply posted through June 30, 2008 were enforcing the requirement to return the with the regulations can be substantial accepted for consideration. triennial report even when no change for owners, operators, and financial has occurred and imposing fines or institutions dealing with large aircraft III. Summary of Comments canceling registration when there is no fleets and should have been included in The FAA received 94 comments on compliance. The FAA has considered the regulatory evaluation. the NPRM. The commenters consisted these alternatives and has determined The FAA agrees that for certain of aviation industry associations, air they would not resolve the issues aircraft owners, the cost in the NPRM carriers, banks, finance companies, law addressed by this rule. The ‘‘teeth’’ was underestimated. The FAA has firms, and individuals. Most suggested (such as fines or cancellation revised its estimates of recurrent costs to commenters expressed multiple for an owner not replying to the include the time needed to fill out the opinions, concerns, and suggestions, triennial) are the same options available re-registration or renewal application which were often repeated by others. to the FAA today. In appropriate cases, form, time for a legal review before the Common areas of concern are grouped the FAA has and will continue to owner signs the application, time for the owner to receive a registration by subject for response. pursue enforcement actions as provided for in 14 CFR part 13. However, the certificate and forward it to the aircraft IV. Discussion of the Final Rule purpose of this final rule is to maintain operator, and time for the operator to receive and place the registration A. Aircraft Re-Registration and Periodic an accurate registry database, and the certificate in the aircraft. The FAA also Renewal of Registration FAA has determined that re-registration and renewal of all aircraft registrations has included one-time, start-up costs for As proposed in the NPRM, this rule is the most efficient way to accomplish documenting in-house re-registration adopts the expiration and re-registration that purpose. and renewal procedures and the training of all registered aircraft over a 3-year Existing § 47.51 requires the return of of key personnel. period, followed by the expiration and the triennial reports without changes. Costs for actions not directly imposed renewal of aircraft registration at 3-year However, without an effective way of by the rule, such as actions a party intervals. This rule establishes the dealing with reports that were not might take for their own convenience or expiration of registration for all aircraft returned or returned as undeliverable, preference, were not included. Among registered before October 1, 2010, and the requirement became an unnecessary these were costs for hiring outside provides for the re-registration of all expenditure of resources for both the personnel to interpret the new rule or aircraft over a 3-year period according to FAA and the public. Consequently, the assist with re-registration and renewal the schedule provided in § 47.40(a)(1). It instructions on the triennial report processing and costs for establishing also establishes the recurrent expiration stated that return was unnecessary if no tracking systems. These were classified and renewal of registration at 3-year change had occurred. The FAA has as optional tools to assure compliance

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that are chosen by the owner or other Registry Web site also will show the include the additional operating and parties but not directly required by the expiration date for individual aircraft start-up cost addressed in the previous rule. Many operations already have a and list aircraft that are pending re- paragraph. Each scenario starts with the tracking system for maintenance or registration or renewal. Most 3-year re-registration followed by 3-, scheduling aircraft. These systems could importantly, aircraft owners who keep 5-, and 7-year renewal cycles without a be modified or adapted to help maintain their registration address current will triennial program. The chart that aircraft registration by those who choose receive two timely reminder notices follows shows the comparative costs to use this method. New registration before the scheduled expiration date of and error rates achieved by these certificates will have the expiration their aircraft’s registration. scenarios. dates printed on them to inform the The FAA recalculated the three 20- pilot of the approaching expiration. The year scenarios presented in the NPRM to

ESTIMATED COSTS AND ERROR RATES FOR RE-REGISTRATION AND RENEWAL [Over 20 years]

Inaccurately Options Cost Present value Error rate registered cost (percent) aircraft

Current Program ...... $8,361,100 $4,428,900 36.5 132,100 Re-registration and 7-Year Renewal (Triennial Eliminated) ...... 7,498,100 5,564,300 21.7 68,900 Re-registration and 5-Year Renewal (Triennial Eliminated) ...... 13,806,600 8,512,700 12.5 37,600 Re-registration and 3-Year Renewal (Triennial Eliminated) ...... 29,946,000 16,264,900 5.7 18,800

After comparing the results of these Another commenter suggested a 7-year scheduled expiration date to allow for scenarios, the FAA has determined the interval to align with aging aircraft processing the applications and mailing best balance between cost and improved inspections. the new certificates. Applications sent accuracy is provided by the 3-year re- The FAA has considered the after the filing window closes will still registration followed by 3-year renewal recommended renewal intervals. be processed; however, due to cycles and no triennial program. However, these events do not relate to, processing and mailing times, the Overall, questionable or erroneous or further the goal of, improving the aircraft may be without authorization to registrations are expected to change accuracy of registration information. It operate until registration is completed. from the current total error of is impractical to tie the renewal term to Section 47.40(a)(1) contains a chart with approximately 36.5% to a projected financial events over which the FAA the schedule established for re- total error of approximately 5.7%. While has no control or scheduled inspections registration. The Registry will post lists the alternative options cost less, the that may vary be aircraft. However, the on its Web site showing aircraft as they projected total error rate for each is FAA does recognize that regular move through the various stages of re- significantly higher than the 3-year renewal creates a regulatory obligation registration and renewal. These changes renewal option. The Regulatory that, if missed, could lead to the should help owners keep their aircraft Evaluation contains a detailed temporary grounding of an aircraft. To continuously registered and help keep discussion of how costs were reduce the potential for these events to other interested parties informed about determined with an explanation of the occur, the FAA is implementing several the registration status of those aircraft. calculations behind these scenarios. procedural safeguards introduced in the In the NPRM, the FAA proposed Re-registration of all aircraft and following discussion. extending expiration dates past the periodic renewal of registration will regulatory expiration date if the FAA or B. Reminder Notices, Extended Filing result in a more accurate database that applicant were unable to complete the Timeframes, and Online Access will benefit all users. Law enforcement renewal process in a timely manner. and security agencies will have access The Registry will send owners two The FAA has concluded that this to more accurate registration records, reminder notices rather than a single process would be complicated and which should increase their reminder as proposed in the NPRM. The costly for both aircraft owners and the effectiveness in accomplishing their first reminder notice will be sent 180 Registry. The FAA has determined that missions. The FAA and manufacturers days before a registration is scheduled moving the first reminder notice and the will realize cost savings when mailing to expire. This is 60 days earlier than filing window forward by 2 months and emergency airworthiness directives, the 120 days proposed in the NPRM. using this additional time for safety notices, and surveys to aircraft The reminder will provide basic application processing and certificate owners. More reliable notification instructions and identify the aircraft, its delivery is a better solution. The earlier regarding safety issues should improve expiration date, and the 3-month filing filing and additional 2 months for aviation safety. window during which a registration or processing provides adequate time for a Commenters expressed concern over renewal application should be timely applicant to receive a new the opportunity re-registration and submitted. Filing the application within registration certificate. The process periodic renewal creates for the assigned window will enable the adopted by this final rule will reduce administrative error that could ground new registration certificate to arrive the uncertainty about registration an aircraft. They believe a renewal before the old certificate expires. The certificate arrival and the potential interval of 3 years increases this risk. second reminder notice will be sent at burden of coordinating extensions that Some commenters suggested a 5-year the end of the filing window to owners the proposed process would have interval to coincide with fractional who have not yet re-registered or created. contracts or to match Uniform renewed registration. The filing window The earlier reminder notice and Commercial Code continuation filing. will close 2 months prior to the additional processing time also respond

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to requests from a few commenters who cannot be made online. However, future A correct address on file will ensure suggested a temporary operating online submission is not prohibited by that the reminder letters will be sent to authority for use with re-registration the regulatory text, and we are exploring the aircraft owner and avoid delays and and renewal applications. The FAA options for future acceptance of possible loss of registration. There is no permits temporary operation through registration information electronically. fee for updating an address or other the use of the second or ‘‘Pink Copy’’ of Regardless of whether information is information, like a name change, and it the application for registration for a received electronically or through a can be done at any time during or reasonable period of time following a paper-based method, address updates independent of the registration process. transfer of ownership. Because of and other changes also require review C. Triennial Aircraft Registration Report statutory limitations, this type of and action by an examiner, so cost No Longer Required temporary authority cannot be used for savings to the Government in these re-registration and renewal because situations would be minimal or In the NPRM, the FAA proposed to these events are not part of a transfer of nonexistent. remove § 47.51 and eliminate the ownership. Provided an owner files an The changes from the proposed rule requirement for aircraft owners to application for re-registration or renewal discussed to this point extend the complete and return a Triennial Aircraft in a timely manner during the re- timeframes and simplify the procedures Registration Report. This proposal is registration and renewal window, an of the re-registration and renewal adopted without modification in this interval of not less than two months will process to the benefit of owners, final rule. The re-registration and remain on the old certificate. This is operators, and the FAA. When these renewal requirements adopted in this sufficient time for an application to be elements of the rule are pulled together final rule eliminate the need for the processed and a certificate issued and re-registration and renewal will operate triennial program. delivered. similarly to the following example. D. Time Limits for Aircraft in Sale For the purpose of re-registration, an The FAA planned to use the Aircraft Reported and Registration Pending aircraft registration certificate that does Registration Application, AC Form Status 8050–1 as the application form for not contain an expiration date and was aircraft re-registration. To avoid issued in March of any year has an Accuracy and usability of the confusion between the normal assigned expiration date of March 31, database require eliminating aircraft registration process with its temporary 2011, as described in § 47.40 of this from questionable registration statuses operating authority and the re- rule. This example also applies to such as ‘‘Sale Reported’’ or ‘‘Registration registration process, the Aircraft renewal of an aircraft registration Pending.’’ Approximately 17,000 aircraft Registration Application, AC Form certificate issued with an expiration are reported as sold and have remained 8050–1 will not be used for re- date of March 31st . On or about October in a ‘‘Sale Reported’’ status for more than registration. A separate application form 1, the first reminder notice will be sent 6 months. Their registration has ended, has been developed and will be to the aircraft owner at the address of but without standards for canceling the available from the Registry at its Web record. The notice will remind the assignment of an aircraft registration site, http://registry.faa.gov/ owner of the pending expiration and number, the aircraft remain in the renewregistration. Proposed regulatory announce that the 3-month filing database. With a registration number language has been changed to keep the window will run from November 1st still assigned, ‘‘Sale Reported’’ aircraft two processes separate. through the last day of January. The could operate under ‘‘Pink Copy’’ The FAA proposed to require paper notice will include a unique passcode temporary authority at any time if an forms for all re-registration and to allow for use with online filing that will be application for registration is made. Due online renewal application when no valid until the close of the assigned to normal processing delays, it cannot changes were necessary. Several filing window. It will also provide be known to a system user what the commenters called attention to the information for both online and paper actual status is. Accordingly, ‘‘Sale convenience and savings that could be form filing. A printable form will be Reported’’ aircraft are in a perpetually achieved with both online re- available online and from the Registry. questionable status. registration and renewal. One The additional 2 months provided for The FAA proposed to implement commenter believed that completing the application processing and certificate clear standards for the cancellation of application electronically could save delivery run from February 1st through registration number assignments from about 25 minutes, providing March 31st. Timely applications, aircraft with ineffective registration. The convenience for owners. Others pointed meaning those received at the Registry basis for these standards is underscored out the savings in time and costs for the during the filing window, will be in proposed § 47.15(i). When the FAA if applications could be processed processed and issued with sufficient ownership of an aircraft is transferred, electronically. time for the registration certificate to its registration is no longer effective, The FAA agrees that online re- arrive well before expiration on the last and the FAA may cancel the registration and electronic processing day of March. Re-registration and corresponding assignment of could reduce costs, but only when there renewal applications that report updates registration number. To establish clear are no changes to be made to the current to registration information or are filed time periods in which to complete the registration information. Accordingly, after the filing window closes must be registration of a transferred aircraft, the rule provides for both online re- made using the paper application. Filing proposed § 47.15(i) set forth timelines registration and renewal when no after the end of the 3-month window for cancellation of the assignment of changes are required. Extending the creates the possibility the new registration number in three ownership online option to those aircraft with certificate will arrive after the old transfer scenarios. The FAA will cancel information changes to report would be certificate expires. An owner who has the assignment of registration number if convenient for owners. However, the allowed registration to expire may apply 6 months have passed since notification FAA currently cannot process these for registration in accord with § 47.31, to the FAA of transfer and no information updates electronically. by submitting an Aircraft Registration application for registration has been Therefore, at this time, re-registration or Application, AC Form 8050–1 and the filed. The FAA will cancel the renewal applications with updates registration fee identified in § 47.17. assignment of registration number if 1

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year has passed since the application for the first aircraft is still operating. The 5- or renewal is accomplished in a timely registration was made, but the applicant year hold also is responsive to requests manner. or successive applicants have failed to from law enforcement agencies. The aircraft registration regulations meet the registration requirements of Removing the N-numbers of identify the aircraft owner as the this part. The FAA will cancel the unregistered aircraft from service for a responsible party to which the Registry assignment of registration number if 6 few years helps them identify and directs any communication. The FAA months have passed since an aircraft evaluate operating aircraft. cannot justify modifying the current dealer filed evidence of ownership in One commenter asked whether the system to maintain addresses for parties accord with § 47.67 that did not meet requirement to return expired other than the registered aircraft owner. registration requirements, and these registration certificates could be Identifying these other interested parties requirements have remained unmet. modified. The costs to gather and return might require the FAA to perform a title Section 47.15(i) is adopted as proposed these certificates could be excessive for review of each aircraft’s records, which in the NPRM without change. owners or operators with large or contradicts the registered owner’s duty Several commenters thought that international fleets. The FAA agrees to comply with all obligations it may automatic cancellation of registration with this comment and has changed the have under leases, security agreements, numbers for failing to renew or re- language of proposed § 47.41(b). Instead or other contracts. Additionally, a register is a severe penalty. These of returning an expired registration system of secondary addresses would commenters suggested that the system certificate, the holder must destroy it. create a maintenance burden to keep should accommodate the retention of N- A commenter asked why a limit of these addresses current. numbers without the complication of an 120 days was established for use of the One commenter stated that it is not application or fees because it is copy of a completed and returned clear how this proposal would create a expensive to put a new N-number on an Assignment of Special Registration net time savings for any party as the aircraft. Numbers, AC Form 8050–64. This cost/benefit analysis claims. Section 47.15(i) as adopted provides commenter suggested a period of 180 Neither the discussion in the NPRM for the cancellation of an N-number days instead. nor the cost/benefit analysis claimed assignment to an aircraft when This form is issued as authority to that there would be a net time savings registration ends. However, the place a special N-number on a specific for any party. cancellation process is not an automatic aircraft during the next 12 months. One commenter suggested that the action as commenters suggest. When Within 5 days of painting the N-number FAA review the proposal and analyze aircraft registration ends, the Registry on the aircraft, the form is to be its impact on foreign airlines and for will wait 30 days to ensure that any completed with the painting date, conformity with other registration recently received requests from the signed by the owner, and returned to the requirements and commitments, such as owner have been processed. The Registry. The records will then be the Cape Town Convention on Registry will then send a letter about the updated and a new aircraft registration International Interests in Mobile pending cancellation if a good address certificate issued. While waiting for the Equipment. 1 The FAA agrees that U.S. civil aircraft for an owner is on file. The letter will new certificate, the owner is to keep a operated internationally must comply inform the owner that the owner may copy of the form with the old certificate with FAA as well as foreign operational reserve the N-number as provided for in as authorization to operate with the new standards. Leases often state that the newly adopted § 47.15(j) or register the N-number. The new certificate should lessee will comply with applicable aircraft under § 47.31 within 60 days arrive in 60 to 90 days at which time the regulations and laws present and future. from the date of the letter. If a reply is copy of the form loses its authority. The The U.S. aircraft registration certificate not received within 60 days, the aircraft 12-month and 120-day terms are conforms to the model certificate record will be placed in a work packet imposed to establish a specific time provided by the International Civil and then in queue for an examiner to limit in response to requests from law Aviation Organization. The addition of complete cancellation. If a good address enforcement agencies. The FAA chose an expiration date is an enhancement for the aircraft owner is not on file, N- 120 days to allow response time for the over the basic requirement. This number cancellation will be scheduled occasional undelivered certificate. difference provides more confidence to for no sooner than 90 days from the date Given the time periods required to foreign officials that the aircraft is of expiration. During this time, the submit the appropriate documentation properly registered. Validating aircraft will appear on the Registry’s and the standard processing time, 180 registration and placing a renewal webpage list of aircraft pending days is excessive. cancellation. Once cancellation is certificate in a U.S. registered aircraft complete, the N-number will be E. Conforming Amendments operated in another country has little unavailable for assignment for a period Since this rule eliminates § 47.51, the chance of conflicting with international of 5 years in accord with § 47.15(j). rule includes conforming amendments commitments. This rule has no effect on The 5-year hold is related to both to §§ 13.19 and 13.27 to remove the the Cape Town Convention. safety and customer service. Many references to § 47.51. This rule also B. Risks and Disruption aircraft that may be canceled from the includes a conforming amendment to Many commenters expressed concern registration database belong to owners § 91.203(a)(2) to eliminate the reference with the time, personnel, and who have been out of contact with the to the ‘‘pink copy’’ of the Aircraft administrative costs associated with Registry. These aircraft may be in use or Registration Application. may return to operational status during implementing the rule as proposed. the next few years. It would be unwise V. Miscellaneous Comments These commenters thought the increase in workload at the Registry would result to release an N-number for use on a A. Re-Registration and Renewal second aircraft when there is a chance in critical backlogs that would One commenter suggested sending negatively affect both normal and rule- 1 The Registry has a status it assigns to aircraft additional notices to an aircraft’s lessee, related work. records that have had mail returned as secured party, or operator as known The FAA understands that confidence undeliverable. parties that could ensure re-registration in the success of this final rule rests on

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the ability of the Registry to perform interest has priority over any other will have sufficient time to obtain a re- without excessive backlogs. A portion of interest subsequently registered and registration or renewal certificate and the new work will be offset by the over an unregistered interest.’’ The forward it to the lessee for placement in elimination of the triennial report continued priority of an interest the aircraft before the old certificate program. Recent staffing changes and established by registering that interest expires. upgrades to the electronic documents with the International Registry is not processing systems will help streamline dependent upon continued United C. Fees, User Fees, New Taxes the new workload. Additionally, online States civil aircraft registration. For Several commenters saw this ‘‘no-change’’ re-registration application aircraft not covered by the Cape Town rulemaking as an excuse to collect a filing and fee payments will be Convention, security interests properly recurring user fee or tax. Others available. No critical backlogs in re- filed and recorded at the FAA’s Aircraft acknowledged that the current $5 registration, renewal, or normal Registry are arguably provided registration fee is too low. Some workload are expected as a result of this perpetual validity without further contended the $45 and $130 fees final rule. recording. Registration expiration does proposed in the FAA Reauthorization Several lessees commented that not change the ownership or otherwise bill were too high, arguing that an lenders might modify contract affect interests in an aircraft, but private equitable fee would be lower. Some covenants to require additional reports contract terms may affect those express concern the $130 fee would and assurances, or possibly withdraw interests. The records for all aircraft that apply every 3 years, claiming that fee is from lending due to the real or are currently on, or have been on, the too burdensome. One commenter saw perceived increase in uncertainty United States aircraft registry are the registration fee as a penalty for those created by the proposed rule. permanent records and will remain who are late in meeting the deadline for This final rule creates certainty in the available for review regardless of re-registration. Another commenter registry database. Lenders, insurers, and registration status. offered that the full costs of aviation other interested parties will now be able Several commenters stated that need to be assumed by those rich to verify whether the aircraft owner is expired registration could leave an enough to buy and fly planes, not the complying with any registration terms aircraft without insurance coverage general taxpayers. and conditions contained in those protecting its owner, lenders, lessee, The NPRM proposed a $5.00 re- private contracts. The FAA believes this and passengers. Commenters suggest registration and renewal fee. This is a rule will not be a factor in lenders that if an aircraft registration new and recurring fee which matches deciding whether to finance aircraft inadvertently expires, the insurance the current registration fee, even though transactions. Verifying or demonstrating company might take the position that all it is less than the estimated direct cost successful re-registration or renewal or some coverage does not apply. of processing re-registration and may be done using the searchable The FAA is aware that the renewal renewal actions. The Federal Aviation aircraft information feature on the FAA requirements of the final rule create a Administration Reauthorization bill Web site. The display for each aircraft recurring event with which an aircraft (H.R. 915), if enacted as passed by the will show the issue date for its owner may fail to comply. The certificate as well as the next expiration additional reminder notice and House of Representatives on May 21, date. Owners can download the enhanced registration information 2009, will provide the authority to registration database and create reports available on the Registry Web site increase registration-related fees. The or populate their own fleet management should reduce the likelihood of an projected fees are higher than current databases. Reports could then be inadvertent failure to maintain fees but reflect only the direct and transmitted to a lender. With this registration. Aircraft owners who keep applicable indirect unit costs of the information available on the Web site, their addresses up-to-date, respond FAA Registry’s Aircraft Registration and the 180-day and 60-day notices of promptly to the reminder notices, and Branch. The $130 registration fee expiration sent to the aircraft owner, alert their pilots not to operate aircraft projected in the legislation would not investor confidence in the U.S. aviation with expired certificates should avoid apply as the fee for re-registration or industry should remain essentially operating without current registration. renewal. If estimated by the same unchanged by the implementation of A large number of commenters method used for the reauthorization bill, this final rule. thought that a lessor, particularly a the fee for re-registration and renewal Several commenters stated that ‘passive’ owner-trustee lessor for would be about $45. Neither the expired registration could result in multiple aircraft, could become liable to reauthorization bill, nor the NPRM, litigation because the ownership of the the lessee and investors if the lessor proposed a registration fee that includes aircraft could be questioned. failed to obtain renewal certificates and a tax, user fee, or charge to generate Specifically, these commenters were provide them to a lessee in time to place revenue for purposes other than concerned that security interests filed them into the aircraft before expiration. maintaining an accurate aircraft against the aircraft could be held invalid The lessor also might have difficulty registration database. or subordinate, thus exposing banks and collecting any renewal fees fronted for Two commenters contended the other lenders to economic losses. its lessee. increase in registration and renewal fees The FAA has determined this final As stated in 49 U.S.C. chapter 441, might raise the cost of learning to fly rule will have no impact on priorities only the owner of an aircraft is eligible beyond the means of some students or established by recording those interests to apply for registration. An owner’s otherwise discourage individuals from at the FAA’s Aircraft Registry. The choice to assume a passive role does not flying. United States ratified the Cape Town relieve it of its duties to comply with all The FAA does not believe that these Convention which, in addition to other applicable registration regulations. The higher fees would cause students not to items, established an International FAA cannot justify tailoring the be able to learn to fly. Because this fee Registry for registering covered interests registration regulations to accommodate would be paid by aircraft owners, the in most commercial-sized aircraft. owners who choose to assume a passive costs could be prorated among flight Article 29 of the Cape Town Convention role. As discussed previously, the FAA instruction sessions. Costs for each firmly establishes that ‘‘a registered has modified this final rule so an owner student pilot would then be negligible.

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One commenter proposed a sliding pilot owns, the FAA updates both the registries, which is operationally scale for people who have more than airmen and aircraft databases. Similarly, impractical. one aircraft. Another mentioned that the Web page for Airmen Certification There were a few suggestions that these fees would affect general aviation address updates has a reminder message proposed exempting general aviation more severely than airlines. This same for pilots to also update any affected aircraft, because ‘‘they are too small to commenter notes that the registration aircraft records with a link to be a security risk’’ or ‘‘terrorists use big fee for cars is reduced as the car ages. instructions on how to do this. The airplanes.’’ Another requested the registration fee be Registry accepts and processes address The FAA does not agree. Large aircraft tied to the aircraft’s certificated gross updates whenever they are reported. are operated as general aviation aircraft weight or type certification. Extending the timeframe from 30 to 90 and all aircraft, regardless of size, are The fees discussed are based on the days would not lower the incidence of important enough to be furnished costs to process aircraft registration, re- bad addresses on file. It could however, current safety information. Also, many registration, or renewal. These costs are lower the perception that it is important small and medium-sized aircraft have the same for all aircraft. Therefore, the to promptly report address and other been found suitable for drug running use of sliding scales, number of aircraft registration changes. and similar activities of interest to law owned, weight, type, age, or value of an Several commenters suggested the enforcement agencies. aircraft to determine a fee would be FAA should capture address changes Two commenters requested flexibility inconsistent with the cost recovery from maintenance forms, DOT Form in choosing renewal dates. nature of the fee. 6410, the State Registries, the Airmen This suggestion was not accepted. Many commenters characterized the database, and from spot checks Allowing the choice of renewal date proposed rule as, ‘‘penalizing the law conducted by Airworthiness Inspectors. would unnecessarily complicate both abiding citizens who provide the The Registry has routinely made use the workflow of registration renewal information required by the of alternate resources to locate possible and the overall management of the Government.’’ They suggest that the current addresses. A few of these program. Keeping renewal dates linked FAA penalize those who do not comply include the Airmen Certification files, to an aircraft’s registration date ensures and raise revenue through punitive the U.S. Postal Service Change of that the Registry’s workload will occur actions focusing on the noncompliant Address database, returned surveys, and evenly through the year eliminating parties. airworthiness directive forms. The potential recurring seasonal backlogs. The FAA does not seek to penalize Registry uses addresses from these One commenter asked the FAA to the innocent and appreciates those alternate sources to contact aircraft drop enforcement of the recent change aircraft owners who have made a owners and ask them to verify the to Section 47.41(b)(3), which requires conscientious effort to promptly report correct registration address. It should be return of registration certificates within any changes in their addresses or the noted that while the FAA may be able 21 days of termination of registration. statuses of their aircraft. As discussed to locate an aircraft’s registered owner, This requirement creates a labor- earlier, many changes go unreported changes to the registration information intensive chore when a fleet of aircraft each year. In light of the arguments maintained on their aircraft can be changes hands. presented in the NPRM and this final authorized only by the owner. The FAA rejects the commenter’s rule, recurrent expiration and renewal A few commenters suggested that a suggestion. The 21 days allowed for the of aircraft registration is the only title system for aircraft would provide return of an ineffective registration identified option that can clear better information. certificate provides a definite and accumulated error from the registration The commenters did not offer any reasonable timeframe to take this action. records and maintain it at an acceptable insight into how a title system would However, to avoid creating any level. provide better information than the additional burden, this final rule has existing Certificate of Registration changed § 47.41(b)(3) to direct the D. Alternatives Suggested by system as modified by this final rule. holder to destroy an expired registration Commenters The FAA is authorized to modify its certificate rather than return it to the Several commenters suggested that system to include a system of titling FAA. registration is or can be inspected as aircraft. (See 49 U.S.C. 44111(c)(1).) One commenter suggested moving the part of an aircraft’s annual inspection. However, the costs of converting to a ‘‘Sale Reported’’ time limit from Only the aircraft owner has the titling system would likely far outweigh § 47.15(i)(4) to § 47.35, Aircraft Last knowledge sufficient to review, update, any benefits that would be derived. Previously Registered in the United and affirm the validity of an aircraft’s Even with a titling system, some form of States. This would enable a new owner registration information. Therefore, the initial and periodic updating of to see at a glance what their certificate FAA has concluded that it is information would still be necessary to requirements are. inappropriate to include verification of obtain and maintain the level of The FAA has determined that registration as part of an annual accuracy this final rule will provide. § 47.15(i), which addresses the 6-month inspection, which may not involve the Several commenters suggested interval between filing an aircraft ‘‘Sale participation of the aircraft owner. exempting aircraft documented on Parts Reported’’ notice and N-number One commenter suggested a one-stop 121 and 135 maintenance certificates or cancellation, is in the appropriate FAA address change program, and operated by Fractional or Flight location. Section 47.35 refers the reader another suggested that the time given to Department Operations. to § 47.15 and other sections with which report an address change be extended Exempting any class of registered the new owner must comply. Owners from 30 to 90 days. aircraft would reduce the effectiveness are encouraged to review all of part 47 The FAA processes multiple address of this rule. All categories of aircraft to ensure compliance with registration change requests when these requests contribute to the registration errors this regulations. indicate the offices that need to be rule seeks to correct and prevent from One commenter suggested that an N- notified. For example, if a pilot provides accumulating in the future. Exempting number assignment for aircraft entering an address update and indicates that it any group of registered aircraft would or re-entering the U.S. registration also affects a specific aircraft that the also require the FAA to operate dual system should be valid for 180 days

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instead of the 90 days presently alternative method of establishing times $9.10 plus 1,117,221 times $5.82), allowed. aircraft ownership. for an annual cost of $412,312.97 The FAA does not agree. These One commenter proposed replacing (calculation: $8,246,259.42 divided by assignments are made to aircraft that are the annual inspection requirement for 20). The FAA estimates that it will take entering the U.S. registration system and noncommercial aircraft with an 0.185 hours to process each re- need an N-number to place on their inspection requirement based on a registration form and 0.122 hours to application and supporting combination of flight hours and time process each renewal form. This documentation. Time is needed only for since last inspection. The longest difference comes from the FAA’s entering the N-number on their interval before inspection would be 3 assumption that the percentage of documents, delivering them to the years. This would save time and money owners making application on the Registry, and for registration processing for the many aircraft owners of low use Internet will increase in later years, time. If a delay arises that is out of the aircraft without affecting safety. lowering the processing time for applicant’s control, the applicant may This proposal is beyond the scope of renewals. Over 20 years, the time to apply for an extension. Because these this rule. The commenter may submit process all the re-registration and the aircraft may not operate until a this proposal as its own project in renewals forms equals 35,455.62 registration certificate is issued, these accord with CFR 14 Part 11 Basic (35,455.62 = .185 × 191,652) hours and applications receive priority processing. Rulemaking Procedures. 136,300.98 (136,300.98 = .122 × If a longer lead time is needed, the One commenter representing a 1,117,221) hours respectively, for a total owner is encouraged to reserve an finance company disagreed with the burden of 171,756.60 hours, and an N-number and make application for need for additional disclosures in average annual burden of 8,587.83 assignment at the appropriate time. financing documents. The current level hours. of required exposure allows competitors One commenter, both a pilot and air B. International Compatibility traffic controller, cautions that under no to undercut each others deals, reducing circumstances should a controller be income margins for finance companies. In keeping with U.S. obligations concerned with Part 47, nor should an This proposal is beyond the scope of under the Convention on International aircraft in flight be denied air traffic this rule. Civil Aviation, it is FAA policy to conform to International Civil Aviation service and support. VI. Rulemaking Notices and Analyses This rule concerns re-registration, Organization (ICAO) Standards and registration, and renewal of aircraft A. Paperwork Reduction Act Recommended Practices to the registration certificates. It is not As required by the Paperwork maximum extent practicable. The FAA intended to address air traffic control Reduction Act of 1995 (44 U.S.C. has reviewed the corresponding ICAO issues. 3507(d)), the FAA submitted a copy of Standards and Recommended Practices. Several commenters suggested the the new information collection ICAO Standards set forth a model FAA should require re-registration and requirements in this final rule to the registration certificate. The FAA’s renewal applicants to report total Office of Management and Budget certificate of registration will exceed the airframe flight hours from a specific (OMB) for its review. OMB assigned standards in that model because it will date with an estimated breakdown of OMB Control Number 2120–0729. An include an expiration date. that time by primary mission areas or agency may not collect or sponsor the C. Regulatory Evaluation, Regulatory types of operation. The data collected collection of information, nor may it Flexibility Determination, International would enhance safety research and impose an information collection Trade Impact Assessment, and measurement of safety improvement. requirement unless it displays a Unfunded Mandates Assessment This suggestion is beyond the scope of currently valid Office of Management this final rule. and Budget (OMB) control number. Regulatory Flexibility Determination One commenter, an aviation parts A description of the annual burden is Changes to Federal regulations must provider and Supplemental Type shown below. undergo several economic analyses. Certificate holder, requests that a Description of Respondents: The First, Executive Order 12866 directs that primary key be assigned to aircraft likely respondents to the information each Federal agency shall propose or records available for download from the requirements in this final rule are all adopt a regulation only upon a reasoned Registry’s Web site. This would enable aircraft owners who want to continue determination that the benefits of the data users to track individual records registration past the expiration date on intended regulation justify its costs. through successive downloads even if their Certificate. The FAA estimates the Second, the Regulatory Flexibility Act N-numbers, model names, or serial number of renewals will be 65,719 of 1980 (Pub. L. 96–354) requires numbers change and track which of annually; however, the number of agencies to analyze the economic their products are in use on these aircraft owners and the signature impact of regulatory changes on small aircraft. Similar benefits would be requirements for each aircraft vary entities. Third, the Trade Agreements available to manufacturers, government, depending on the registration type (e.g., Act (Pub. L. 96–39) prohibits agencies and law enforcement agencies individual, partnership, government, or from setting standards that create depending on their applications. co-ownership). unnecessary obstacles to the foreign Although this suggestion is beyond Estimated Burden: Over 20 years, the commerce of the United States. In the scope of this final rule, it will be FAA estimates 1,308,873 forms will be developing U.S. standards, this Trade forwarded to the appropriate FAA processed. Of these forms, 191,652 will Act requires agencies to consider organization for consideration. be for re-registration and 1,117,221 will international standards and, where One commenter proposed revising be for renewal. As described in the appropriate, that they be the basis of § 47.33(a)(2) to allow use of an invoice Regulatory Evaluation, the FAA U.S. standards. Fourth, the Unfunded from a kit manufacturer as evidence of estimates its own processing costs will Mandates Reform Act of 1995 (Pub. L. ownership equal to a bill of sale. be $9.10 and $5.82, respectively, per 104–4) requires agencies to prepare a This proposal is beyond the scope of form. Over 20 years, these costs sum to written assessment of the costs, benefits, this rule. Section 47.33(b) provides an $8,246,259.42 (calculation: 191,652 and other effects of proposed or final

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rules that include a Federal mandate copy of which we have placed in the entities; (5) will not create unnecessary likely to result in the expenditure by docket for this rulemaking. obstacles to the foreign commerce of the State, local, or tribal governments, in the In conducting these analyses, FAA United States; and (6) will not impose aggregate, or by the private sector, of has determined that this rule: (1) Has an unfunded mandate on state, local, or $100 million or more annually (adjusted benefits that justify its costs, (2) is not tribal governments, or on the private for inflation with base year of 1995). an ‘‘economically significant regulatory sector by exceeding the threshold This portion of the preamble action’’ but is a ‘‘significant regulatory identified above. These analyses are ’’ summarizes the FAA’s analysis of the action for other reasons as defined in summarized below. section 3(f) of Executive Order 12866, economic impacts of this final rule. We (3) is ‘‘significant’’ as defined in DOT’s Summary suggest readers seeking greater detail Regulatory Policies and Procedures; (4) Total Costs and Benefits of this read the full regulatory evaluation, a will not have a significant economic impact on a substantial number of small Rulemaking

SUMMARY OF COSTS AND BENEFITS IN MILLIONS OF 2007 DOLLARS [Over 20 years]

Present value Cost of cost Benefit

Re-registration and 3-Year Renewal (Triennial Eliminated) ...... $29.9 $16.3 Reduction in Error Rate by 31%.

This rule will mandate that all aircraft partially offset by the elimination of the enforcement and security agencies rely owners reregister their aircraft over a Triennial Aircraft Registration Program. upon FAA’s aircraft records to identify 3-year period, and then renew these and locate owners of aircraft. Our Cost Assumptions and Sources of registrations on a 3-year basis. Total Information The FAA has concluded that the level estimated costs, over 20 years is $29.9 of accuracy in the system of records million ($16.3 million, present value). • Discount rate—7%; • must be significantly improved in order These costs include both the costs to Period of analysis—2010 through to better serve the needs of the users of aircraft owners as well as processing 2029; • the system as well as support its own costs for the Civil Aircraft Registry and All monetary values are expressed operations. Specifically, benefits will include costs savings from the in 2007 dollars; • accrue from improving the database as elimination of the Triennial Program. The FAA based projections on a well as improving the data collection 1.4% annual growth rate The primary benefit of this • process. The benefits from improving rulemaking will be the increased The FAA will use the following the Registry database include cost accuracy of the records within the unit costs: savings, better service for aircraft Aircraft Registry. Currently, (a) $5—fee per aircraft for both re- owners, and help with law enforcement. approximately one third of registered registration and renewal The benefits to be realized by improving aircraft information is incorrect. The (b) $37.20—hourly rate of an aircraft the data collection process also include FAA has concluded that the level of owner’s time cost savings as well as a more accurate (c) $9.10—FAA processing costs for accuracy in the system of records must response rate. be significantly improved in order to re-registration per applicant better serve the needs of the users of the (d) $5.82—FAA processing costs for Costs of This Rulemaking renewal per applicant system as well as support its own This rulemaking requires that all operations. Benefits will accrue from (e) $1.63—FAA processing costs for the Triennial Program for each notice aircraft owners will have to re-register improving the database as well as their aircraft during a 3-year period, that improving the data collection process. sent (f) $16.80—FAA processing costs for all aircraft registrations will need to be Who is potentially affected by this the Triennial Program per reply renewed every 3 years, and that the rulemaking? present Triennial Program is eliminated Benefits of This Rulemaking in its entirety. Private Sector The primary benefit of this The FAA estimates that There are currently about 357,000 rulemaking will be the increased approximately 244,600 aircraft will each registered aircraft, of which about accuracy of the records within the go through the re-registration process, 241,000 are active aircraft. The FAA Aircraft Registry. Currently, over one and so will be issued a new registration expects about 245,000 aircraft to third of registered aircraft information is certificate. Following re-registration reregister and then, every 3 years, renew incorrect. Inaccurate records have many aircraft will renew their registration their certificate. The FAA also expects negative consequences. For example, every 3 years. In calculating the costs of between an additional 3,424 new FAA uses aircraft records to identify the rule, the FAA counts the number of aircraft to register each year. owners of specific aircraft so that safety aircraft transactions that result from related information, such as either re-registration or renewal. Government airworthiness directives (ADs), can be Moreover, FAA did not include the cost This rule will increase the workload delivered to those owners, but because of normal course of business on the Civil Aviation Registry, which of inaccuracies, many safety-related registrations and the $5 fee because the will have to process an additional 1.3 mailings are returned without delivery. fee is an economic transfer. These costs million renewal and registration Aircraft manufacturers also use aircraft are recognized in a separate section in certificates over a 20-year period. records for the same reasons, to send out the rule but are not included in the total However, this additional work will be safety-related information. Law cost of the rule.

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The FAA estimates that over 20 years an average cost of $8 per year. In therefore, does not have federalism the Registry will process 1.3 million addition, the FAA did not receive implications. certificate actions, composed of re- comments on the regulatory flexibility E. Environmental Analysis registration and renewal. However, the analysis. Therefore, as Administrator of Registry will achieve cost savings with the FAA, I certify that this final rule will FAA Order 1050.1E identifies FAA the elimination of the Triennial not have a significant economic impact actions that are categorically excluded Program. Over 20 years, the rule on a substantial number of small from preparation of an environmental replaces the current system with a 3- entities. assessment or environmental impact year re-registration program, followed statement under the National International Trade Analysis by a 3-year renewal cycle that is Environmental Policy Act in the estimated to cost $29.9 million ($16.3 The Trade Agreements Act of 1979 absence of extraordinary circumstances. million, present value). (Pub. L. 96–39), as amended by the The FAA has determined this Final Regulatory Flexibility Uruguay Round Agreements Act (Pub. rulemaking action qualifies for the Determination L. 103–465), prohibits Federal agencies categorical exclusion identified in from establishing standards or engaging paragraph 312(d) and involves no The Regulatory Flexibility Act of 1980 in related activities that create extraordinary circumstances. (Pub. L. 96–354) (RFA) establishes ‘‘as a unnecessary obstacles to the foreign principle of regulatory issuance that F. Regulations That Significantly Affect commerce of the United States. Energy Supply, Distribution, or Use agencies shall endeavor, consistent with Pursuant to these Acts, the the objectives of the rule and of establishment of standards is not The FAA has analyzed this final rule applicable statutes, to fit regulatory and considered an unnecessary obstacle to under Executive Order 13211, Actions informational requirements to the scale the foreign commerce of the United Concerning Regulations That of the businesses, organizations, and States, so long as the standard has a Significantly Affect Energy Supply, governmental jurisdictions subject to legitimate domestic objective, such as Distribution, or Use (May 18, 2001). The regulation. To achieve this principle, the protection of safety, and does not FAA has determined that it is not a agencies are required to solicit and operate in a manner that excludes ‘‘significant regulatory action’’ under the consider flexible regulatory proposals imports that meet this objective. The executive order because, while a and to explain the rationale for their statute also requires consideration of ‘‘significant regulatory action’’ under actions to assure that such proposals are international standards and, where Executive Order 12866, and DOT’s given serious consideration.’’ The RFA appropriate, that they be the basis for Regulatory Policies and Procedures, it is covers a wide range of small entities, U.S. standards. The FAA has assessed not likely to have a significant adverse including small businesses, not-for- the potential effect of this final rule and effect on the supply, distribution, or use profit organizations, and small determined that it will have only a of energy. governmental jurisdictions. Agencies must perform a review to domestic impact and therefore will not G. Availability of Rulemaking determine whether a rule will have a create unnecessary obstacles to the Documents significant economic impact on a foreign commerce of the United States. You can get an electronic copy of substantial number of small entities. If Unfunded Mandates Assessment rulemaking documents using the the agency determines that it will, the Internet by— agency must prepare a regulatory Title II of the Unfunded Mandates flexibility analysis as described in the Reform Act of 1995 (the Act) requires 1. Searching the Federal eRulemaking RFA. each Federal agency to prepare a written Portal (http://www.regulations.gov); However, if an agency determines that statement assessing the effects of any 2. Visiting the FAA’s Regulations and a rule is not expected to have a Federal mandate in a proposed or final Policies Web page at http:// _ significant economic impact on a agency rule that may result in an www.faa.gov/regulations policies/; or substantial number of small entities, expenditure of $100 million or more 3. Accessing the Government Printing section 605(b) of the RFA provides that (adjusted annually for inflation) in any Office’s Web page at http:// the head of the agency may so certify one year by State, local, and tribal www.gpoaccess.gov/fr/index.html. and a regulatory flexibility analysis is governments, in the aggregate, or by the You can also get a copy by sending a not required. The certification must private sector; such a mandate is request to the Federal Aviation include a statement providing the deemed to be a ‘‘significant regulatory Administration, Office of Rulemaking, factual basis for this determination, and action.’’ The FAA currently uses an ARM–1, 800 Independence Avenue, the reasoning should be clear. inflation-adjusted value of $143.1 SW., Washington, DC 20591, or by This final rule will affect all aircraft million in lieu of $100 million. calling (202) 267–9680. Make sure to owners, through part 47, as all aircraft This rule does not contain such a identify the amendment number or owners will be required to reregister and mandate. The requirements of Title II do docket number of this rulemaking. then periodically renew their aircraft. not apply. Anyone is able to search the There will be a substantial number of electronic form of all comments D. Executive Order 13132, Federalism small entities. However, the cost to received into any of the FAA’s dockets small entities will be negligible. The The FAA has analyzed this final rule by the name of the individual total cost per certificate to an aircraft under the principles and criteria of submitting the comment (or signing the owner is about $24, which includes the Executive Order 13132, Federalism. The comment, if submitted on behalf of an value of time to complete the form plus FAA has determined that this action association, business, labor union, etc.). the $5 registration fee. An aircraft owner will not have a substantial direct effect You may review DOT’s complete will renew his or her certificate, on on the States, or the relationship Privacy Act statement in the Federal average, six more times over a 20-year between the Federal Government and Register published on April 11, 2000 period for a total of seven certificate the States, or on the distribution of (Volume 65, Number 70; Pages 19477– actions. Seven certificate actions will power and responsibilities among the 78) or you may visit http:// result in costs of $168 over 20 years for various levels of government, and, DocketsInfo.dot.gov.

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H. Small Business Regulatory § 13.27 Final order of Hearing Officer in ■ e. § 47.31(a) introductory text Enforcement Fairness Act certificate of aircraft registration ■ f. § 47.43 (b) proceedings. The Small Business Regulatory (a) If, in proceedings under section §§ 47.9, 47.33, and 47.35 [Amended] Enforcement Fairness Act (SBREFA) of 501(b) of the Federal Aviation Act of ■ 9. Amend 14 CFR part 47 by removing 1996 requires the FAA to comply with 1958 (49 U.S.C. 1401), the Hearing the word ‘‘Administrator’’ and adding, in small entity requests for information or Officer determines that the aircraft is its place, the word ‘‘FAA’’ in the advice about compliance with statutes ineligible for a Certificate of Aircraft following places: and regulations within its jurisdiction. If Registration, the Hearing Officer shall ■ a. § 47.9(e) you are a small entity and you have a ■ b. § 47.33(b) and 47.33(d) suspend or revoke the respondent’s ■ question regarding this document, you certificate, as proposed in the notice of c. § 47.35(b) ■ 10. Revise § 47.1 to read as follows: may contact your local FAA official, or proposed certificate action. the person listed under the FOR FURTHER * * * * * § 47.1 Applicability. INFORMATION CONTACT heading at the This part prescribes the requirements beginning of the preamble. You can find PART 47—AIRCRAFT REGISTRATION out more about SBREFA on the Internet for registering aircraft under 49 U.S.C. at http://www.faa.gov/ ■ 4. The authority citation for part 47 44101–44104. Subpart B applies to each regulations_policies/rulemaking/ continues to read as follows: applicant for, and holder of, a Certificate sbre_act/. of Aircraft Registration, AC Form Authority: 4 U.S.T. 1830; Pub. L. 108–297, 8050–3. Subpart C applies to each List of Subjects 118 Stat. 1095 (49 U.S.C. 40101 note, 49 applicant for, and holder of, a Dealer’s U.S.C. 44101 note); 49 U.S.C. 106(g), 40113– 14 CFR Part 13 40114, 44101–44108, 44110–44113, 44703– Aircraft Registration Certificate, AC 44704, 44713, 45302, 46104, 46301. Form 8050–6. Administrative practice and ■ 11. Amend § 47.2 by adding the procedure, air transportation, Part 47—[Nomenclature change] definition of ‘‘Registry’’ in alphabetical Investigations, Law enforcement, ■ 5. Amend 14 CFR part 47 by removing order and by revising paragraphs (2) and Penalties. the words ‘‘FAA Aircraft Registry’’ and (3) of the definition of ‘‘U.S. citizen’’ to read as follows: 14 CFR Part 47 ‘‘FAA Registry’’ wherever they appear and adding, in their place, the word § 47.2 Definitions. Aircraft, Reporting and recordkeeping ‘‘Registry’’. requirements. * * * * * §§ 47.5, 47.7, 47.9, 47.11, 47.35, and 47.37 Registry means the FAA, Civil 14 CFR Part 91 [Amended] Aviation Registry, Aircraft Registration Aircraft. ■ 6. Amend 14 CFR part 47 by removing Branch. the words ‘‘Application for Aircraft * * * * * The Amendment Registration’’ and ‘‘application’’ and U.S. citizen *** (2) A partnership each of whose ■ In consideration of the foregoing, the adding, in their place, the words partners is an individual who is a Federal Aviation Administration ‘‘Aircraft Registration Application, AC citizen of the United States. amends Chapter I of Title 14, Code of Form 8050–1’’ in the following places: ■ (3) A corporation or association Federal Regulations as follows: a. § 47.5(a) ■ b. § 47.7(a) organized under the laws of the United PART 13—INVESTIGATIVE AND ■ c. § 47.9(a) introductory text States or a State, the District of ENFORCEMENT PROCEDURES ■ d. § 47.11 (introductory text) Columbia, or a territory or possession of ■ e. § 47.35(a) introductory text the United States, of which the ■ 1. The authority citation for part 13 ■ f. § 47.37(a)(2) president and at least two-thirds of the continues to read as follows: board of directors and other managing §§ 47.5, 47.7, and 47.11 [Amended] officers are citizens of the United States, Authority: 18 U.S.C. 6002; 28 U.S.C. 2461 ■ 7. Amend 14 CFR part 47 by removing (note); 49 U.S.C. 106(g), 5121–5128, 40113– which is under the actual control of 40114, 44103–44106, 44702–44703, 44709– the words ‘‘Application for Aircraft citizens of the United States, and in 44710, 44713, 46101–46111, 46301, 46302 Registration’’ and ‘‘application’’ and which at least 75 percent of the voting (for a violation of 49 U.S.C. 46504), 46304– adding, in their place, the words interest is owned or controlled by 46316, 46318, 46501–46502, 46504–46507, ‘‘Aircraft Registration Application’’ in persons that are citizens of the United 47106, 47107, 47111, 47122, 47306, 47531– the following places: States. 47532; 49 CFR 1.47. ■ a. § 47.5(c) ■ 12. Amend § 47.3 by: ■ ■ 2. Revise the fourth sentence of b. § 47.7(c)(2) introductory text ■ a. Removing the citation ‘‘§ 47.31(b)’’ ■ paragraph (b) of § 13.19 to read as c. § 47.11(h) where it appears in paragraph (b)(2) and adding in its place the citation follows: §§ 47.5, 47.7, 47.8, 47.11, 47.31, and 47.43 [Amended] ‘‘§ 47.31(c)’’; and § 13.19 Certificate action. ■ b. Revising paragraph (a) to read as ■ 8. Amend 14 CFR part 47 by removing * * * * * follows: the words ‘‘Certificate of Aircraft (b) * * * If the Administrator finds Registration’’ and ‘‘registration § 47.3 Registration required. that any aircraft registered under Part 47 certificate’’ and adding in their place, (a) An aircraft may be registered of this chapter is ineligible for the words ‘‘Certificate of Aircraft under 49 U.S.C. 44103 only when the registration, the Administrator issues an Registration, AC Form 8050–3’’ in the aircraft is not registered under the laws order suspending or revoking that following places: of a foreign country and is— certificate. * * * ■ a. § 47.5(c) (1) Owned by a citizen of the United * * * * * ■ b. § 47.7(d) introductory text States; ■ 3. Revise paragraph (a) of § 13.27 to ■ c. § 47.8(c) (2) Owned by an individual citizen of read as follows: ■ d. § 47.11(e) a foreign country lawfully admitted for

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permanent residence in the United (c) When an agent submits an Aircraft cancellation of a Certificate of Aircraft States; Registration Application, a document Registration, each person who shares (3) Owned by a corporation not a submitted as supporting evidence under title to the aircraft under the citizen of the United States when the this part, or a request for cancellation of arrangement must sign the application, corporation is organized and doing a Certificate of Aircraft Registration, on document, or request. business under the laws of the United behalf of the owner, that agent must— * * * * * States or a State within the United (1) State the name of the owner on the ■ 17. Amend § 47.15 by: States, and the aircraft is based and application, document, or request; ■ a. Removing the word ‘‘identification’’ primarily used in the United States; or (2) Sign as agent or attorney-in-fact on wherever it appears, including the (4) An aircraft of— the application, document, or request; section heading, and adding, in its place (i) The United States Government; or and the word ‘‘registration’’; (ii) A State, the District of Columbia, (3) Submit a signed power of attorney, ■ b. Revising paragraphs (a) a territory or possession of the United or a true copy thereof certified under introductory text, (a)(2), (c), the first States, or a political subdivision of a § 49.21 of this chapter, with the sentence of paragraph (d), and (f); State, territory, or possession. application, document, or request. ■ c. Redesignating the undesignated * * * * * (d) When a corporation submits an paragraph following paragraph (a)(3) as ■ 13. Revise the first sentence of Aircraft Registration Application, a (a)(4) and revising it; and § 47.7(d) introductory text to read as document submitted as supporting ■ d. Adding paragraphs (i) and (j) to follows: evidence under this part, or a request for read as set forth below. cancellation of a Certificate of Aircraft § 47.7 United States citizens and resident § 47.15 Registration number. aliens. Registration, it must— (1) Have an authorized person sign, by (a) Number required. An applicant for * * * * * means acceptable to the FAA, the (d) Partnerships. A partnership may aircraft registration must place a U.S. application, document, or request; registration number (registration mark) apply for a Certificate of Aircraft (2) Show the title of the signer’s office Registration, AC Form 8050–3, under 49 on the Aircraft Registration Application, on the application, document, or AC Form 8050–1, and on any evidence U.S.C. 44102 only if each partner, request; and whether a general or limited partner, is submitted with the application. There is (3) Submit a copy of the authorization no charge for the assignment of numbers an individual who is a citizen of the from the board of directors to sign for United States. * * * provided in this paragraph. This the corporation, certified as true under paragraph does not apply to an aircraft * * * * * § 49.21 of this chapter by a corporate manufacturer who applies for a group of § 47.8 [Amended] officer or other person in a managerial U.S. registration numbers under position therein, with the application, ■ 14. Amend § 47.8(c) by removing the paragraph (c) of this section; a person document, or request, unless— citation ‘‘§ 47.41(a)(5)’’ and adding, in its who applies for a special registration (i) The signer of the application, place, the citation ‘‘§ 47.41(a)(3)’’. number under paragraphs (d) through (f) document, or request is a corporate of this section; or a holder of a Dealer’s § 47.11 [Amended] officer or other person in a managerial Aircraft Registration Certificate, AC ■ 15. Amend § 47.11(b)(1) by removing position in the corporation and the title Form 8050–6, who applies for a the words ‘‘certificate of repossession on of his office is stated in connection with temporary registration number under FAA Form 8050–4’’ and adding, in its his signature; or 47.16. (ii) A valid authorization to sign is on place, the words ‘‘Certificate of * * * * * Repossession of Encumbered Aircraft, file at the Registry. (4) The provisions of paragraph (d)(3) (2) Aircraft last previously registered FAA Form 8050–4’’. in the United States. Unless the ■ 16. Amend § 47.13 by revising of this section do not apply to an irrevocable deregistration and export applicant applies for a different number paragraphs (a) through (f) to read as under paragraphs (d) through (f) of this follows: request authorization when an irrevocable deregistration and export section, the applicant must place the § 47.13 Signatures and instruments made request authorization under the Cape U.S. registration number that is already by representatives. Town Treaty is signed by a corporate assigned to the aircraft on the Aircraft (a) Each person signing an Aircraft officer and is filed with the Registry. Registration Application, and the Registration Application, AC Form (e) When a partnership submits an supporting evidence. If there is no 8050–1, or a document submitted as Aircraft Registration Application, a number assigned, the applicant must supporting evidence under this part, document submitted as supporting obtain a U.S. registration number from must sign in ink or by other means evidence under this part, or a request for the Registry by making a written request acceptable to the FAA. If signed in ink, cancellation of a Certificate of Aircraft that describes the aircraft by make, the Aircraft Registration Application Registration, it must— model, and serial number. must also have the typed or legibly (1) State the full name of the * * * * * printed name of each signer in the partnership on the application, (4) Duration of a U.S. registration signature block. document, or request; number assignment. Authority to use (b) When one or more persons doing (2) State the name of each general the registration number obtained under business under a trade name submits an partner on the application, document, or paragraph (a)(1), (2), or (3) of this Aircraft Registration Application, a request; and section expires 90 days after the date it document submitted as supporting (3) Have a general partner sign the is issued unless the applicant submits evidence under this part, or a request for application, document, or request. an Aircraft Registration Application and cancellation of a Certificate of Aircraft (f) When co-owners, who are not complies with § 47.33 or § 47.37, as Registration, AC Form 8050–3, the engaged in business as partners, submit applicable, within that period of time. application, document, or request must an Aircraft Registration Application, a However, the applicant may obtain an be signed by, or on behalf of, each document submitted as supporting extension of this 90-day period from the person who shares title to the aircraft. evidence under this part, or a request for Registry if the applicant shows that the

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delay in complying with that section is (i) Six months after first receipt of (c) After compliance with paragraph due to circumstances beyond the notice of aircraft sale or evidence of (a) of this section, the applicant for applicant’s control. ownership from the last registered registration of an aircraft last previously * * * * * owner or successive owners, and an registered in the United States must (c) An aircraft manufacturer may Aircraft Registration Application has carry the second copy of the Aircraft apply to the Registry for enough U.S. not been received. Registration Application in the aircraft registration numbers to supply (ii) Six months after evidence of as temporary authority to operate estimated production for the next 18 ownership authorized under § 47.67 has without registration. months. There is no charge for this been submitted, and the applicant has (1) This temporary authority is valid allocation of numbers. not met the requirements of this part. for operation within the United States (d) Any available, unassigned U.S. (iii) Twelve months after a new owner until the date the applicant receives the registration number may be assigned as has submitted evidence of ownership Certificate of Aircraft Registration or a special registration number. * * * and an Aircraft Registration Application until the date the FAA denies the under § 47.31, and the applicant or a application, but in no case for more than * * * * * successive applicant has not met the (f) The Registry authorizes a special 90 days after the date the applicant requirements of this part. signs the application. If by 90 days after registration number change on the (j) At the time an assignment of Assignment of Special Registration the date the applicant signs the Aircraft registration number is cancelled, the Registration Application, the FAA has Numbers, AC Form 8050–64. The number may be reserved for one year in neither issued the Certificate of Aircraft authorization expires one year from the the name of the last owner of record if Registration nor denied the application, date the Registry issues an Assignment a request has been submitted with the the Registry will issue a letter of of Special Registration Numbers unless fee required by § 47.17. If the request for extension that serves as authority to the special registration number is reservation and fee are not submitted continue to operate the aircraft without permanently placed on the aircraft. prior to cancellation, the registration registration while it is carried in the Within five days after the special number is unavailable for assignment aircraft. registration number is placed on the for a period of five years. aircraft, the owner must complete and (2) This temporary authority is not sign the Assignment of Special § 47.16 [Amended] available in connection with any Registration Numbers, state the date the ■ 18. Amend § 47.16(a) by removing the Aircraft Registration Application number was placed on the aircraft, and words ‘‘Dealer’s Aircraft Registration received when 12 months have passed return the original form to the Registry. Certificates’’ and adding, in their place, since the receipt of the first application The duplicate of the Assignment of the words ‘‘Dealer’s Aircraft Registration following transfer of ownership by the Special Registration Numbers and the Certificates, AC Form 8050–6,’’. last registered owner. present Certificate of Aircraft ■ 19. Amend § 47.17 by revising (3) If there is no registration number Registration, AC Form 8050–3, must be paragraphs (a)(4), (a)(5), and (a)(6) and assigned at the time application for carried in the aircraft as temporary adding paragraph (a)(7) as set forth registration is made, the second copy of authority to operate it. This temporary below: the Aircraft Registration Application may not be used as temporary authority authority is valid until the date the § 47.17 Fees. owner receives the revised Certificate of to operate the aircraft. (a) * * * Aircraft Registration showing the new ■ 21. Amend § 47.33 by removing the registration number, but in no case is it word ‘‘identification’’ where it appears (4) Special registration number valid for more than 120 days from the (each number) ...... 10.00 in paragraph (c), and adding, in its date the number is placed on the (5) To change, reassign, or reserve place, the word ‘‘registration’’; and aircraft. a registration number ...... 10.00 revising paragraph (a)(2) to read as * * * * * (6) Replacement Certificate of Air- follows: (i) When aircraft registration has craft Registration ...... 2.00 (7) Re-registration or Renewal Cer- § 47.33 Aircraft not previously registered ended, as described in § 47.41(a), the anywhere. assignment of a registration number to tificate of Aircraft Registration ...... 5.00 an aircraft is no longer authorized for (a) * * * * * * * * use except as provided in § 47.31(c) and (2) Submits with his Aircraft ■ 20. Amend § 47.31 as follows: Registration Application, AC Form will be cancelled: ■ a. Revise paragraph (a)(1) to read as (1) Following the date established in 8050–1, an Aircraft Bill of Sale, AC set forth below; Form 8050–2, signed by the seller, an § 47.40(a)(1) for any aircraft that has not ■ b. Remove the words ‘‘Aircraft Bill of been re-registered under § 47.40(a); equivalent bill of sale, or other evidence Sale, ACC Form 8050–2’’ where they of ownership authorized by § 47.11. (2) Following the expiration date appear in paragraph (a)(2), and add, in shown on the Certificate of Aircraft their place, the words ‘‘Aircraft Bill of * * * * * ■ Registration for any aircraft whose Sale, AC Form 8050–2’’; 22. Revise § 47.39 to read as follows: registration has not been renewed under ■ c. Revise paragraph (c) to read as set § 47.39 Effective date of registration. § 47.40(c); forth below; and (3) Following the expiration date ■ d. Remove paragraph (d). An aircraft is registered on the date shown on the Dealer’s Aircraft The revisions read as follows: the Registry determines that the Registration Certificate, AC Form 8050– submissions meet the requirements of 6, for any aircraft registered under § 47.31 Application. this part. The effective date of Subpart C of this part, when the (a) * * * registration is shown by a date stamp on certificate has not been renewed, and (1) An Aircraft Registration the Aircraft Registration Application, the owner has not applied for Application, AC Form 8050–1, signed AC Form 8050–1, and as the date of registration in accordance with § 47.31; by the applicant in the manner issue on the Certificate of Aircraft or prescribed by § 47.13; Registration, AC Form 8050–3. (4) When ownership has transferred— * * * * * ■ 23. Add § 47.40 to read as follows:

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§ 47.40 Registration expiration and 1, 2010, must be re-registered in 2010, expires on the expiration date renewal. accordance with this paragraph (a). identified in the following schedule that (a) Re-registration. Each aircraft (1) A Certificate of Aircraft corresponds with the month in which registered under this part before October Registration issued before October 1, the certificate was issued.

The owner must apply for re-registration be- If the certificate was issued in: The certificate expires on: tween these dates—to allow delivery of the new certificate before expiration

March of any year ...... March 31, 2011 ...... November 1, 2010 and January 31, 2011. April of any year ...... June 30, 2011 ...... February 1, 2011 and April 30, 2011. May of any year ...... September 30, 2011 ...... May 1, 2011 and July 31, 2011. June of any year ...... December 31, 2011 ...... August 1, 2011 and October 31, 2011. July of any year ...... March 31, 2012 ...... November 1, 2011 and January 31, 2012. August of any year ...... June 30, 2012 ...... February 1, 2012 and April 30, 2012. September of any year ...... September 30, 2012 ...... May 1, 2012 and July 31, 2012. October of any year ...... December 31, 2012 ...... August 1, 2012 and October 31, 2012. November of any year ...... March 31 2013 ...... November 1, 2012 and January 31, 2013. December of any year ...... June 30, 2013 ...... February 1, 2013 and April 30, 2013. January of any year ...... September 30, 2013 ...... May 1, 2013 and July 31, 2013. February of any year ...... December 31, 2013 ...... August 1, 2013 and October 31, 2013.

(2) Each holder of a Certificate of § 47.41 Duration and return of Certificate. owner’s physical address or location. Aircraft Registration, AC Form 8050–3, (a) Each Certificate of Aircraft Upon acceptance, the Registry will issued before October 1, 2010, must Registration, AC Form 8050–3, issued issue, without charge, a revised submit an Application for Aircraft Re- by the FAA under this subpart is Certificate of Aircraft Registration, AC registration, AC Form 8050–1A, and the effective, unless registration has ended Form 8050–3, reflecting the new mailing fee required by § 47.17, between October by reason of having been revoked, address. When a post office box or 1, 2010, and December 31, 2013, canceled, expired, or the ownership is mailing drop is used for mailing according to the schedule in paragraph transferred, until the date upon which purposes, and the registered owner’s (a)(1) of this section. one of the following events occurs: physical address or location changes, (3) A Certificate of Aircraft * * * * * the registered owner must notify the Registration issued under this paragraph (b) * * * Registry in writing of the new address expires three years after the last day of (3) Within 21 days of the termination or location within 30 days. the month in which it is issued. of the registration, by the holder of the ■ 27. Amend § 47.47 by revising the (b) Initial Registration. A Certificate of Certificate of Aircraft Registration in all introductory text of paragraph (a) and Aircraft Registration issued in other cases mentioned in paragraph (a) paragraph (a)(1) as follows: accordance with § 47.31 expires three of this section, except in the case of § 47.47 Cancellation of Certificate for years after the last day of the month in expired certificates, the holder must export purpose. which it is issued. destroy the expired certificate. (a) The holder of a Certificate of (4) If the certificate is not available for (c) Renewal. Each holder of a Aircraft Registration, AC Form 8050–3, return, as directed in paragraph (b) of Certificate of Aircraft Registration, AC or the holder of an irrevocable this section, a statement describing the Form 8050–3, containing an expiration deregistration and export request aircraft and stating the reason the date may apply for renewal by authorization recognized under the certificate is not available must be submitting an Application for Aircraft Cape Town Treaty and filed with the submitted to the Registry within the Registration Renewal, AC Form 8050– FAA, who wishes to cancel the time required by paragraph (b) of this 1B, and the fee required by § 47.17 Certificate of Aircraft Registration for section. during the six months preceding the the purpose of export must submit to ■ 25. Revise § 47.43(b) to read as expiration date. A certificate issued the Registry— under this paragraph expires three years follows: (1) A written request for cancellation from the expiration date of the previous § 47.43 Invalid registration. of the Certificate of Aircraft Registration certificate. describing the aircraft by make, model, ■ 24. Amend § 47.41 by— * * * * * (b) If the registration of an aircraft is and serial number, and stating the U.S. ■ a. Removing paragraphs (a)(2) and invalid under paragraph (a) of this registration number and the country to (a)(4); section, the holder of the invalid which the aircraft will be exported; ■ b. Redesignating paragraph (a)(3) as Certificate of Aircraft Registration, AC * * * * * (a)(2) and paragraphs (a)(5) through Form 8050–3, must return it as soon as ■ 28. Revise § 47.49 to read as follows: (a)(9) as paragraphs (a)(3) through (a)(7); possible to the Registry. ■ c. Removing the semi-colon at the end ■ 26. Revise § 47.45 to read as follows: § 47.49 Replacement of Certificate. of paragraphs (a)(1) through (a)(4) and (a) If the original Certificate of Aircraft adding in their place a period, and § 47.45 Change of address. Registration, AC Form 8050–3, is lost, removing the phrase ‘‘; or’’ at the end of Within 30 days after any change in a stolen, or mutilated, the registered newly redesignated paragraph (a)(5) and registered owner’s mailing address, the owner may submit to the Registry a adding, in its place, a period; and registered owner must notify the written request that states the reason a ■ d. Revising the introductory text of Registry in writing of the change of replacement certificate is needed and paragraph (a), revising paragraph (b)(3), address. If a post office box or mailing the fee required by § 47.17. The Registry and adding paragraph (b)(4) to read as drop is used for mailing purposes, the will send a replacement certificate to follows: registered owner also must provide that the registered owner’s mailing address

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or to another mailing address if § 47.67 Evidence of ownership. Issued in Washington, DC, on July 9, 2010. requested in writing by the registered Before using a Dealer’s Aircraft J. Randolph Babbitt, owner. Registration Certificate, AC Form 8050– Administrator. (b) The registered owner may request 6, for operating the aircraft, the holder [FR Doc. 2010–17572 Filed 7–19–10; 8:45 am] a temporary Certificate of Aircraft of the certificate (other than a BILLING CODE 4910–13–P Registration pending receipt of a manufacturer) must send to the Registry replacement certificate. The Registry evidence of ownership under § 47.11. issues a temporary Certificate of Aircraft An Aircraft Bill of Sale, AC Form 8050– DEPARTMENT OF TRANSPORTATION Registration in the form of a fax that 2, or its equivalent, may be used as must be carried in the aircraft until evidence of ownership. There is no Federal Aviation Administration receipt of the replacement certificate. recording fee. 14 CFR Part 71 § 47.51 [Removed and Reserved] § 47.69 [Amended] ■ 29. Remove and reserve § 47.51. ■ 34. Amend § 47.69 by removing the [Docket No. FAA–2010–0406; Airspace ■ 30. Amend § 47.61 by— words ‘‘Dealer’s Aircraft Registration Docket No. 10–ASW–8] ■ a. Revising the section heading: Certificate’’ in the introductory text, and adding, in their place, the words Establishment of Class D Airspace; ■ b. Removing the word ‘‘Dealers’’’ from ‘‘Dealer’s Aircraft Registration San Marcos, TX paragraph (b), and adding, in its place, Certificate, AC Form 8050–6’’. the word ‘‘Dealer’s’’; and AGENCY: ■ 35. Amend § 47.71 by— Federal Aviation ■ Administration (FAA), DOT. c. Revising the introductory text of ■ a. Removing the words ‘‘Dealer’s paragraph (a) and paragraph (a)(2) and Aircraft Registration Certificate’’ in ACTION: Final rule. adding paragraph (c) to read as follows: paragraph (a), and adding, in their SUMMARY: place, the words ‘‘Dealer’s Aircraft This action establishes Class § 47.61 Dealer’s Aircraft Registration D airspace for San Marcos Municipal Certificates. Registration Certificate, AC Form 8050– 6,’’; and Airport, San Marcos, TX. Establishment (a) The FAA issues a Dealer’s Aircraft of an air traffic control tower has made ■ b. Revising paragraph (b) to read as Registration Certificate, AC Form 8050– this action necessary to enhance the follows: 6, to U.S. manufacturers and dealers safety and management of Instrument to— § 47.71 Duration of Certificate; change of Flight Rule (IFR) operations at the * * * * * status. airport. A minor change in the airport (2) Facilitate operating, * * * * * descriptor also has been made. demonstrating, and merchandising (b) The holder of a Dealer’s Aircraft DATES: Effective date 0901 UTC, aircraft by the manufacturer or dealer Registration Certificate must September 23, 2010. The Director of the without the burden of obtaining a immediately notify the Registry of any Federal Register approves this Certificate of Aircraft Registration, AC of the following— incorporation by reference action under Form 8050–3, for each aircraft with each (1) A change of name; 1 CFR part 51, subject to the annual transfer of ownership, under Subpart B (2) A change of address; revision of FAA Order 7400.9 and of this part. (3) A change that affects status as a publication of conforming amendments. * * * * * citizen of the United States; or FOR FURTHER INFORMATION CONTACT: (c) If the Dealer’s Aircraft Registration (4) The discontinuance of business. Scott Enander, Central Service Center, Operations Support Group, Federal Certificate expires under § 47.71, and an PART 91—GENERAL OPERATING AND Aviation Administration, Southwest aircraft is registered under this Subpart, FLIGHT RULES application for registration must be Region, 2601 Meacham Blvd., Fort made under § 47.31, or the assignment ■ 36. The authority citation for part 91 Worth, TX 76137; telephone (817) 321– of registration number may be cancelled continues to read as follows: 7716. in accordance with § 47.15(i)(3). Authority: 49 U.S.C. 106(g), 1155, 40103, SUPPLEMENTARY INFORMATION: § 47.63 [Amended] 40113, 40120, 44101, 44111, 44701, 44704, History 44709, 44711, 44712, 44715, 44716, 44717, ■ 31. Amend § 47.63(a) by removing the 44722, 46306, 46315, 46316, 46504, 46506– On April 30, 2010, the FAA published words ‘‘An Application for Dealers’ 46507, 47122, 47508, 47528–47531, articles in the Federal Register a notice of Aircraft Registration Certificates’’ and 12 and 29 of the Convention on International proposed rulemaking to establish Class adding, in their place, the words ‘‘A Civil Aviation (61 Stat. 1180). D airspace for San Marcos Municipal Dealer’s Aircraft Registration Certificate ■ 37. Amend § 91.203 by revising Airport, San Marcos, TX (75 FR 22712) Application’’. paragraph (a)(2) to read as follows: Docket No. FAA–2010–0406. Interested ■ 32. Revise § 47.65 to read as follows: parties were invited to participate in § 91.203 Civil aircraft: Certifications this rulemaking effort by submitting § 47.65 Eligibility. required. written comments on the proposal to the To be eligible for a Dealer’s Aircraft (a) * * * FAA. No comments were received. Class Registration Certificate, AC Form 8050– (2) An effective U.S. registration D airspace designations are published in 6, the applicant must have an certificate issued to its owner or, for paragraph 5000 of FAA Order 7400.9T established place of business in the operation within the United States, the signed August 27, 2009, and effective United States, must be substantially second copy of the Aircraft registration September 15, 2009, which is engaged in manufacturing or selling Application as provided for in incorporated by reference in 14 CFR aircraft, and must be a citizen of the § 47.31(c), or a registration certification part 71.1. The Class D airspace United States, as defined by 49 U.S.C. issued under the laws of a foreign designations listed in this document 40102 (a)(15). country. will be published subsequently in the ■ 33. Revise § 47.67 to read as follows: * * * * * Order.

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The Rule PART 71—DESIGNATION OF CLASS A, management of Instrument Flight Rule B, C, D, AND E AIRSPACE AREAS; AIR (IFR) operations at the airport. This action amends Title 14 Code of TRAFFIC SERVICE ROUTES; AND Federal Regulations (14 CFR) Part 71 by DATES: Effective Date: 0901 UTC, REPORTING POINTS establishing Class D airspace at San September 23, 2010. The Director of the Federal Register approves this Marcos, TX. Establishment of an air ■ 1. The authority citation for 14 CFR incorporation by reference action under traffic control tower at San Marcos Part 71 continues to read as follows: Municipal Airport has made this action 1 CFR part 51, subject to the annual Authority: 49 U.S.C. 106(g), 40103, 40113, necessary for the safety and revision of FAA Order 7400.9 and 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– publication of conforming amendments. management of IFR operations at the 1963 Comp., p. 389. airport. Also, a minor change has been FOR FURTHER INFORMATION CONTACT: made in the amendatory language for § 71.1 [Amended] Scott Enander, Central Service Center, Operations Support Group, Federal the airport descriptor, changing from ■ 2. The incorporation by reference in Aviation Administration, Southwest San Marcos Municipal Airport, TX, to 14 CFR Part 71.1 of the Federal Aviation Region, 2601 Meacham Blvd., Fort San Marcos, TX. Administration Order 7400.9T, Airspace Worth, TX 76137; telephone (817) 321– The FAA has determined that this Designations and Reporting Points, 7716. regulation only involves an established signed August 27, 2009, and effective body of technical regulations for which September 15, 2009 is amended as SUPPLEMENTARY INFORMATION: frequent and routine amendments are follows: History necessary to keep them operationally * * * * * current. Therefore, this regulation: (1) Is On April 27, 2010, the FAA published not a ‘‘significant regulatory action’’ Paragraph 5000 Class D Airspace. in the Federal Register a notice of under Executive Order 12866; (2) is not * * * * * proposed rulemaking to establish Class E airspace for Paynesville, MN, creating a ‘‘significant rule’’ under DOT ASW TX D San Marcos, TX [New] Regulatory Policies and Procedures (44 controlled airspace at Paynesville San Marcos Municipal Airport, TX Municipal Airport (75 FR 22044) Docket FR 11034; February 26, 1979); and (3) (Lat. 29°53′34″ N., long. 97°51′47″ W.) does not warrant preparation of a No. FAA–2010–0399. Interested parties That airspace extending upward from the regulatory evaluation as the anticipated were invited to participate in this surface to and including 3,100 feet MSL rulemaking effort by submitting written impact is so minimal. Since this is a within a 4.2-mile radius of San Marcos routine matter that will only affect air comments on the proposal to the FAA. Municipal Airport, and within 1 mile each No comments were received. Class E traffic procedures and air navigation, it side of the 313° bearing from the airport is certified that this rule, when extending from the 4.2-mile radius to 4.6 airspace designations are published in promulgated, will not have a significant miles northwest of the airport. This Class D paragraph 6005 of FAA Order 7400.9T economic impact on a substantial airspace area is effective during the specific signed August 27, 2009, and effective number of small entities under the dates and times established in advance by a September 15, 2009, which is criteria of the Regulatory Flexibility Act. Notice to Airmen. The effective dates and incorporated by reference in 14 CFR times will thereafter be continuously 71.1. The Class E airspace designations The FAA’s authority to issue rules published in the Airport/Facility Directory. listed in this document will be regarding aviation safety is found in Issued in Fort Worth, Texas, on July 9, published subsequently in the Order. Title 49 of the U.S. Code. Subtitle 1, 2010. Section 106, describes the authority of The Rule Rick Kervin, the FAA Administrator. Subtitle VII, This action amends Title 14 Code of Aviation Programs, describes in more Acting Manager, Operations Support Group, ATO Central Service Center. Federal Regulations (14 CFR) part 71 by detail the scope of the agency’s establishing Class E airspace extending authority. This rulemaking is [FR Doc. 2010–17500 Filed 7–19–10; 8:45 am] BILLING CODE 4910–13–P upward from 700 feet above the surface promulgated under the authority to accommodate SIAPs at Paynesville described in Subtitle VII, Part A, Municipal Airport, Paynesville, MN. Subpart I, Section 40103. Under that DEPARTMENT OF TRANSPORTATION This action is necessary for the safety section, the FAA is charged with and management of IFR operations at prescribing regulations to assign the use Federal Aviation Administration the airport. of airspace necessary to ensure the The FAA has determined that this safety of aircraft and the efficient use of 14 CFR Part 71 regulation only involves an established airspace. This regulation is within the body of technical regulations for which scope of that authority as it establishes [Docket No. FAA–2010–0399; Airspace frequent and routine amendments are controlled airspace at San Marcos Docket No. 10–AGL–3] necessary to keep them operationally Municipal Airport, San Marcos, TX. Establishment of Class E Airspace; current. Therefore, this regulation: (1) Is With the exception of editorial changes, ‘‘ ’’ Paynesville, MN not a significant regulatory action and the changes described above, this under Executive Order 12866; (2) is not rule is the same as that proposed in the AGENCY: Federal Aviation a ‘‘significant rule’’ under DOT NPRM. Administration (FAA), DOT. Regulatory Policies and Procedures (44 List of Subjects in 14 CFR Part 71 ACTION: Final rule. FR 11034; February 26, 1979); and (3) does not warrant preparation of a Airspace, Incorporation by reference, SUMMARY: This action establishes Class regulatory evaluation as the anticipated Navigation (air). E airspace for Paynesville, MN, to impact is so minimal. Since this is a Adoption of the Amendment accommodate Area Navigation (RNAV) routine matter that will only affect air Standard Instrument Approach traffic procedures and air navigation, it ■ In consideration of the foregoing, the Procedures (SIAPs) at Paynesville is certified that this rule, when Federal Aviation Administration Municipal Airport. The FAA is taking promulgated, will not have a significant amends 14 CFR Part 71 as follows: this action to enhance the safety and economic impact on a substantial

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number of small entities under the DEPARTMENT OF TRANSPORTATION to accommodate SIAPs at Syracuse- criteria of the Regulatory Flexibility Act. Hamilton County Municipal Airport, The FAA’s authority to issue rules Federal Aviation Administration Syracuse, KS. This action is necessary regarding aviation safety is found in for the safety and management of IFR Title 49 of the U.S. Code. Subtitle 1, 14 CFR Part 71 operations at the airport. section 106, describes the authority of [Docket No. FAA–2010–0400; Airspace The FAA has determined that this the FAA Administrator. Subtitle VII, Docket No. 10–ACE–3] regulation only involves an established Aviation Programs, describes in more body of technical regulations for which Establishment of Class E Airspace; detail the scope of the agency’s frequent and routine amendments are Syracuse, KS authority. This rulemaking is necessary to keep them operationally promulgated under the authority AGENCY: Federal Aviation current. Therefore, this regulation: (1) Is described in subtitle VII, part A, subpart Administration (FAA), DOT. not a ‘‘significant regulatory action’’ I, section 40103. Under that section, the ACTION: Final rule. under Executive Order 12866; (2) is not FAA is charged with prescribing a ‘‘significant rule’’ under DOT regulations to assign the use of airspace SUMMARY: This action establishes Class Regulatory Policies and Procedures (44 necessary to ensure the safety of aircraft E airspace for Syracuse, KS, to FR 11034; February 26, 1979); and (3) and the efficient use of airspace. This accommodate Area Navigation (RNAV) does not warrant preparation of a regulation is within the scope of that Standard Instrument Approach regulatory evaluation as the anticipated authority as it establishes controlled Procedures (SIAPs) at Syracuse- impact is so minimal. Since this is a airspace at Paynesville Municipal Hamilton County Municipal Airport. routine matter that will only affect air Airport, Paynesville, MN. The FAA is taking this action to traffic procedures and air navigation, it List of Subjects in 14 CFR Part 71 enhance the safety and management of is certified that this rule, when Instrument Flight Rule (IFR) operations promulgated, will not have a significant Airspace, Incorporation by reference, at the airport. Navigation (air). economic impact on a substantial DATES: Effective Date: 0901 UTC, number of small entities under the Adoption of the Amendment September 23, 2010. The Director of the criteria of the Regulatory Flexibility Act. Federal Register approves this ■ In consideration of the foregoing, the incorporation by reference action under The FAA’s authority to issue rules Federal Aviation Administration 1 CFR part 51, subject to the annual regarding aviation safety is found in amends 14 CFR part 71 as follows: revision of FAA Order 7400.9 and Title 49 of the U.S. Code. Subtitle 1, publication of conforming amendments. Section 106, describes the authority of PART 71—DESIGNATION OF CLASS A, the FAA Administrator. Subtitle VII, FOR FURTHER INFORMATION CONTACT: B, C, D, AND E AIRSPACE AREAS; AIR Scott Enander, Central Service Center, Aviation Programs, describes in more TRAFFIC SERVICE ROUTES; AND Operations Support Group, Federal detail the scope of the agency’s REPORTING POINTS Aviation Administration, Southwest authority. This rulemaking is promulgated under the authority ■ Region, 2601 Meacham Blvd., Fort 1. The authority citation for 14 CFR described in Subtitle VII, Part A, Part 71 continues to read as follows: Worth, TX 76137; telephone (817) 321– 7716. Subpart I, Section 40103. Under that Authority: 49 U.S.C. 106(g), 40103, 40113, section, the FAA is charged with SUPPLEMENTARY INFORMATION: 40120; E. O. 10854, 24 FR 9565, 3 CFR, 1959– prescribing regulations to assign the use 1963 Comp., p. 389. History of airspace necessary to ensure the § 71.1 [Amended] On April 27, 2010, the FAA published safety of aircraft and the efficient use of in the Federal Register a notice of airspace. This regulation is within the ■ 2. The incorporation by reference in proposed rulemaking to establish Class scope of that authority as it establishes 14 CFR 71.1 of the Federal Aviation E airspace for Syracuse, KS, creating controlled airspace at Syracuse- Administration Order 7400.9T, Airspace controlled airspace at Syracuse- Hamilton County Municipal Airport, Designations and Reporting Points, Hamilton County Municipal Airport (75 Syracuse, KS. signed August 27, 2009, and effective FR 22045) Docket No. FAA–2010–0400. September 15, 2009 is amended as List of Subjects in 14 CFR Part 71 Interested parties were invited to follows: participate in this rulemaking effort by Airspace, Incorporation by reference, Paragraph 6005 Class E airspace areas submitting written comments on the Navigation (air). extending upward from 700 feet or more proposal to the FAA. No comments above the surface. were received. Class E airspace Adoption of the Amendment * * * * * designations are published in paragraph ■ In consideration of the foregoing, the AGL MN E5 Paynesville, MN [New] 6005 of FAA Order 7400.9T signed August 27, 2009, and effective Federal Aviation Administration Paynesville Municipal Airport, MN amends 14 CFR Part 71 as follows: (Lat. 45°22′19″ N., long. 94°44′41″ W.) September 15, 2009, which is incorporated by reference in 14 CFR That airspace extending upward from 700 PART 71—DESIGNATION OF CLASS A, Part 71.1. The Class E airspace feet above the surface within a 7.2-mile B, C, D, AND E AIRSPACE AREAS; AIR designations listed in this document radius of Paynesville Municipal Airport. TRAFFIC SERVICE ROUTES; AND will be published subsequently in the REPORTING POINTS Issued in Fort Worth, Texas, on July 1, Order. 2010. Anthony D. Roetzel, The Rule ■ 1. The authority citation for 14 CFR Manager, Operations Support Group, ATO This action amends Title 14 Code of Part 71 continues to read as follows: Central Service Center. Federal Regulations (14 CFR) Part 71 by Authority: 49 U.S.C. 106(g), 40103, 40113, [FR Doc. 2010–17503 Filed 7–19–10; 8:45 am] establishing Class E airspace extending 40120; E. O. 10854, 24 FR 9565, 3 CFR, 1959– BILLING CODE 4910–13–P upward from 700 feet above the surface 1963 Comp., p. 389.

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§ 71.1 [Amended] not required until those collection § 91.417 (a) became effective on July 7, ■ 2. The incorporation by reference in requirements are approved. This 2010. 14 CFR Part 71.1 of the Federal Aviation document announces that OMB Issued in Washington, DC, on July 15, Administration Order 7400.9T, Airspace approval was received on July 7, 2010. 2010. Designations and Reporting Points, FOR FURTHER INFORMATION CONTACT: For Pamela Hamilton-Powell, signed August 27, 2009, and effective technical questions concerning this Director, Office of Rulemaking. September 15, 2009 is amended as document, contact Larry L. Buchanan, [FR Doc. 2010–17627 Filed 7–19–10; 8:45 am] follows: Light-Sport Aviation Branch, AFS–610, BILLING CODE 4910–13–P Regulatory Support Division, Flight Paragraph 6005 Class E airspace areas extending upward from 700 feet or more Standards Service, Federal Aviation above the surface. Administration, 6500 South MacArthur DEPARTMENT OF HEALTH AND Blvd., Oklahoma City, OK 73169; * * * * * HUMAN SERVICES telephone (405) 954–6400. Mailing ACE KS E5 Syracuse, KS [New] address: Light-Sport Aviation Branch, Food and Drug Administration Syracuse-Hamilton County Municipal AFS–610; P.O. Box 25082; Oklahoma Airport, KS City, OK 73125. 21 CFR Part 814 (Lat. 37°59′30″ N., long. 101°44′47″ W.) For legal questions concerning this That airspace extending upward from 700 document, contact Paul G. Greer, [Docket No. FDA–2009–N–0458] feet above the surface within a 7.3-mile Regulations Division, AGC–200, Federal RIN 0910–AG29 radius of Syracuse-Hamilton County Aviation Administration, 800 Municipal Airport. Independence Ave., SW., Washington, Medical Devices; Pediatric Uses of Issued in Fort Worth, Texas, on July 1, DC 20591; telephone (202) 267–3073; e- Devices; Requirements for Submission 2010. mail [email protected]. of Information on Pediatric Anthony D. Roetzel, SUPPLEMENTARY INFORMATION: On Subpopulations That Suffer From a Manager, Operations Support Group, ATO February 1, 2010, the final rule, Disease or Condition That a Device Is Central Service Center. ‘‘Certification of Aircraft and Airmen for Intended to Treat, Diagnose, or Cure; [FR Doc. 2010–17510 Filed 7–19–10; 8:45 am] the Operation of Light-Sport Aircraft; Withdrawal BILLING CODE 4910–13–P Modifications to Rules for Sport Pilots AGENCY: Food and Drug Administration, and Flight Instructors With a Sport Pilot HHS. Rating’’ was published in the Federal ACTION: Direct final rule; withdrawal. DEPARTMENT OF TRANSPORTATION Register (75 FR 5204). In that rule, the FAA amended its requirements for sport SUMMARY: The Food and Drug Federal Aviation Administration pilots and flight instructors with a sport Administration (FDA) published in the pilot rating to address airman Federal Register of April 1, 2010, a 14 CFR Part 91 certification and operational issues that direct final rule that was intended to [Docket No. FAA–2007–29015; Amdt. No. arose after regulations for the make noncontroversial amendments to 91- 311] certification of aircraft and airmen for existing regulations which would RIN 2120–AJ10 the operation of light-sport aircraft were require the submission of readily implemented in 2004. available pediatric medical device Certification of Aircraft and Airmen for In the DATES section of the final rule, information as a part of premarket the Operation of Light-Sport Aircraft; the FAA noted that affected parties were approval applications, requests for Modifications to Rules for Sport Pilots not required to comply with the new humanitarian use device exemptions, and Flight Instructors With a Sport information collection requirements in and any product development protocols. Pilot Rating; OMB Approval of § 91.417 (incorrectly referenced in the The comment period closed on June 15, Information Collection DATES section as § 91.419) until OMB 2010. FDA is withdrawing the direct approved the FAA’s request to collect final rule because the agency received AGENCY: Federal Aviation the information. Paragraph (a) of significant adverse comment. Administration, DOT. § 91.417 contained a new requirement DATES: The direct final rule published at ACTION: Final rule; OMB approval of for owners and operators of special 75 FR 16347, April 1, 2010, is information collection. light-sport aircraft (SLSA) to retain a withdrawn on July 19, 2010. record of the current status of applicable SUMMARY: This document announces the FOR FURTHER INFORMATION CONTACT: safety directives and transfer that Robert Gatling, Center for Devices and Office of Management and Budget’s information at the time of the sale of (OMB’s) approval of the information Radiological Health, Food and Drug that aircraft. That information collection Administration, 10903 New Hampshire collection requirement contained in the requirement had not been approved by FAA’s final rule, ‘‘Certification of Ave., Bldg. 66, rm. 1640, Silver Spring, OMB at the time of publication. MD 20993, 301–796–6560. Aircraft and Airmen for the Operation of In accordance with the Paperwork Light-Sport Aircraft; Modifications to Therefore, under the Federal Food, Reduction Act, the FAA submitted a Drug, and Cosmetic Act, and under Rules for Sport Pilots and Flight copy of the new information collection Instructors With a Sport Pilot Rating,’’ authority delegated to the Commissioner requirements to OMB for its review. of Food and Drugs, the direct final rule which was published on February 1, OMB approved the collection on July 7, 2010. published on April 1, 2010, at 75 FR 2010, and assigned the information 16347 is withdrawn. DATES: The final rule published on collection OMB Control Number 2120– February 1, 2010, became effective on 0730, which expires on July 31, 2013. Dated: July 9, 2010. April 2, 2010. However, because it This document is being published to Leslie Kux, contained information collection inform affected parties of the approval, Acting Assistant Commissioner for Policy. requirements, compliance with the and to announce that the new [FR Doc. 2010–17617 Filed 7–19–10; 8:45 am] provisions contained in § 91.417 (a) was information collection requirement of BILLING CODE 4160–01–S

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DEPARTMENT OF HOMELAND SUMMARY: The Coast Guard is making a organizations that use the waters near SECURITY change to the Regulated Navigation Area the Umpqua River Bar in Oregon (RNA) covering the Umpqua River Bar indicating that the RNA covering that Coast Guard in Oregon so that it does not include bar, as defined in 33 CFR those waters between ‘‘Navigation Aid 165.1325(a)(12), is too large in that they 33 CFR Part 100 Number 8’’ and ‘‘Navigation Aid Number believe they are able to safely use the [Docket No. USCG–2009–0948] 6’’ on the Umpqua River. The change area between ‘‘Navigation Aid Number has been requested by a number of 8’’ and ‘‘Navigation Aid Number 6’’ in RIN 1625–AB43 individuals and organizations that the Umpqua River when the bar is believe they are able to safely use those restricted or closed. Inland Navigation Rules; Correction waters when the bar is restricted or In light of the public desires closed. ACTION: Final rule; correction. expressed, the possible economic DATES: This rule is effective August 19, impact on the local community, and the SUMMARY: In the Federal Register 2010. Coast Guard’s assessment that mariners published on April 15, 2010, the Coast ADDRESSES: Comments and material are, in most circumstances, able to Guard placed the Inland Navigation received from the public, as well as safely operate between ‘‘Navigation Aid Rules into the Code of Federal documents mentioned in this preamble Number 8’’ and ‘‘Navigation Aid Number Regulations. That publication contained as being available in the docket, are part 6’’ on the Umpqua River when the bar an error in the ‘‘Discussion of the Rule’’ of docket USCG–2008–1017 and are is restricted or closed, the Coast Guard section. This error does not impact the available online by going to http:// is changing the Umpqua River Bar RNA regulations, but has caused confusion www.regulations.gov, inserting USCG– as defined in 33 CFR 165.1325(a)(12) to among some members of the public. 2008–1017 in the ‘‘Keyword’’ box, and allow such use without obtaining DATES: This correction is effective July then clicking ‘‘Search.’’ This material is permission of the Captain of the Port or 20, 2010. also available for inspection or copying his/her designated representatives. FOR FURTHER INFORMATION CONTACT: For at the Docket Management Facility (M– Discussion of Comments and Changes information about this correction, 30), U.S. Department of Transportation, contact Kevin d’Eustachio, Office of West Building Ground Floor, Room The one comment received on the Regulations and Administrative Law, W12–140, 1200 New Jersey Avenue, SE., proposed rule expressed concern that telephone (202) 372–3854, e-mail Washington, DC 20590, between 9 a.m. the location of the RNA as described in [email protected]. For and 5 p.m., Monday through Friday, the regulatory text did not align with the information about the original except Federal holidays. description given in the preamble, regulation, contact LT Scott Medeiros, FOR FURTHER INFORMATION CONTACT: If specifically with regards to ‘‘Navigation Office of Vessel Activities (CG–54133), you have questions on this rule, call or Aid Number 6.’’ The rule was changed telephone (202) 372–1565 e-mail LT Kion Evans, Thirteenth Coast to correct that inconsistency. [email protected]. Guard District Prevention Division; Regulatory Analyses telephone 206–220–7232, e-mail SUPPLEMENTARY INFORMATION: In FR doc [email protected]. If you have We developed this rule after 2010–8532 appearing on page 20294 in questions on viewing the docket, call considering numerous statutes and the issue of Thursday, April 15, 2010, Renee V. Wright, Program Manager, executive orders related to rulemaking. the following corrections are made: Docket Operations, telephone 202–366– Below we summarize our analyses 1. On page 19545, in the first column, 9826. based on 13 of these statutes or in the three places that ‘‘§ 83.185’’ executive orders. appears, remove the numbers ‘‘§ 83.185’’ SUPPLEMENTARY INFORMATION: and replace with ‘‘§ 83.38’’. Regulatory Information Regulatory Planning and Review Dated: July 14, 2010. On April 12, 2010, we published a This rule is not a significant Steve Venckus, notice of proposed rulemaking (NPRM) regulatory action under section 3(f) of Office of Regulations and Administrative Law entitled ‘‘Regulated Navigation Areas; Executive Order 12866, Regulatory (CG–0943), U.S. Coast Guard. Bars Along the Coasts of Oregon and Planning and Review, and does not [FR Doc. 2010–17663 Filed 7–19–10; 8:45 am] Washington; Amendment’’ in the require an assessment of potential costs BILLING CODE 9110–04–P Federal Register (75 FR 18449). We and benefits under section 6(a)(3) of that received one comment on the proposed Order. The Office of Management and rule. No public meeting was requested Budget has not reviewed it under that DEPARTMENT OF HOMELAND and none was held. Order. The Coast Guard has made this SECURITY determination based on the fact that this Basis and Purpose rule simply reduces the size of an Coast Guard On November 17, 2009, the Coast established Regulated Navigation Area. Guard published a Final Rule entitled Small Entities 33 CFR Part 165 ‘‘Regulated Navigation Areas; Bars [Docket No. USCG–2008–1017] Along the Coasts of Oregon and Under the Regulatory Flexibility Act Washington’’ in the Federal Register (74 (5 U.S.C. 601–612), we have considered RIN 1625–AA11 FR 59098), which established Regulated whether this rule would have a Navigation Areas (RNA) covering each significant economic impact on a Regulated Navigation Areas; Bars of the coastal bars in Oregon and substantial number of small entities. Along the Coasts of Oregon and Washington. Following implementation The term ‘‘small entities’’ comprises Washington; Amendment of the rule, as codified at 33 CFR small businesses, not-for-profit AGENCY: Coast Guard, DHS. 165.1325, on December 17, 2009, the organizations that are independently Coast Guard began receiving feedback owned and operated and are not ACTION: Final rule. from a number of individuals and dominant in their fields, and

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governmental jurisdictions with aggregate, or by the private sector of regulatory activities unless the agency populations of less than 50,000. $100,000,000 (adjusted for inflation) or provides Congress, through the Office of The Coast Guard certifies under 5 more in any one year. Though this rule Management and Budget, with an U.S.C. 605(b) that this rule will not have will not result in such an expenditure, explanation of why using these a significant economic impact on a we do discuss the effects of this rule standards would be inconsistent with substantial number of small entities. elsewhere in this preamble. applicable law or otherwise impractical. This rule will affect those small entities Voluntary consensus standards are Taking of Private Property that use the waters near the Umpqua technical standards (e.g., specifications River Bar. The rule would not have a This rule will not cause a taking of of materials, performance, design, or significant economic impact on a private property or otherwise have operation; test methods; sampling substantial number of small entities, taking implications under Executive procedures; and related management however, because it simply reduces the Order 12630, Governmental Actions and systems practices) that are developed or size of an established Regulated Interference with Constitutionally adopted by voluntary consensus Navigation Area. Protected Property Rights. standards bodies. This rule does not use technical Assistance for Small Entities Civil Justice Reform standards. Therefore, we did not Under section 213(a) of the Small This rule meets applicable standards consider the use of voluntary consensus Business Regulatory Enforcement in sections 3(a) and 3(b)(2) of Executive standards. Fairness Act of 1996 (Pub. L. 104–121), Order 12988, Civil Justice Reform, to in the NPRM we offered to assist small minimize litigation, eliminate Environment entities in understanding the rule so ambiguity, and reduce burden. We have analyzed this rule under that they could better evaluate its effects Protection of Children Department of Homeland Security on them and participate in the Management Directive 023–01 and rulemaking process. We have analyzed this rule under Commandant Instruction M16475.lD, Small businesses may send comments Executive Order 13045, Protection of which guide the Coast Guard in on the actions of Federal employees Children from Environmental Health complying with the National who enforce, or otherwise determine Risks and Safety Risks. This rule is not Environmental Policy Act of 1969 compliance with, Federal regulations to an economically significant rule and (NEPA) (42 U.S.C. 4321–4370f), and the Small Business and Agriculture does not create an environmental risk to have concluded this action is one of a Regulatory Enforcement Ombudsman health or risk to safety that may category of actions that do not and the Regional Small Business disproportionately affect children. individually or cumulatively have a Regulatory Fairness Boards. The Indian Tribal Governments significant effect on the human Ombudsman evaluates these actions environment. This rule is categorically annually and rates each agency’s This rule does not have tribal excluded, under figure 2–1, paragraph responsiveness to small business. If you implications under Executive Order (34)(g), of the Instruction. This rule wish to comment on actions by 13175, Consultation and Coordination involves the reduction in size of a employees of the Coast Guard, call 1– with Indian Tribal Governments, Regulated Navigation Area. Under figure 888–REG–FAIR (1–888–734–3247). The because it does not have a substantial 2–1, paragraph (34)(g), of the Coast Guard will not retaliate against direct effect on one or more Indian Instruction, an environmental analysis small entities that question or complain tribes, on the relationship between the checklist and a categorical exclusion about this rule or any policy or action Federal Government and Indian tribes, determination are not required for this of the Coast Guard. or on the distribution of power and rule. responsibilities between the Federal Collection of Information Government and Indian tribes. List of Subjects in 33 CFR Part 165 This rule calls for no new collection Energy Effects Harbors, Marine safety, Navigation of information under the Paperwork (water), Reporting and recordkeeping Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under requirements, Security measures, 3520). Executive Order 13211, Actions Waterways. Concerning Regulations That ■ For the reasons discussed in the Federalism Significantly Affect Energy Supply, preamble, the Coast Guard amends 33 A rule has implications for federalism Distribution, or Use. We have CFR part 165 as follows: under Executive Order 13132, determined that it is not a ‘‘significant Federalism, if it has a substantial direct energy action’’ under that order because PART 165—REGULATED NAVIGATION effect on State or local governments and it is not a ‘‘significant regulatory action’’ AREAS AND LIMITED ACCESS AREAS would either preempt State law or under Executive Order 12866 and is not impose a substantial direct cost of likely to have a significant adverse effect ■ 1. The authority citation for part 165 compliance on them. We have analyzed on the supply, distribution, or use of continues to read as follows: this rule under that Order and have energy. The Administrator of the Office Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. determined that it does not have of Information and Regulatory Affairs Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; implications for federalism. has not designated it as a significant 33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5; energy action. Therefore, it does not Pub. L. 107–295, 116 Stat. 2064; Department Unfunded Mandates Reform Act require a Statement of Energy Effects of Homeland Security Delegation No. 0170.1. The Unfunded Mandates Reform Act under Executive Order 13211. ■ 2. Amend § 165.1325 by revising of 1995 (2 U.S.C. 1531–1538) requires paragraph (a)(12) to read as follows: Federal agencies to assess the effects of Technical Standards their discretionary regulatory actions. In The National Technology Transfer § 165.1325 Regulated Navigation Areas; particular, the Act addresses actions and Advancement Act (NTTAA) (15 Bars Along the Coasts of Oregon and that may result in the expenditure by a U.S.C. 272 note) directs agencies to use Washington. State, local, or tribal government, in the voluntary consensus standards in their (a) * * *

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(12) Umpqua River Bar, Oreg.: From a those DMM revisions that are consistent similar restrictions on the delivery of point on the shoreline at 43°41′20″ N., with the expressed wishes of numerous their publications, nor are they 124°11′58″ W. thence westward to publishers and Periodicals association prohibited from using such technologies 43°41′20″ N., 124°13′32″ W thence representatives. in the newsstand editions of their southward to 43°38′35″ N., 124°14′25″ publications. Background W. thence eastward to a point on the Accordingly, DMM 707.3.3.1a is shoreline at 43°38′35″ N., 124°12′35″ W. In the 1980s, and again in the 1990s, revised to replace ‘‘fastening’’ with ‘‘non- thence northward along the shoreline to the Postal Service undertook extensive paper’’ in the first sentence to permit the navigational light ‘‘6’’ located on the reviews of the standards governing what non-paper materials other than fastening jetty at 43°40′11″ N., 124°11′56″ W. could be mailed as part of a periodical materials in the construction of a thence northward to a point on the publication at Periodicals prices multilayer page. This change would north bank of the entrance channel at (formerly second-class rates). Advances allow additional creativity in page 43°40′33″ N., 124°11′56″ W. thence in technology, and difficulty in applying design. The sentence ‘‘Not all elements southwestward along the north bank of the standards, were key underlying that make up a multilayer page must be the entrance channel thence northward factors in those reviews. On March 27, printed’’ is added to 3.3.1a, for along the seaward shoreline to the 1995, the Postal Service published a additional transparency. That sentence beginning. final rule in the Federal Register (60 FR is currently incorporated in Customer * * * * * 10021–10029) revising the standards. Support Ruling (CSR) PS–234, titled Since that time, the standards ‘‘Multilayer pages in Periodicals Dated: July 7, 2010. governing contents of a publication Publications.’’ Finally, the sentence ‘‘In G.T. Blore, eligible for Periodicals prices have not addition, multilayer pages may contain Rear Admiral, U.S. Coast Guard, Commander, changed, except for several minor novel characteristics such as an LED Thirteenth Coast Guard District. modifications. There has been no display, a sound device, or battery [FR Doc. 2010–17665 Filed 7–19–10; 8:45 am] discernable undesired movement of operated movable parts’’ is added to BILLING CODE 9110–04–P printed advertising materials, or other 3.3.1a, to allow publishers to take matter, from Standard Mail to advantage of current technologies, Periodicals mail. within the boundaries of mailable POSTAL SERVICE The changes to the standards reflected versus nonmailable matter as described in this final rule concentrate on four in DMM 601. 39 CFR Part 111 areas of ‘‘content’’ provisions and In addition, it should be noted that mailpiece construction: publishers continue to be required to Content of Periodicals Mail • DMM 707.3.3.1, Pages. adhere to the mailing standards • AGENCY: Postal ServiceTM. DMM 707.3.3.5, Supplements. governing the Periodicals price category • DMM 707.3.4.3, Products. claimed. ACTION: Final rule. • DMM 707.3.5, Mailpiece Supplement SUMMARY: The Postal Service is revising Construction. Mailing Standards of the United States Æ Specifically DMM 3.5.4, Without Many publishers have considered the Postal Service, Domestic Mail Manual Mailing Wrapper. 25 percent nonadvertising standard for Æ (DMM®) 707.3, to update present and DMM 3.5.6, Cover page and loose supplements to be burdensome, ‘‘content requirements’’ on materials Protective Cover. and inappropriate as a means of limiting advertising in Periodicals mail. It is eligible for mailing at Periodicals prices Pages with authorized Periodicals often viewed as an unnecessary publications. A basic requirement for all Periodicals restriction on a publisher’s ability to publications is that they be comprised choose whether to place advertising DATES: Effective September 7, 2010. of ‘‘printed sheets.’’ In the March 27, matter in the host publication or FOR FURTHER INFORMATION CONTACT: Jerry 1995 rulemaking, however, the printed accompanying loose supplement. Lease, 202–268–7264. sheet requirement was relaxed to allow Moreover, the existing standards are SUPPLEMENTARY INFORMATION: After small amounts of ‘‘fastening’’ material, hard to apply. This problem exists for discussions with the Periodicals mailing such as grommets, string, and rubber customers and postal personnel, as industry, the Postal Service agreed to bands, used to assemble a page. The demonstrated by the numerous requests review the standards governing contents Postal Service concluded at that time for guidance directed to the Pricing and of Periodicals mail, and decided to allowing such materials was not a Classification Service Center (PCSC) and update several standards. This rule significant deviation from the ‘‘printed headquarters Mailing Standards removes the current advertising sheet’’ rule because the changes were personnel concerning what is limitation on loose supplements, except consistent with the existing practice of advertising or nonadvertising matter. for unwrapped copies of loose allowing Periodicals publications to be Often, when supplements are produced addressed supplements included in a bound with staples, saddle stitching, or by third parties, it becomes particularly mailing for an authorized Periodicals spiral binding. difficult to make such judgments. publication. The final rule also revises More recently, publishers have argued Contracts must be reviewed to evaluate the regulations on pages, specifically that the 1995 changes, although the relationship(s) between parties. multi-layer pages, giving publishers welcome, unduly limit creativity in Payment arrangements by outside more latitude in page design. The designing publications that appeal to parties for the advertising portion of provisions concerning the mailing of their readers and advertisers. These supplements must be examined in products and product samples have publishers also point out advances in determining whether the material been updated and simplified. Finally, technology that they are restricted from qualifies as nonadvertising matter. the standards governing protective using such as the inclusion of sound The Postal Service agrees with many covers and attachments have been devices and video as part of a printed publishers and their association updated for consistency with past page. Finally, they point out that private representatives that the 25 percent rulings. This final rule contains only delivery companies do not impose nonadvertising requirement should be

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eliminated except for separately to advertising or nonadvertising within PART 111—[AMENDED] addressed loose supplements mailed the content of the host publication, will ■ with the host publication outside a provide further support that the piece is 1. The authority citation for 39 CFR wrapper or polybag. The Postal Service properly prepared as a printed page (or Part 111 continues to read as follows: is revising DMM 707.3.3.5 as follows: a portion of a multilayer page) in the Authority: 5 U.S.C. 552(a); 13 U.S.C. 301– • In the first sentence of 3.3.5a., the publication. 307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, ‘‘ ’’ 401, 403, 404, 414, 416, 3001–3011, 3201– words on the front cover/page are Product samples may not be included added to ensure that the required 3219, 3403–3406, 3621, 3622, 3626, 3632, in a Periodicals publication mailed at ‘‘Supplement to * * *’’ endorsement is 3633, and 5001. letter-sized prices. The combined shown on the front of the supplement. ■ 2. Revise the following sections of • The words ‘‘contain at least 25% weight of product samples in an issue Mailing Standards of the United States nonadvertising material and’’ are deleted of a Periodicals publication cannot Postal Service, Domestic Mail Manual from the first sentence of 3.3.5a. exceed 3.3 ounces. Any product sample (DMM) as follows: • The words ‘‘must contain at least that is a ‘‘packet’’ is limited to a weight Mailing Standards of the United States 25% nonadvertising material’’ apply of no more than one ounce with a burst Postal Service, Domestic Mail Manual only to loose addressed supplements strength minimum of 3,000 pounds per (DMM) when a wrapper is not required. square inch (PSI). Attachable product samples, including packets weighing no * * * * * Product Samples more than one ounce, may not be Product samples in Periodicals are not affixed to either the front or back cover 700 Special Standards new. However, no explicit DMM page of a Periodicals publication, or * * * * * standard acknowledges product samples permissible component of a Periodicals 707 Periodicals are mailable at Periodicals prices. publication, even if the publication is Mailability at Periodicals prices of enclosed in a wrapper. Placement of * * * * * product samples is achieved by attachable product samples must 3.0 Physical Characteristics and ‘‘altering’’ a product, such as by conform to machinability and uniform Content Eligibility changing the ingredients in fragrance thickness standards, and must be placed samples, limiting significantly the size no closer than 3⁄4 inch of any open edge * * * * * of a cosmetics sample, and requiring a of any interior page. 3.3 Permissible Mailpiece Components disclaimer that the sample ‘‘simulates’’ Publishers are aware that in an 3.3.1 Pages or is a ‘‘rendition’’ of an actual product. environment of ever-increasing Preparation guidelines are contained in automated processing by the Postal * * * Pages are also subject to these Customer Support Ruling (CSR) PS–273. Service of all types of mail including standards: However, the Postal Service finds these letters, flats, and parcels, it is critical [Revise 3.3.1a. to replace ‘‘fastening’’ guidelines difficult to administer, with that Periodicals publications not impede with ‘‘non-paper’’ materials in the first documentation and verification of postal processing or damage postal sentence and to include new language compliance burdensome on publishers processing equipment. Accordingly, it is to further describe a multilayer page as and postal personnel alike. reemphasized that any mailpiece to follows:] In earlier rulemakings, the Postal which a product sample is added under a. Multilayer pages (including pages Service expressed the view that this new provision must meet the formed by sheets glued together and applying the general requirement that standards for physical characteristics pages that have unusual shapes, such as all Periodicals publications must be related to basic mailability and to the cutouts, movable flaps, or ‘‘pop-ups’’) formed of printed sheets is a sufficient eligibility for the specific postage prices may include small amounts of non- standard to limit the inappropriate claimed. In addition, all of the paper material such as grommets, string, mailing of products and products mailability restrictions and prohibitions or rubber bands as needed to assemble samples at Periodicals prices (see DMM in DMM 601 apply. See specifically the page. Not all elements that make up 707.4.5). Changes to the standards DMM 601.2.1, Packaging, and 601.10.5, a multilayer page must be printed. In described in this rule will continue to Mailer Responsibility for Mailing addition, multilayer pages may contain exclude products such as stationery, Hazardous Materials. novel characteristics such as an LED cassettes, floppy disks, DVDs, CDs, and display, a sound device, or battery similar media, since they are not printed Products operated movable parts. Multilayer sheets. pages may also be formed as pouches or But specifically allowing de minimis Under impermissible mailpiece pockets, but may contain only ‘‘ ’’ product samples will reduce the burden components, products are redefined to permissible loose enclosures (see 3.3.4) of the current guidelines. Consequently, update the examples of impermissible or other securely affixed permissible and consistent with requests by many products in Periodicals. components. Periodicals publishers and Periodicals The Postal Service adopts the * * * * * association representatives, the Postal following changes to Mailing Standards Service has adopted a new provision in of the United States Postal Service, 3.3.5 Supplement the DMM allowing product samples in Domestic Mail Manual (DMM), * * * Supplements are also subject to de minimis form to be included as part incorporated by reference in the Code of these conditions as applicable: of a printed sheet. This change will Federal Regulations. See 39 CFR 111.1. [Revise 3.3.5a. to make clear that the enhance both the value of some required supplement endorsement must advertisements to the reader, and the List of Subjects in 39 CFR Part 111 be shown on the front/cover page. In overall value of the publication to the Administrative practice and addition, the requirement that a reader. Although not explicitly required, procedure, Postal Service. supplement to a bound Periodicals including the name of the host publication contain at least 25% publication and the issue or issue date ■ Accordingly, 39 CFR Part 111 is nonadvertising is eliminated except for on the sample, and relating the sample amended as follows: unwrapped loose supplements.]

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a. A loose supplement to a bound c. Must comply with machinability 3.5.6 Cover Page and Protective Cover Periodicals publication must bear on the standards, e.g. uniform thickness [Revise the first sentence of 3.5.6 to front/cover page the endorsement (301.1.4); allow for 3⁄4 inch clearance of any open ‘‘Supplement to’’ followed by one of the d. Must not be attached to the front edge on a protective cover to a following: the title of the publication, or back cover page of the host Periodicals publication as follows:] the name of the publisher, or Periodicals publication, or any other If the piece is not completely enclosed ‘‘Periodicals Publication.’’ A bound permissible component; publication with one or more in a mailing wrapper, then any e. Must be secured in place (spine or supplements must be enclosed in a protective cover or cover page must tip-on interior page) to prevent shifting wrapper. However, a wrapper is not cover both the front and back of the host (601.2.1); and, required when a loose supplement is publication and extend to within at least 3 3 included within the same mailing as the f. Must be placed at least ⁄4 inch from ⁄4 inch of any open edge. Exception: host publication, bears a proper delivery all non-bound edges of any interior Flat-size pieces may have short covers address, contains at least 25% page. as provided in 301.3.5.2. If the host nonadvertising material, and includes * * * * * publication is bound, the protective on the front/cover page the endorsement cover must be permanently attached to 3.4 Impermissible Mailpiece the publication. ‘‘Periodicals Supplement to’’ followed Components by the exact title and issue date of the * * * * * host publication. The external * * * * * We will publish an appropriate amendment to 39 CFR Part 111 to reflect dimensions of such unwrapped 3.4.3 Products supplements may exceed those of the these changes. host publication provided they are of [Revise 3.4.3 to update examples of Neva R. Watson, impermissible ‘‘products’’ in Periodicals the same processing category as the host Attorney, Legislative. publication. If a supplement to a bound publications as follows:] [FR Doc. 2010–17459 Filed 7–19–10; 8:45 am] publication is formed of more than one Except as provided for in 3.3.9, BILLING CODE 7710–12–P sheet, all sheets making up the products may not be mailed at supplement must be bound together. Periodicals prices. Examples include * * * * * stationery (such as pads of paper or ENVIRONMENTAL PROTECTION [Renumber current 3.3.9 and 3.3.10 as blank printed forms); cassettes; floppy AGENCY 3.3.10 and 3.3.11 accordingly, and add disks; CDs; DVDs; merchandise, new 3.3.9 to provide for ‘‘product including travel-size merchandise in 40 CFR Part 63 samples’’ in Periodicals publications as commercially available form or follows:] packaging; and wall, desk, and blank [EPA–HQ–OAR–2008–0080; FRL–9176–7] 3.3.9 Product Samples calendars. Printed pages, including RIN 2060–AQ26 oversized pages and calendars, are not Subject to the requirements in 3.3.1 considered products if they are not Amendments to National Emission and 3.4.5, product samples: Related to offered for sale. Standards for Hazardous Air print advertising in the issue and are not * * * * * Pollutants: Area Source Standards for offered for sale within the meaning of Prepared Feeds Manufacturing 3.4.2a and 3.4.3 may be included in a 3.5 Mailpiece Construction Periodicals publication as a page, or part * * * * * AGENCY: Environmental Protection of a multilayer page. Examples include, Agency (EPA). but are not limited to, a swatch of cloth; 3.5.4 Without Mailing Wrapper ACTION: Direct final rule. a paper towel as part of a printed page, [Revise the last sentence of 3.5.4 to or printed paper towel; a band-aid; and SUMMARY: EPA is taking direct final allow for 3⁄4 inch clearance of any open fragrance, cosmetics, lotions, or eatables action on three amendments to the edge on attachments to a Periodicals regulatory text in the prepared feeds in packet form. The combined weight of publication as follows:] product samples in an issue is limited manufacturing area source rule. First, to 3.3 ounces. Any product sample in When the mailpiece does not have a this action corrects the date for new the form of a packet is limited in total mailing wrapper, all the components of sources to submit a Notification of weight to no more than one ounce, but an unbound publication must be Compliance Status (NOCS) form. does not include the page weight upon combined with and inserted inside the Second, this action corrects information which the packet is affixed. Packet publication. Only enclosures mailable at that needs to be included in the product samples also must have a Periodicals prices under 3.3.4 may be Notification of Compliance Report for minimum burst strength of 3,000 included loose inside a bound those small facilities that are not pounds per square inch (psi). Travel unwrapped publication. An enclosure required to install cyclones on their size and similar small products in under 3.3.3c, Enclosures at First-Class pelleting operations. Third, this action commercially available form or Mail or Standard Mail Prices, or 3.3.4, adds language to the regulatory text that packaging do not qualify as permissible Loose Enclosures at Periodicals Prices, was inadvertently left out of the final product samples, even if less than 3.3 or a single sheet prepared as an rule requiring submittal of the annual ounces. In addition, CDs, DVDs, and attachment under 3.3.8c, may be compliance certification report. These similar media do not qualify as securely attached along the bound edge corrections and clarifications will not permissible product samples. on the outside of an unwrapped change the standards established by the Permissible product samples: publication if it does not exceed any rule and not result in the imposition of a. Are not eligible with letter-size dimension of the cover of the any costs beyond those included in the pieces; publication and comes within 3⁄4 inch of final rule. b. Must comply with hazmat any open edge. DATES: This direct final rule is effective standards (601.10.5); * * * * * on November 2, 2010, without further

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notice, unless EPA receives adverse If you send an e-mail comment directly V. Statutory and Executive Order Reviews comment by September 3, 2010. If we to EPA without going through http:// A. Executive Order 12866: Regulatory receive adverse comment, we will www.regulations.gov, your e-mail Planning and Review publish a timely withdrawal in the address will be automatically captured B. Paperwork Reduction Act and included as part of the comment C. Regulatory Flexibility Act Federal Register informing the public D. Unfunded Mandates Reform Act that some or all of the amendments in that is placed in the public docket and E. Executive Order 13132: Federalism this rule will not take effect. made available on the Internet. If you F. Executive Order 13175: Consultation ADDRESSES: Submit your comments, submit an electronic comment, EPA and Coordination With Indian Tribal identified by Docket ID No. EPA–HQ– recommends that you include your Governments OAR–2008–0080, by one of the name and other contact information in G. Executive Order 13045: Protection of following methods: the body of your comment and with any Children From Environmental Health • Federal eRulemaking Portal: http:// disk or CD–ROM you submit. If EPA and Safety Risks www.regulations.gov: Follow the cannot read your comment due to H. Executive Order 13211: Actions Concerning Regulations That instructions for submitting comments. technical difficulties and cannot contact • you for clarification, EPA may not be Significantly Affect Energy Supply, Agency Web site: http:// Distribution, or Use www.epa.gov/oar/docket.html. Follow able to consider your comment. I. National Technology Transfer and the instructions for submitting Electronic files should avoid the use of Advancement Act comments on the EPA Air and Radiation special characters, any form of J. Executive Order 12898: Federal Actions Docket Web site. encryption, and be free of any defects or to Address Environmental Justice in • E-mail: [email protected]. viruses. Minority Populations and Low-Income Include Docket ID No. EPA–HQ–OAR– Docket: EPA has established a docket Populations 2008–0080 in the subject line of the for this action under Docket ID No. K. Congressional Review Act message. EPA–HQ–OAR–2008–0080. All I. Why is EPA using a direct final rule? • Fax: Send comments to (202) 566– documents in the docket are listed in 9744, Attention Docket ID No. EPA– the Federal Docket Management System We are publishing the rule without a HQ–OAR–2008–0080. index at http://www.regulations.gov. prior proposed rule because we view • Mail: Area Source NESHAP for Although listed in the index, some this as a non-controversial action and Prepared Feeds Manufacturing Docket, information is not publicly available anticipate no adverse comment. As Environmental Protection Agency, Air (e.g., (CBI) or other information whose explained below, this action amends the and Radiation Docket and Information disclosure is restricted by statute). date for new sources to submit a Center, Mailcode: 2822T, 1200 Certain other material, such as Notification of Compliance Status Pennsylvania Avenue, NW., copyrighted material, will be publicly (NOCS) form; corrects information that Washington, DC 20460. Please include a available only in hard copy form. needs to be included in the Notification total of two copies. Publicly available docket materials are of Compliance Report for those small • Hand Delivery: EPA Docket Center, available either electronically through facilities that are not required to install Public Reading Room, EPA West, Room http://www.regulations.gov or in hard cyclones on their pelleting operations; 3334, 1301 Constitution Avenue, NW., copy at the EPA Docket Center, Public and adds language to the regulatory text Washington, DC 20460. Such deliveries Reading Room, EPA West, Room 3334, that was inadvertently left out of the are only accepted during the Docket’s 1301 Constitution Ave., NW., final rule requiring submittal of the normal hours of operation, and special Washington, DC. The Public Reading annual compliance certification report. Room is open from 8:30 a.m. to 4:30 arrangements should be made for Because this is an amendment of p.m., Monday through Friday, excluding deliveries of boxed information. regulatory language through rulemaking, Instructions: Direct your comments to legal holidays. The telephone number a redline version of the regulatory Docket ID No. EPA–HQ–OAR–2008– for the Public Reading Room is (202) language has been created and has been 0080. EPA’s policy is that all comments 566–1744, and the telephone number for placed in the docket (http:// received will be included in the public the Air Docket is (202) 566–1742. www.regulations.gov, see Docket No. docket without change and may be FOR FURTHER INFORMATION CONTACT: Jan EPA–HQ–OAR–2008–0080) to aid the made available online at http:// King, Regulatory Development and public’s ability to comment on the www.regulations.gov, including any Policy Analysis Group, Office of Air regulatory text. personal information provided, unless Quality Planning and Standards (C404– the comment includes information 05), Environmental Protection Agency, If we receive relevant adverse claimed to be confidential business Research Triangle Park, NC 27711. comment on this direct final rule, we information (CBI) or other information Telephone number: (919) 541–5665; fax will publish a timely withdrawal in the whose disclosure is restricted by statute. number: (919) 541–0242; e-mail address: Federal Register informing the public Do not submit information that you [email protected]. that some or all of the amendments in consider to be CBI or otherwise SUPPLEMENTARY INFORMATION: The this rule will not take effect. Any parties protected through http:// information presented in this preamble interested in commenting must do so at www.regulations.gov or e-mail. The is organized as follows: this time. http://www.regulations.gov Web site is I. Why is EPA using a direct final rule? II. Does this action apply to me? an ‘‘anonymous access’’ system, which II. Does this action apply to me? means EPA will not know your identity III. Where can I get a copy of this document? Regulated Entities. The regulated or contact information unless you IV. What amendments are we making to this categories and entities potentially provide it in the body of your comment. rule? affected by the final rule include:

Category NAICS code 1 Examples of regulated entities

Other Animal Foods Manufacturing ...... 311119 Animal feeds, prepared (except dog and cat), manufacturing. 1 North American Industry Classification System.

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This table is not intended to be The corrections will become effective found at 13 CFR 121.201; (2) a small exhaustive, but rather provides a guide on November 2, 2010, without further governmental jurisdiction that is a for readers regarding entities likely to be notice, unless EPA receives adverse government of a city, county, town, affected by this action. To determine comment by September 3, 2010. If EPA school district, or special district with a whether your facility is regulated by this receives adverse comment, we will population of less than 50,000; and (3) action, you should examine the publish a timely withdrawal in the a small organization that is any not-for- applicability criteria in 40 CFR Federal Register informing the public profit enterprise which is independently 63.11619, subpart DDDDDDD (NESHAP that some or all of the amendments in owned and operated and is not for Area Sources: Prepared Feeds this rule will take affect. Today’s action dominant in its field. Manufacturing). If you have any notifies interested parties of the questions regarding the applicability of amendments. After considering the economic this action to a particular entity, consult impacts of this direct final rule on small V. Statutory and Executive Order either the state delegated authority or entities, I certify that this action will not Reviews the EPA regional representative, as have a significant economic impact on listed in 40 CFR 63.13 of subpart A A. Executive Order 12866: Regulatory a substantial number of small entities. (General Provisions). Planning and Review This action does not impose any additional costs over those in the final This action is not a ‘‘significant III. Where can I get a copy of this rule published on January 5, 2010 (75 document? regulatory action’’ under the terms of Executive Order 12866 (58 FR 51735, FR 522). Electronic Access. In addition to being October 4, 1993) and is, therefore, not D. Unfunded Mandates Reform Act available in the docket, an electronic subject to review under the Executive copy of this direct final action will also Order. This direct final rule does not contain be available on the Worldwide Web a Federal mandate that may result in (WWW) through the Technology B. Paperwork Reduction Act expenditures of $100 million or more Transfer Network (TTN). Following This action does not impose any new for State, local, and Tribal governments, signature, a copy of this final action will information collection burden. The in the aggregate, or to the private sector be posted on the TTN’s policy and proposed amendments result in no in any one year. This direct final rule is guidance page for newly proposed or changes to the information collection not expected to impact State, local, or promulgated rules at the following requirements of the existing standards Tribal governments. Thus, this rule address: http://www.epa.gov/ttn/oarpg/. of performance and will have little or no The TTN provides information and would not be subject to the impact on the information collection requirements of sections 202 and 205 of technology exchange in various areas of estimate of projected cost and hour air pollution control. the Unfunded Mandates Reform Act burden made and approved by the (UMRA). IV. What amendments are we making Office of Management and Budget This final rule would also not be to this rule? (OMB) during the development of the existing standards of performance. subject to the requirements of section On January 5, 2010 (75 FR 522), the Therefore, the information collection 203 of UMRA because it contains no EPA promulgated the national emission requests have not been amended. regulatory requirements that might standards for hazardous air pollutants However, OMB has previously approved significantly or uniquely affect small (NESHAP) for area source prepared the information collection requirements governments. feeds manufacturing facilities as subpart contained in the existing regulations E. Executive Order 13132: Federalism DDDDDDD in 40 CFR part 63. Today’s (subpart DDDDDDD, 40 CFR part 63) action contains the following under the provisions of the Paperwork corrections and clarifications: This direct final rule does not have Reduction Act, 44 U.S.C. 3501 et seq., federalism implications. It will not have 1. The date for new sources to submit and has assigned OMB control number substantial direct effects on the States, the Notification of Compliance Form is 2060–0635 (ICR 2354.02). The OMB corrected from ‘‘within 120 days of on the relationship between the national control numbers for EPA’s regulations government and the States, or on the startup, or by May 4, 2012, whichever in 40 CFR are listed in 40 CFR part 9. is later,’’ to within 120 days of startup distribution of power and or October 18, 2010, whichever is later. C. Regulatory Flexibility Act responsibilities among the various 2. Small facilities that are not subject The Regulatory Flexibility Act levels of government, as specified in to the requirement to install and operate generally requires an agency to prepare Executive Order 13132. This direct final a cyclone to control emissions from a regulatory flexibility analysis of any rule does not impose any requirements pelleting operations must submit rule subject to notice and comment on State and local governments. Thus, documentation of their initial average rulemaking requirements under the Executive Order 13132 does not apply daily feed production level in their Administrative Procedure Act or any to this rule. Notification of Compliance Status other statute unless the agency certifies F. Executive Order 13175: Consultation report. The final rule used the incorrect that the rule would not have a and Coordination With Indian Tribal term ‘‘initial daily pelleting production significant economic impact on a Governments level.’’ This is being corrected to substantial number of small entities. indicate that documentation of the Small entities include small businesses, This action does not have Tribal ‘‘initial average daily feed production small not-for-profit enterprises, and implications, as specified in Executive level’’ be submitted. small governmental jurisdictions. Order 13175 (65 FR 67249, November 9, 3. The requirement to submit the For the purposes of assessing the 2000). This direct final rule imposes no annual compliance certification report impacts of this rule on small entities, requirements on Tribal governments; is added. This requirement was in the small entity is defined as: (1) A small thus, Executive Order 13175 does not proposed rule but inadvertently deleted business as defined by the Small apply to this action. in the final rule. Business Administration’s regulations

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G. Executive Order 13045: Protection of populations and low-income ■ c. Revising paragraph (b) introductory Children From Environmental Health populations in the United States. text. and Safety Risks EPA has determined that this direct The revisions are to read as follows: final rule would not have EPA interprets Executive Order 13045 disproportionately high and adverse § 63.11624 What are the notification, (62 FR 19885, April 23, 1997) as reporting, and recordkeeping human health or environmental effects applying to those regulatory actions that requirements? on minority or low-income populations concern health or safety risks, such that because it increases the level of (a) * * * the analysis required under section 5– environmental protection for all affected (2) * * * If you are the owner or 501 of the Order has the potential to populations without having any operator of a new affected source, you influence the regulation. This action is disproportionately high and adverse must submit a Notification of not subject to Executive Order 13045 human health or environmental effects Compliance Status within 120 days of because it is based solely on technology on any population, including any initial startup, or by October 18, 2010, performance. minority or low-income population. whichever is later. * * * H. Executive Order 13211: Actions * * * * * K. Congressional Review Act Concerning Regulations That (iv) If you own or operate an affected Significantly Affect Energy Supply, The Congressional Review Act, 5 source that is not subject to the Distribution, or Use U.S.C. 801, et seq., as added by the requirement in § 63.11621(e) to install Small Business Regulatory Enforcement and operate a cyclone to control This direct final rule is not a Fairness Act of 1996, generally provides emissions from pelleting operations ‘‘ ’’ significant energy action as defined in that before a rule may take effect, the because your initial average daily feed Executive Order 13211 (66 FR 28355, agency promulgating the rule must production level was 50 tpd or less, May 22, 2001) because it is not likely to submit a rule report, which includes a documentation of your initial average have a significant adverse effect on the copy of the rule, to each House of daily feed production level supply, distribution, or use of energy. Congress and to the Comptroller General determination. I. National Technology Transfer and of the United States. EPA will submit a (b) Annual compliance certification Advancement Act report containing these final rule report. You must, by March 1 of each amendments and other required year, prepare an annual compliance Section 12(d) of the National information to the U.S. Senate, the U.S. certification report for the previous Technology Transfer and Advancement House of Representatives, and the calendar year containing the Act of 1995 (‘‘NTTAA’’), Public Law Comptroller General of the United information specified in paragraphs 104–113 (15 U.S.C. 272 note) directs States prior to publication of the final (b)(1) through (b)(6) of this section. You EPA to use voluntary consensus rule amendments in the Federal must submit the report if you had any standards in its regulatory activities, Register. A major rule cannot take effect instance described by paragraph (b)(3) unless to do so would be inconsistent until 60 days after it is published in the or (b)(4) of this section. with applicable law or otherwise Federal Register. This action is not a impractical. Voluntary consensus * * * * * ‘‘major rule’’ as defined by 5 U.S.C. standards are technical standards (e.g., [FR Doc. 2010–17711 Filed 7–19–10; 8:45 am] 804(2). This direct final rule will be materials specifications, test methods, BILLING CODE 6560–50–P effective on November 2, 2010. sampling procedures, and business practices) that are developed or adopted List of Subjects for 40 CFR Part 63 by voluntary consensus standards GENERAL SERVICES Environmental protection, ADMINISTRATION bodies. NTTAA directs EPA to provide Administrative practice and procedure, Congress, through OMB, explanations Air pollution control, Hazardous 41 CFR Part 102–5 when the Agency decides not to use substances, Intergovernmental relations, available and applicable voluntary Reporting and recordkeeping [FMR Amendment 2010–02; FMR Case consensus standards. requirements. 2010–102–4; Docket 2010–0013, Sequence These direct final rule amendments 1] Dated: July 14, 2010. do not involve technical standards as RIN 3090–AJ05 defined in the NTTAA. Therefore, this Lisa P. Jackson, direct final rule is not subject to Administrator. Federal Management Regulation; NTTAA. ■ For the reasons set out in the Home-to-Work Transportation preamble, title 40, chapter I, part 63, J. Executive Order 12898: Federal AGENCY: subpart DDDDDDD of the Code of Office of Governmentwide Actions to Address Environmental Policy, General Services Administration Justice in Minority Populations and Federal Regulations is amended as follows: (GSA). Low-Income Populations ACTION: Final rule. Executive Order 12898 (59 FR 7629, PART 63—[AMENDED] February 16, 1994) establishes Federal SUMMARY: The General Services ■ 1. The authority citation for part 63 executive policy on environmental Administration is amending the Federal continues to read as follows: justice. Its main provision directs Management Regulation (FMR) to clarify Federal agencies, to the greatest extent Authority: 42 U.S.C. 7401, et seq. existing Home-to-Work Transportation practicable and permitted by law, to policy. This final rule updates and Subpart DDDDDDD—[Amended] make environmental justice part of their clarifies who is not covered by 41 CFR part 102–5. mission by identifying and addressing, ■ 2. Section 63.11624 is amended as as appropriate, disproportionately high follows: DATES: Effective Date: This final rule is and adverse human health or ■ a. Revising the second sentence of effective on July 20, 2010. environmental effects of their programs, paragraph (a)(2) introductory text; FOR FURTHER INFORMATION CONTACT: For policies, and activities on minority ■ b. Revising paragraph (a)(2)(iv); and clarification of content, contact Mr.

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James Vogelsinger, Office of List of Subjects in 41 CFR Part 102–5 greater) north of 39° 18’ N. lat. (off Great Governmentwide Policy, Office of Government property, Home-to-work Egg Inlet, NJ) is prohibited effective at Travel, Transportation, and Asset transportation, Motor vehicles. 11:59 p.m., July 18, 2010. This action is Management (MT), (202) 501–1764 or e- being taken to prevent overharvest of mail at [email protected]. For Dated: May 25, 2010. the 2010 Angling category quota information pertaining to status or Martha Johnson, northern area subquota for large publication schedules contact the Administrator of General Services. medium and giant BFT. Regulatory Secretariat, 1800 F Street, ■ For the reasons set forth in the DATES: Effective 11:59 p.m. on July 18, NW., Room 4041, Washington, DC preamble, GSA amends 41 CFR part 2010, through December 31, 2010. 20405, (202) 501–4755. Please cite FMR 102–5 as set forth below: FOR FURTHER INFORMATION CONTACT: case 2010–102–4. Sarah McLaughlin or Brad McHale, PART 102–5—HOME-TO-WORK SUPPLEMENTARY INFORMATION: 978–281–9260. TRANSPORTATION SUPPLEMENTARY INFORMATION: A. Background ■ 1. The authority citation for 41 CFR Regulations implemented under the Federal Management Regulation part 102–5 is revised to read as follows: authority of the Atlantic Tunas Convention Act (16 U.S.C. 971 et seq.) (FMR) part 102–5 was published in the Authority: 40 U.S.C. 121(c); 31 U.S.C. Federal Register on September 12, 2000 1344(e)(1). and the Magnuson-Stevens Fishery Conservation and Management Act (65 FR 54966) to establish policy ■ 2. Amend section § 102–5.20 by— (Magnuson-Stevens Act; 16 U.S.C. 1801 regarding home-to-work transportation. ■ (a) Revising paragraph (a); et seq.) governing the harvest of BFT by Section 102–5.20 defines who is not ■ (b) Removing paragraph (b); persons and vessels subject to U.S. covered by the policy within part 102– ■ (c) Redesignating paragraph (c) as jurisdiction are found at 50 CFR part 5. This final rule clarifies who is not paragraph (b); covered by the policy within part 102– ■ (d) Removing the period at the end of 635. Section 635.27 subdivides the U.S. BFT quota recommended by the 5. This final rule also refers readers to newly redesignated paragraph (b) and International Commission for the section 102–34.210 which addresses adding ‘‘; or’’ in its place; and when a Government motor vehicle can ■ (e) Adding a new paragraph (c). Conservation of Atlantic Tunas (ICCAT) be used for transportation between The revisions read as follows: among the various domestic fishing places of employment and mass transit categories, per the allocations § 102–5.20 Who is not covered by this facilities. established in the 2006 Consolidated part? Highly Migratory Species Fishery B. Executive Order 12866 * * * * * Management Plan (2006 Consolidated (a) Employees who use a passenger HMS FMP) (71 FR 58058, October 2, This final rule is excepted from the carrier in conjunction with official 2006). definition of ‘‘regulation’’ or ‘‘rule’’ under travel, including temporary duty (TDY) NMFS is required, under Section 3(d)(3) of Executive Order or relocation; § 635.28(a)(1), to file a closure notice 12866, Regulatory Planning and Review, with the Office of the Federal Register dated September 30, 1993 and, * * * * * for publication when a BFT quota is therefore, was not subject to review (c) Employees who use a passenger reached or is projected to be reached. under Section 6(b) of that Executive carrier for transportation between places On and after the effective date and time Order. of employment and mass transit facilities (see, e.g., 41 CFR 102–34.210). of such notification, for the remainder of C. Regulatory Flexibility Act [FR Doc. 2010–17666 Filed 7–19–10; 8:45 am] the fishing year, or for a specified period BILLING CODE 6820–14–P as indicated in the notification, fishing This final rule is not required to be for, retaining, possessing, or landing published in the Federal Register for BFT under that quota category is notice and comment as per the DEPARTMENT OF COMMERCE prohibited until the opening of the exemption specified in 5 U.S.C. 553 subsequent quota period or until such (a)(2); therefore, the Regulatory date as specified in the notice. Flexibility Act, 5 U.S.C. 601, et seq., National Oceanic and Atmospheric Administration The 2010 BFT quota specifications does not apply. However, this final rule established a quota of 5.2 mt of large is being published to provide 50 CFR Part 635 medium and giant BFT (measuring 73 transparency in the promulgation of inches curved fork length or greater) to Federal policies. RIN 0648–XX26 be harvested in the northern area, i.e., north of 39° 18’ N. lat. (off Great Egg D. Paperwork Reduction Act Atlantic Highly Migratory Species; Inlet, NJ) by vessels permitted in the Atlantic Bluefin Tuna Fisheries The Paperwork Reduction Act does HMS Angling or Charter/Headboat not apply because the changes to the AGENCY: National Marine Fisheries category (while fishing recreationally) FMR do not impose information Service (NMFS), National Oceanic and during 2010 (75 FR 30732, June 2, collection requirements that require the Atmospheric Administration (NOAA), 2010). On June 14 (75 FR 33531), NMFS approval of the Office of Management Commerce. announced three Angling category BFT and Budget under 44 U.S.C. 3501, et ACTION: Closure. fishery inseason actions, effective June seq. 12, 2010: a change to the daily retention E. Small Business Regulatory SUMMARY: NMFS closes the northern limit, closure of the southern area Enforcement Fairness Act area Angling category fishery for large trophy fishery, and a quota transfer of medium and giant (‘‘trophy’’) BFT for 1.7 mt from the Reserve to the northern This final rule is exempt from the remainder of 2010. Fishing for, area trophy fishery. The southern area Congressional review under 5 U.S.C. retaining, possessing, or landing large trophy BFT closure was based on 801 since it relates solely to agency medium and giant BFT (measuring 73 reported landings of trophy BFT via the management and personnel. inches (185 cm) curved fork length or North Carolina Tagging Program. NMFS

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transferred quota from the Reserve to BFT subquota. NMFS provides Multispecies Fishery Management Plan the Angling category so that 1.7 mt (the notification of closures by publishing (FMP), based on the most recent and amount established in the 2010 BFT the notice in the Federal Register, e- best available scientific information. quota specifications) would be available mailing individuals who have Specifically, this emergency action for the landing of trophy BFT in the subscribed to the Atlantic HMS News increases fishing year (FY) 2010 pollock northern area. NMFS has determined electronic newsletter, and updating the catch levels specified by Framework that the northern area trophy BFT information posted on the Atlantic Adjustment (FW) 44, including subquota has been reached. Therefore, Tunas Information Line and on Overfishing Levels (OFLs), Acceptable through December 31, 2010, fishing for, www.hmspermits.gov. Biological Catches (ABCs), Annual retaining, possessing, or landing large These fisheries are currently Catch Limits (ACLs), ACL components, medium or giant BFT north of 39° 18’ underway and delaying this action incidental Total Allowable Catches N. lat. by persons aboard vessels would be contrary to the public interest (TACs) for special management permitted in the HMS Angling category as it could result in excessive BFT programs, and sector Annual Catch and the HMS Charter/Headboat category landings that may result in future Entitlements (ACEs). The ACL (while fishing recreationally) must cease potential quota reductions for the components include sub-ACLs for the at 11:59 p.m. on July 18, 2010. Angling category. NMFS must close the common pool and sectors. This action is The intent of this closure is to prevent northern area trophy BFT fishery before intended to provide additional fishing overharvest of the Angling category additional landings of these size BFT opportunities, consistent with the FMP northern area trophy BFT subquota. accumulate. Therefore, the AA finds and the Magnuson-Stevens Act. Anglers are reminded that all non- good cause under 5 U.S.C. 553(b)(B) to DATES: Effective July 15, 2010, through tournament BFT landed under the waive prior notice and the opportunity January 11, 2011. Comments must be Angling category quota must be reported for public comment. For all of the above received by August 19, 2010. within 24 hours of landing either online reasons, there is good cause under 5 FOR FURTHER INFORMATION CONTACT: at www.hmspermits.gov or by calling U.S.C. 553(d) to waive the 30–day delay Thomas A. Warren, Fishery Policy (888) 872–8862. In Maryland and North in effectiveness. Carolina, vessel owners must report Analyst, (978) 281–9347, fax (978) 281– This action is being taken under 50 9135. their recreational tuna landings at state- CFR 635.28(a)(1), and is exempt from SUPPLEMENTARY INFORMATION: operated reporting stations. For review under Executive Order 12866. additional information on these Authority: 16 U.S.C. 971 et seq. and 1801 Background programs, including reporting station et seq. locations, please call (410) 213–1351 This final rule implements emergency (Maryland) or (800) 338–7804 (North Dated: July 15, 2010. measures, authorized by section 305(c) Carolina). Galen Tromble, of the Magnuson-Stevens Act, to revise Anglers may catch and release (or tag Acting Director, Office of Sustainable current pollock catch limits and release) BFT of all sizes, subject to Fisheries, National Marine Fisheries Service. immediately. On May 1, 2010, NMFS the requirements of the catch-and- [FR Doc. 2010–17695 Filed 7–15–10; 4:15 pm] implemented catch limits developed by release and tag-and-release programs at BILLING CODE 3510–22–S the New England Fishery Management § 635.26. Anglers are also reminded that Council (Council) under FW 44 (75 FR all released BFT must be returned to the 18356; April 9, 2010) for all groundfish sea immediately with a minimum of DEPARTMENT OF COMMERCE stocks, including pollock, for FY 2010 injury and without removing the fish through 2012. The catch levels specified from the water, consistent with National Oceanic and Atmospheric by FW 44 included OFLs, ABCs, ACLs, requirements at § 635.21(a)(1). Administration ACL components, and incidental TACs If needed, subsequent Angling for special management programs. The category adjustments will be published 50 CFR Part 648 ACL components included sub-ACLs for in the Federal Register. In addition, [Docket No. 100427197–0207–01] the common pool and sectors. On May fishermen may call the Atlantic Tunas 26, 2010, NMFS published (75 FR Information Line at (888) 872–8862 or RIN 0648–AY86 29459) adjusted ACL subcomponents and adjusted sector ACEs in order to (978) 281–9260, or access Fisheries of the Northeastern United www.hmspermits.gov, for updates. reflect changes to the sector rosters just States; Northeast Multispecies prior to the start of FY 2010. Classification Fishery; Pollock Catch Limit Revisions The FW 44 catch levels for all stocks, The Assistant Administrator for AGENCY: National Marine Fisheries including pollock, were based upon the NMFS (AA) finds that it is impracticable Service (NMFS), National Oceanic and most recent scientific information and contrary to the public interest to Atmospheric Administration (NOAA), available at that time, i.e., the stock provide prior notice of, and an Commerce. assessments conducted by the opportunity for public comment on, this ACTION: Emergency rule; request for Groundfish Assessment Review Meeting action for the following reasons: comments. (GARM III) in 2008, as well as The regulations implementing the subsequent pertinent information for Consolidated HMS FMP provide for SUMMARY: NMFS issues this final rule pollock, as explained below. GARM III inseason retention limit adjustments to pursuant to its authority to issue originally characterized pollock as respond to the unpredictable nature of emergency measures under the overfished and subject to overfishing BFT availability on the fishing grounds, Magnuson-Stevens Fishery and, in accordance with required the migratory nature of this species, and Conservation and Management Act procedures, NMFS notified the Council the regional variations in the BFT (Magnuson-Stevens Act). This of the status of the stock on September fishery. The closure of the northern area emergency action implements new stock 2, 2008. Subsequent correspondence Angling category trophy fishery is status determination criteria for pollock resulted in two modifications to the necessary to prevent overharvest of the and associated increases in pollock characterization of the status of the Angling category northern area trophy catch limits under the Northeast (NE) pollock biomass. A September 16, 2008,

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letter from the Council to NMFS noted extent as would be expected under the the catch associated with fishing that these determinations regarding normal rulemaking process. NMFS mortality that meets the rebuilding stock status were based upon erroneous policy guidelines further provide that requirements (whichever is lower). The methods. NMFS noted this error and emergency action is justified for certain duration of this action is limited by the subsequently made corrections[t3] to the situations where emergency action Magnuson-Stevens Act to 180 days, methods and revised the would prevent significant direct however NMFS will re-evaluate the characterization of the pollock stock economic loss, or to preserve a status of the fishery at the end of the 180 status as approaching an overfished significant economic opportunity that days and may extend this action in condition, but still likely subject to otherwise might be foregone. order to make the catch limits effective overfishing (October 3, 2008, NMFS The new information from the pollock for the duration of the fishing year letter to the Council). The stock status benchmark stock assessment considered (through April 30, 2011), consistent determination was revised a third time to be a ‘‘recently discovered with the authority in the Magnuson- in order to incorporate the most recent circumstance,’’ which, in the context of Stevens Act to extend emergency scientific information (fall 2008 trawl the current FMP and low pollock catch actions for up to an additional 186 days. survey data), which again characterized limits specified for FY 2010, has been Based upon the stock assessment the pollock stock as overfished and determined by NMFS to represent an results, NMFS is revising the stock subject to overfishing (February 6, 2009, emergency situation. This circumstance Status Determination Criteria for NMFS letter to the Council). is the results of the recently conducted Due to the high uncertainty of the assessment of pollock, which pollock. The revised biomass target determination of pollock stock status (as significantly revises the status of this parameter (Bmsy proxy) is SSB msy (40 noted in the GARM III stock assessment stock. Although the new assessment has percent Maximum Spawning Potential conclusions), the NMFS Northeast been ongoing for a number of weeks, it (MSP)) (91,000 mt); and the maximum Fisheries Science Center, in conjunction was not possible to have predicted its fishing mortality threshold is the Fmsy with the Northeast Region Coordinating final outcome; nor could the results proxy (F 40 percent MSP) (0.25). Council, which provides advice on the have been expedited due to the need to The revised pollock catch limits are scheduling and prioritization of stock convene the necessary scientists, several contained in Tables 1 and 2 below. assessments, agreed to schedule another of whom are not affiliated with NOAA, Consistent with the FMP, the incidental pollock stock assessment in 2010. In to complete the assessment and its peer catch TAC is divided between the addition, the Council’s Scientific and review. Regular B DAS Program (84 percent) Statistical Committee (SSC) The emergency presents serious and the Closed Area I Hook Gear recommended that pollock should be conservation and management problems Haddock Special Access Program (14 reassessed as soon as possible so that because the low catch limits for pollock percent). they may have a more reliable basis for could result in substantially reduced any projections and catch advice. The fishing effort and decreased catch and TABLE 1. REVISED POLLOCK CATCH 2010 pollock benchmark stock revenue especially in light of the LEVELS FOR FY 2010 assessment was scheduled as soon as multiple species included in the fishery. practicable, after considering the When the projected catch of the ACL for Current Re- availability date of pertinent data, and a single stock such as pollock triggers a Specification vised other constraints. reduction or cessation of fishing effort Pollock Catch Limit Speci- (mt) FW 44 fication The pollock peer reviewed benchmark (as required by the FMP for common Adjustment (mt) stock assessment review (SAW 50) was pool and sector vessels, respectively), completed during the first week of June numerous other stocks that are caught OFL of Catch 5,084 25,200 2010, and the final summary report was concurrently with pollock may also be completed on July 14, 2010. The reduced. ABC 3,293 19,800 conclusions in this report indicate that NMFS has determined that the overfishing is not occurring, the stock is current situation meets the criteria for State Waters ACL 200 1,188 not overfished, and the stock is rebuilt. emergency action. Because this is a subcomponent Based on this information, the estimates Secretarial emergency action, not a Other ACL sub- 200 1,188 for spawning stock biomass size and Council action, the involvement of the component fishing mortality in 2009 are 196,000 mt SSC in the specification of ABC is not (2.2 times Bmsy proxy) and 0.07 (28 specifically required, although the Groundfish sub-ACL 2,748 16,553 percent of Fmsy), respectively. emergency rule must still be consistent NMFS policy guidelines for the use of with the best scientific information Sector sub-ACL 2,686 16,178 emergency rules (62 FR 44421; August available. Although NMFS could wait 21, 1997) specify the following three for the SSC to consider the new Common Pool sub- 62 375 criteria that define what an emergency assessment, the time necessary to ACL situation is, and justification for final complete such a process would unduly Incidental Catch 1.24 7.5 rulemaking: (1) The emergency results delay the possibility of meeting the TAC from recent, unforeseen events or emergency exigencies of this matter. recently discovered circumstances; (2) Due to the urgency of this issue, NMFS the emergency presents serious has relied upon the Amendment 16 TABLE 2. POLLOCK ACE BY SECTOR conservation or management problems control rule for ABC established by the (MT) in the fishery; and (3) the emergency SSC to ensure consistency with the can be addressed through emergency SSC’s most recent advice concerning the Re- Current ACE vised regulations for which the immediate appropriate level of ABC. Specifically, Sector (mt) FW 44 ACE benefits outweigh the value of advance the control rule states that for most Adjustment (mt) notice, public comment, and stocks, including pollock, the ABC deliberative consideration of the should be determined as the catch Fixed Gear 214 1,290 impacts on participants to the same associated with 75 percent of Fmsy, or

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TABLE 2. POLLOCK ACE BY SECTOR likely that pollock will serve as a provide for prior notice and opportunity (MT)—Continued constraining stock. The increased for the public to comment, or to delay pollock catch limit is specified in the for 30 days the effective date of this context of the FMP, which currently Current ACE Re- emergency regulation, under the Sector (mt) FW 44 vised authorizes the NMFS NE Regional provisions of section 553(b) and (d) of ACE Administrator to adjust trip limits in- Adjustment (mt) the Administrative Procedure Act. As season to prevent the ACL from being more fully explained above, the reasons NCCS 12 73 exceeded or to facilitate additional justifying promulgation of this rule on catch. an emergency basis make solicitation of Due to the increased amount of NEFS 2 338 2,034 public comment or a delay in pollock catch allowed under this NEFS 3 202 1,218 emergency action, the increased pollock effectiveness contrary to the public ACL represents an increase of potential interest. This action would result in the NEFS 4 155 934 revenue of $15 million, assuming recent benefit of the revenues associated with larger pollock catch limits. This action NEFS 5 11 68 average prices for pollock, and assuming that the full ACL for pollock will be could not allow for prior public NEFS 6 88 529 harvested. This estimate of pollock comment because the scientific review revenue is likely high, given the level of process and determination could not NEFS 7 21 124 recent pollock landings. The primary have been completed any earlier due to economic benefit of the revised ACL is the inherent time constraints associated NEFS 8 18 106 expected to be associated with reducing with such process. NEFS 9 105 632 the likelihood that an accountability If this rulemaking was delayed to measure would be triggered for the allow for notice and comment and a 30- common pool and for sectors. The NEFS 10 40 239 day delay in effectiveness, the current triggering of accountability measures quota for some sectors could be NEFS 11 255 1, 533 would have reduced or precluded access to other stocks and the associated exceeded, which could result in NEFS 12 1 9 revenue. triggering restrictive and economically harmful management actions that NEFS 13 61 364 Even with a total increase in the revised sector specifications of 13,492 otherwise could have been avoided. The Port Clyde Commu- 117 707 mt of pollock, two sectors, NEFS 2 and time necessary to provide for prior nity NEFS 11, will still be left with less notice, opportunity for public comment, pollock ACE than the amount landed by and delayed effectiveness for this action Sustainable Harvest 1,047 6,309 the collective sector membership during may prevent some vessels from targeting FY 2008. That is, even though the pollock, or could severely curtail fishing Tri-State 2 9 revised aggregate pollock ACE is higher operations if the current ACL is reached Total 2,686 16,178 than the FY 2008 landings, the ACE for prior to implementation of the increased these ectors is still lower than the sector catch limit. In the interest of receiving All ACE values for sectors assume that members’ FY 2008 combined pollock each sector member has a valid permit for FY public input on this action, the revised 2010. landings. However, the deficit for the assessment upon which this action was NCCS: Northeast Coastal Communities NEFS 2 sector may be readily overcome, based is made available to the public, Sector; NEFS: Northeast Fishery Sectors since the operations plan for NEFS 4, and this action requests public An environmental assessment (EA) which would receive an ACE of over 2 comments on that document and the was prepared that analyzes the impact million lb (934 mt), states that NEFS 4 provisions in this rule. will be a lease-only sector in order to of the revised pollock catch limits for This emergency rule has been the duration of a year, and compares the provide additional ACE to NEFS 2 and NEFS 3. The regulations would also determined to be not significant for impact to the current catch limits purposes of E.O. 12866. specified for FY 2010 (i.e., the No allow NEFS 11 to lease additional ACE. Action Alternative). The revised level of With[t9] respect to the impact of the This rule is exempt from the pollock catch is consistent with revised pollock catch limit on procedures of the Regulatory Flexibility sustaining the pollock biomass over the individual members of sectors, Act to prepare a regulatory flexibility long-term at the level associated with approximately 16 percent of permits analysis because the rule is issued that joined a sector and that had a non- maximum sustainable yield (Bmsy) and without opportunity for prior public fishing at a sustainable level of mortality zero pollock Potential Sector comment. Contribution, will still have less pollock (Fmsy). Both scientific and management Authority: 16 U.S.C. 1801 et seq. uncertainty are accounted for in this than they landed during FY 2008. The Council is considering revising catch level, so the risks of negative Dated: July 14, 2010 pollock catch limits for FY 2011 and biological impacts have been John Oliver, 2012 through a future rulemaking. minimized. The revision to the FY 2010 Deputy Assistant Administrator for pollock catch limits contained in this Classification Operations, National Marine Fisheries rule may result in the catch of a NMFS has determined that this rule is Service. substantially greater amount of pollock necessary to respond to an emergency [FR Doc. 2010–17693 Filed 7–15–10; 4:15 pm] than under the No Action Alternative. situation and is consistent with the BILLING CODE 3510–22–S The larger catch limit for pollock may Magnuson-Stevens Act and other result in greater fishing effort and applicable law. greater catch of other stocks in addition The Assistant Administrator for to pollock, as compared to the current Fisheries, NOAA, finds it impracticable pollock catch limits, because it is not and contrary to the public interest to

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DEPARTMENT OF COMMERCE voluntarily submitted by the commenter this directed fishing allowance will be may be publicly accessible. Do not reached after 48 hours. Consequently, National Oceanic and Atmospheric submit Confidential Business NMFS is prohibiting directed fishing for Administration Information or otherwise sensitive or Pacific ocean perch by entry level trawl protected information. vessels in the Central Regulatory Area of 50 CFR Part 679 NMFS will accept anonymous the GOA, effective 1200 hrs, A.l.t., July comments (enter N/A in the required [Docket No. 0910131362–0087–02] 17, 2010. fields, if you wish to remain RIN 0648–XX65 anonymous). Attachments to electronic Classification comments will be accepted in Microsoft This action responds to the best Fisheries of the Exclusive Economic Word, Excel, WordPerfect, or Adobe available information recently obtained Zone Off Alaska; Pacific Ocean Perch portable document file (pdf) formats for Catcher Vessels Participating in the only. from the fishery. The Assistant Rockfish Entry Level Trawl Fishery in Administrator for Fisheries, NOAA the Central Regulatory Area of the Gulf FOR FURTHER INFORMATION CONTACT: (AA), finds good cause to waive the of Alaska Steve Whitney, 907–586–7228. requirement to provide prior notice and SUPPLEMENTARY INFORMATION: NMFS opportunity for public comment AGENCY: National Marine Fisheries manages the groundfish fishery in the pursuant to the authority set forth at 5 Service (NMFS), National Oceanic and GOA exclusive economic zone U.S.C. 553(b)(B) and 679.25(c)(1)(ii) as Atmospheric Administration (NOAA), according to the Fishery Management such requirement is impracticable and Commerce. Plan for Groundfish of the Gulf of contrary to the public interest. This ACTION: Temporary rule; modification Alaska (FMP) prepared by the North requirement is impracticable and of closure. Pacific Fishery Management Council contrary to the public interest as it under authority of the Magnuson- would prevent NMFS from responding SUMMARY: NMFS is reopening directed Stevens Fishery Conservation and to the most recent fisheries data in a fishing for Pacific ocean perch by trawl Management Act. Regulations governing catcher vessels participating in the timely fashion and would delay the fishing by U.S. vessels in accordance opening of Pacific ocean perch in the rockfish entry level fishery in the with the FMP appear at subpart H of 50 Central Regulatory Area of the Gulf of Central Regulatory Area of the GOA. CFR part 600 and 50 CFR part 679. NMFS was unable to publish a notice Alaska (GOA). This action is necessary NMFS closed the directed fishery for providing time for public comment to fully use the 2010 directed fishing Pacific ocean perch allocated to trawl because the most recent, relevant data allowance of Pacific ocean perch for catcher vessels participating in the entry trawl catcher vessels participating in the level rockfish fishery in the Central only became available as of July 9, 2010. rockfish entry level fishery in the Regulatory Area of the GOA under The AA also finds good cause to Central Regulatory Area of the GOA. § 679.20(d)(1)(iii) on July 3, 2010 (75 FR waive the 30–day delay in the effective DATES: Effective 1200 hrs, Alaska local 38396, July 7, 2010). date of this action under 5 U.S.C. time (A.l.t.), July 15, 2010, through 1200 NMFS has determined that 553(d)(3). This finding is based upon hrs, A.l.t., July 17, 2010. Comments approximately 209 mt of Pacific ocean the reasons provided above for waiver of must be received at the following perch remain in the directed fishing prior notice and opportunity for public address no later than 4:30 p.m., A.l.t., allowance in the Central Regulatory comment. July 30, 2010. Area of the GOA. Therefore, in Without this inseason adjustment, ADDRESSES: Send comments to Sue accordance with § 679.25(a)(1)(i), NMFS could not allow the fishery for Salveson, Assistant Regional (a)(2)(i)(C) and (a)(2)(iii)(D), and to fully Pacific ocean perch by entry level trawl Administrator, Sustainable Fisheries utilize the allowance of the 2010 TAC vessels in the Central Regulatory Area of Division, Alaska Region, NMFS, Attn: of Pacific ocean perch in Statistical Area the GOA to be harvested in an expedient Ellen Sebastian. You may submit 630, NMFS is terminating the previous manner and in accordance with the comments, identified by 0648–XX65, by closure and is reopening directed regulatory schedule. Under any one of the following methods: fishing for Pacific ocean perch in the § 679.25(c)(2), interested persons are • Electronic Submissions: Submit all Central Regulatory Area of the GOA. invited to submit written comments on electronic public comments via the This will enhance the socioeconomic this action to the above address until Federal eRulemaking Portal website at well-being of harvesters dependent July 30, 2010. upon Pacific ocean perch in this area. http://www.regulations.gov. This action is required by§ 679.20 and • Mail: P. O. Box 21668, Juneau, AK The Administrator, Alaska Region § 679.25 and is exempt from review 99802. (Regional Administrator) considered the • Fax: (907) 586–7557. following factors in reaching this under Executive Order 12866. • Hand delivery to the Federal decision: (1) The current catch of Pacific Authority: 16 U.S.C. 1801 et seq. Building: 709 West 9th Street, Room ocean perch by the Rockfish Pilot Dated: July 15, 2010. 420A, Juneau, AK. Program entry level trawl vessels and, All comments received are a part of (2) the harvest capacity and stated intent Galen Tremble, the public record and will generally be on future harvesting patterns of vessels Acting Director, Office of Sustainable posted to http://www.regulations.gov participating in this fishery. Fisheries, National Marine Fisheries Service. without change. All Personal Identifying In accordance with § 679.20(d)(1)(iii), [FR Doc. 2010–17689 Filed 7–15–10; 4:15 pm] Information (e.g., name, address) the Regional Administrator finds that BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 75, No. 138

Tuesday, July 20, 2010

This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION section of XI. Paperwork Reduction Act Statement contains notices to the public of the proposed this document. You may submit XII. Regulatory Analysis: Availability issuance of rules and regulations. The comments by any one of the following XIII. Regulatory Flexibility Certification purpose of these notices is to give interested methods. XIV. Backfit Analysis persons an opportunity to participate in the Federal Rulemaking Web Site: Go to rule making prior to the adoption of the final I. Submitting Comments and Accessing rules. http://www.regulations.gov and search Information for documents filed under Docket ID NRC–2008–0619. Address questions Comments submitted in writing or in electronic form will be posted on the NUCLEAR REGULATORY about NRC dockets to Carol Gallagher, NRC Web site and on the Federal COMMISSION telephone 301–492–3668; e-mail [email protected]. rulemaking Web site http:// 10 CFR Part 73 Mail comments to: Secretary, U.S. www.regulations.gov. Because your Nuclear Regulatory Commission, comments will not be edited to remove RIN 3150–AI25 Washington, DC 20555–0001, ATTN: any identifying or contact information, [NRC–2008–0619] Rulemakings and Adjudications Staff. the NRC cautions you against including E-mail comments to: any information in your submission that Requirements for Fingerprint-Based [email protected]. If you you do not want to be publicly Criminal History Records Checks for do not receive a reply e-mail confirming disclosed. The NRC requests that any Individuals Seeking Unescorted that we have received your comments, party soliciting or aggregating comments Access to Research or Test Reactors contact us directly at 301–415–1677. received from other persons for submission to the NRC inform those AGENCY: Nuclear Regulatory Hand Deliver comments to: 11555 persons that the NRC will not edit their Commission. Rockville Pike, Rockville, Maryland 20852 between 7:30 a.m. and 4:15 p.m. comments to remove any identifying or ACTION: Proposed rule. during Federal workdays (Telephone contact information, and therefore, they SUMMARY: The Nuclear Regulatory 301–415–1677). should not include any information in Commission (NRC) is proposing to Fax comments to: Secretary, U.S. their comments that they do not want amend its regulations to require Nuclear Regulatory Commission at 301– publicly disclosed. research and test reactor (RTR) licensees 415–1101. You can access publicly available (also called nonpower reactor licensees) You may submit comments on the documents related to this document, to obtain a fingerprint-based criminal information collections by the methods including the following documents, history records check before granting indicated in the Paperwork Reduction using the following methods: any individual unescorted access to Act Statement in Section XI of this NRC’s Public Document Room (PDR): their facilities. This action is necessary document. The public may examine and have to comply with the requirements of FOR FURTHER INFORMATION CONTACT: copied for a fee, publicly available Section 652 of the Energy Policy Act of Timothy A. Reed, Office of Nuclear documents at the NRC’s PDR, Room O– 2005 (EPAct), which amended Section Reactor Regulation, U.S. Nuclear 1F21, One White Flint North, 11555 149 of the Atomic Energy Act of 1954, Regulatory Commission, Washington, Rockville Pike, Rockville, Maryland. as amended (AEA), to require DC 20555–0001, telephone 301–415– NRC’s Agencywide Documents Access fingerprinting and a Federal Bureau of 1462, e-mail [email protected]; or and Management System (ADAMS): Investigation (FBI) identification and a S. Elizabeth Reed, Office of Nuclear Publicly available documents created criminal history records check of any Reactor Regulation, U.S. Nuclear or received at the NRC are available person who is permitted unescorted Regulatory Commission, Washington, electronically at the NRC’s Electronic access to a utilization facility. DC 20555–0001, telephone 301–415– Reading Room at http://www.nrc.gov/ DATES: Submit comments on the rule by 2130, e-mail [email protected]. reading-rm/adams.html. From this page, October 4, 2010. Submit comments on SUPPLEMENTARY INFORMATION: the public can gain entry into ADAMS, the information collection aspects of which provides text and image files of I. Submitting Comments and Accessing this rule by September 20, 2010. Information NRC’s public documents. If you do not Comments received after the above II. Background have access to ADAMS or if there are dates will be considered if it is practical III. Public Comment on Advance Notice of problems in accessing the documents to do so, but assurance of consideration Proposed Rulemaking and Public located in ADAMS, contact the NRC’s cannot be given to comments received Workshop PDR reference staff at 1–800–397–4209, after these dates. IV. Discussion or 301–415–4737, or by e-mail to ADDRESSES: Please include Docket ID V. Section-by-Section Analysis [email protected]. NRC–2008–0619 in the subject line of VI. Request for Stakeholder Feedback on Federal Rulemaking Web Site: Public Additional Topics your comments. For instructions on VII. Agreement State Compatibility comments and supporting materials submitting comments and accessing VIII. Plain Language related to this proposed rule can be documents related to this action, see IX. Voluntary Consensus Standards found at http://www.regulations.gov by Section I, ‘‘Submitting Comments and X. Finding of No Significant Environmental searching on Docket ID NRC–2008– Accessing Information’’ in the Impact: Availability 0619.

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Document PDR ADAMS Web

EA–07–074, Issuance of Order Imposing Fingerprinting and Criminal History Records Check Re- X ML070750140 X quirements for Unescorted Access to Research and Test Reactors, issued April 30, 2007 (72 FR 25337; May 4, 2007). EA–07–098, Issuance of Order Imposing Fingerprinting and Criminal History Records Check Re- X ML072050494 X quirements for Unescorted Access to the General Atomics Research and Test Reactors, issued August 1, 2007 (72 FR 44590; August 8, 2007). Advance Notice of Proposed Rulemaking, published on April 14, 2009 (74 FR 17115) ...... X ML090920147 X Regulatory Analysis ...... X ML101670084 X Regulatory Analysis Appendix ...... ML100610020 ...... Proposed Rule Information Collection Analysis ...... X ML101670110 X

II. Background Section 652 of the EPAct, enacted on records checks for individuals Before the terrorist actions of August 8, 2005, amended Section 149 of requesting unescorted access to these September 11, 2001, NRC regulations in the AEA to require fingerprinting and facilities. The NRC staff was directed to 10 CFR 73.60 and 10 CFR 73.67 FBI identification and criminal history issue orders to RTR licensees to require imposed physical protection records checks for individuals fingerprinting only for individuals with requirements on RTRs that included requesting unescorted access to any unescorted access to risk-significant measures for storing and using special utilization facility, including RTRs, or areas or materials within the facilities. nuclear material in controlled access radioactive material or other property The Commission also directed the NRC areas, monitoring the controlled access subject to regulation by the NRC that the staff to proceed with a rulemaking to areas for unauthorized activities, and NRC determines to be of such determine if fingerprint-based criminal ensuring a response to all unauthorized significance to the public health and history records checks should be activities to protect special nuclear safety or the common defense and required for additional personnel. material from theft or diversion. security as to warrant fingerprinting and The security of RTRs is regulated Additionally, 10 CFR 73.60(f) background checks. Although the NRC through requirements located in Part 73 implemented the Commission’s had previously taken several steps to of the Commission’s regulations. The authority to impose alternative or provide additional regulatory oversight specific security measures that are additional security measures for the for unescorted access to RTRs, the required vary depending on several protection against radiological sabotage EPAct granted the NRC additional factors, which include the quantity and for RTRs licensed to operate at power authority to impose FBI identification type of special nuclear material levels at or above two megawatts and criminal history records checks possessed by the licensee, as well as the thermal (MWt). Under this provision, based on fingerprints of any person power level at which the licensee is several RTRs have implemented such permitted unescorted access to various authorized to operate. In response to the additional measures. Subsequent to NRC-regulated facilities, including Commission’s March 12, 2007, September 11, 2001, the NRC evaluated RTRs. directive, the NRC imposed the adequacy of security at RTRs and In SECY–05–0201, ‘‘Implementation fingerprinting requirements for considered whether additional actions of the Energy Policy Act of 2005,’’ dated unescorted access to special nuclear should be taken to help ensure the October 31, 2005, the NRC staff material on the applicable RTR trustworthiness and reliability of informed the Commission of its plan for licensees by order (Order EA–07–074, individuals with unescorted access. implementing the NRC’s responsibilities ‘‘Issuance of Order Imposing RTRs were advised to consider taking under the EPAct and requested Fingerprinting and Criminal History immediate additional precautions, Commission approval of the staff’s Records Check Requirements for including observation of activities funding recommendation for fiscal year Unescorted Access to Research and Test within their facility. The NRC evaluated 2006. The Commission approved the Reactors,’’ (72 FR 25337; May 4, 2007) these additional measures at each staff’s recommendations in Staff and Order EA–07–098, ‘‘Issuance of facility during the remainder of 2001. Requirements Memorandum (SRM) Order Imposing Fingerprinting and From 2002 through 2004, RTRs dated January 5, 2006, and directed the Criminal History Records Check voluntarily implemented compensatory staff to recommend appropriate interim Requirements for Unescorted Access to measures (CM) that included site- regulatory actions that the NRC should the General Atomics’ Research and Test specific background investigations for implement while it developed the Reactors’’ (72 FR 44590; August 8, 2007), individuals granted unescorted access. generic requirements for granting ADAMS Accession Nos. ML070750140 Depending on local restrictions, such as unescorted access, including the and ML072050494, respectively). university rules, some of these provisions in Section 652 of the EPAct Specifically, the orders state that: background investigations included pertaining to fingerprinting. An individual who is granted ‘unescorted provisions for Federal Bureau of In SECY–07–001, ‘‘Interim access’ could exercise physical control over Investigation (FBI) fingerprint-based Implementation of Fingerprinting the special nuclear material possessed by the criminal history records checks, while Requirements in section 652 of the licensee, which would be of significance to ’’ the common defense and security or would checks at other RTRs include provisions Energy Policy Act of 2005, dated adversely affect the health and safety of the for local or State law enforcement January 12, 2007, the NRC staff public, such that the special nuclear material fingerprint-based criminal history provided information and could be used or removed in an unauthorized records checks. Investigations at some recommendations to the Commission on manner without detection, assessment, or RTRs did not include any its EPAct interim implementation plan. response by systems or persons designated to fingerprinting. The NRC has also In an SRM dated March 12, 2007, the detect, assess or respond to such conducted security assessments at Commission directed the NRC staff to unauthorized use or removal. certain RTRs, which helped to identify issue orders to RTRs to require In implementing the requirement of risk-significant areas and materials. fingerprint-based criminal history the EPAct on an interim basis, the

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orders were issued requiring III. Public Comment on Advance Notice NRC Response: The NRC notes that fingerprinting only for individuals with of Proposed Rulemaking and Public § 73.57 was amended October 24, 2008 unescorted access to risk-significant Workshop (73 FR 63546) to require each licensee materials (i.e., fuel), within the research On June 4, 2009, the NRC held a authorized to engage in an activity and test reactor facilities. Licensees public workshop to answer stakeholder subject to regulation by the were required to submit fingerprints of questions about the ANPR and to obtain Commission, including RTR licensees, individuals who were seeking or stakeholder input on the follow-on to comply with the requirements of currently had unescorted access. rulemaking to require fingerprinting for § 73.57. Section 73.57 contains the fingerprinting requirements for access to Individuals who had previously been unescorted access at RTR facilities. In SGI. As a result, the NRC’s regulations subjected to fingerprinting that would addition to the comments received in § 73.57 already address access to SGI satisfy the requirements for unescorted during the public workshop, the NRC for RTR licensees and, as such, access (e.g., access to Safeguards received seven comment letters from inclusion of additional provisions for Information) did not need to be interested parties: Four from RTR access to SGI in this rulemaking would licensees, one from the Nuclear Energy fingerprinted again. These orders be duplicative and are unnecessary. required that a reviewing official Institute, one from the National Comment: One commenter stated that consider the results of the FBI criminal Organization of Test, Research and the NRC should consider how it can history records check in conjunction Training Reactors, and one from an create a system that can address with other applicable requirements to individual. fingerprint-based criminal history determine whether an individual may A. General Comments records checks ‘‘for other sources’’ be granted or allowed continued besides the reactor, such as NRC Comment: One commenter stated that unescorted access. The reviewing Agreement State licensed sources which he had no issue with the proposal and official was allowed to be the same would also require fingerprint-based would not be affected. Five commenters official previously approved by NRC for criminal history records checks. and several of those participating in the the Safeguards Information (SGI) order NRC Response. Although the public workshop expressed the view (Order EA–06–203, ‘‘Issuance of Order commenter does not clarify the meaning that the NRC should codify the NRC Imposing Fingerprinting and Criminal of ‘‘other sources,’’ the NRC interprets imposed unescorted access orders (EA– this comment to mean sources beyond History Records Check Requirements for 07–074 and EA–07–098) and not impose Access to Safeguards Information,’’ SNM within a utilization facility. The any additional requirements. Several NRC has decided to restrict the scope of dated September 29, 2006; ADAMS commenters stated that the regulation Accession No. ML061510049) that this rulemaking to the implementation should be identical to the orders and of only the requirements in Section 149 implemented the EPAct fingerprinting that expanding the requirement beyond and criminal history records check of the AEA for RTR licensees the orders is neither justifiable nor (fingerprint-based criminal history requirements for individuals who seek effective, and that it would cause an records check for unescorted access to access to SGI. The unescorted access undue burden on the affected licensees. RTR facilities), although the proposed order provided that an NRC-approved One commenter indicated that any rule does recognize that if the RTR reviewing official was the only change in requirements beyond those in licensee has conducted fingerprinting in individual who could make the the orders should be based on solving accordance with the NRC’s regulations unescorted access determination. specific problems to reduce burden on for other access purposes (e.g., access to facilities, or solve implementation Advance Notice of Proposed SGI), the licensee would not be required issues that allow a poor practice to exist. Rulemaking (ANPR) to re-fingerprint. With regard to security NRC Response: The NRC understands requirements, including fingerprinting On April 14, 2009 (74 FR 17115), the the concerns of the stakeholders and requirements, for other sources, the NRC NRC published an ANPR to obtain recognizes its obligation under Section has a rulemaking underway that would stakeholder views on the issues 104c of the AEA to impose only the address the Agreement State licensed associated with the proposal to require minimum amount of regulation needed byproduct material sources (SECY–09– a fingerprint-based criminal history for RTR licensees. It is the NRC’s intent 0181). records check for individuals granted in this proposed rulemaking to Comment: One commenter stated that unescorted access to RTRs. The ANPR implement the statutory requirements in wording suggested in the ANPR such as Section 149 of the AEA, which the NRC indicated that the NRC was beginning ‘‘specific procedures for the conduct of is required to implement, while at the ’’ the process of establishing generic fingerprinting codifies the need for same time complying with the multiple procedures that provide requirements for RTR licensees to obtain constraints of Section 104c of the AEA. specific guidance to law enforcement or a fingerprint-based criminal history The NRC believes that the proposed other agencies that perform records check on any individual having rulemaking would provide the fingerprinting that is ‘‘beyond our unescorted access to their facilities. The minimum fingerprint-based FBI control.’’ This commenter suggests that ANPR was intended to inform external criminal history records checks the codification should state that ‘‘the stakeholders of the options that the NRC requirements mandated by Section 149 licensee shall have a program, process is considering for implementing the of the AEA for unescorted access at RTR or procedure that provides guidance fingerprinting requirements (as a facilities. ***’’ rulemaking) for RTR licensees. The Comment: One commenter pointed NRC Response: As a general principal, ANPR provided interested stakeholders out that in addition to NRC Order EA– the NRC prefers to construct an opportunity to comment on the 07–074, the NRC issued NRC Order 06– performance-based regulation (rather options under consideration by the 023, which addresses fingerprint-based than explicit, prescriptive regulation) NRC. The NRC developed this proposed criminal history records checks for where possible. Where practical and rulemaking based on the feedback access to SGI at RTRs, and that the NRC necessary, procedural implementation received on the ANPR (discussed in should consider including access to SGI of proposed requirements is addressed Section III of this document). in this rulemaking. in supporting guidance. In this

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circumstance, the ‘‘procedures’’ that are ‘‘area’’ criterion (unescorted access to stated that some facilities have students referred to are in § 73.57 and generally vital areas) and a ‘‘material’’ criterion go through LiveScan FBI checks, and address the requirements in that section (unescorted access to SNM). The NRC that it would be less burdensome if for handling and processing of recognizes that RTR licensees may need fingerprints could be transmitted fingerprints. Section 73.57 contains to be flexible in how they implement electronically. specific fingerprinting requirements that these proposed requirements, and this NRC Response: The NRC understands ensure fingerprint submissions are may, in some case, require RTR these concerns. The proposed handled in a manner consistent with licensees to take simpler, more provisions would provide some RTR other licensees and in accordance with bounding approaches to implementation licensees with the flexibility for using AEA requirements to provide the of the requirements (either restricting reciprocity by incorporating RTR fingerprints to FBI. As such, the NRC is unescorted access, providing escorts, or licensees into the provisions of proposing to add the RTR licensee fingerprinting more personnel) for more § 73.57(b)(5). The proposed revision to fingerprint provisions to § 73.57, complex situations. § 73.57(b)(5) would permit RTR thereby ensuring that RTR licensee Comment: One commenter stated that licensees some discretion in fingerprints are handled properly. With there must be great care in defining determining whether to fingerprint an regard to the implementation of the SNM as used in the proposed rule. If individual that is employed by, and has fingerprint requirements in RTR small amounts of SNM under the reactor been granted access to, a nuclear power licensee procedures and security plans, license or a source are relocated to a facility or a nonpower reactor facility or the NRC recognizes that flexibility laboratory for an experiment, and do not access to SGI by another licensee. The should be provided. Each RTR present a hazard to the health or safety NRC recognizes that individual licensee’s security plan or procedures as of the public, then the SNM should not circumstances would determine applicable would include a description cause a redefinition of a new ‘‘area of whether this flexibility can be used. The of how the RTR licensee intends to significance’’ and must remain exempt NRC will accept electronic fingerprint comply with the requirements from the requirements of any proposed submissions via LiveScan, however pertaining to fingerprinting. If, as the rule for control or direct supervision. such electronic submission must come comment implies, a third party (i.e., law NRC Response: The NRC has from the RTR licensee and not from a enforcement or other agency) might be developed the proposed rule provisions third party. employed to obtain the fingerprints of to be consistent with the requirements Comment: To reduce the burden on individuals seeking unescorted access to in the previously issued NRC orders and some of the small facilities, a workshop nonpower reactor facilities, then the with the standard definition of SNM. participant questioned whether it is process used to obtain those fingerprints Additionally, for the purposes of appropriate to have an exemption in the from third parties would be described in determining which individuals must be regulation to waive the fee for the licensee’s security plan or fingerprinted, an individual must fingerprint checks. The exemption procedures, as applicable, documenting (beyond simply seeking unescorted would be based on the same reasoning that the RTR licensee complies with the access) possess the capability and as to why universities don’t pay the requirements of § 73.57. knowledge to make unauthorized use of annual licensing fees. Comment: One commenter stated that the SNM in the nonpower reactor or to NRC Response: The NRC understands ‘‘identifying areas of significance’’ remove the SNM from the nonpower the concern. However, the requirements should not be adopted. The commenter reactor facility without authorization or of Section 149 of the AEA explicitly indicated that the reason access to detection. This constraint in the require that the costs of an identification certain SNM was identified early on as proposed requirement may limit the or records check be paid by the the implementing criterion, and requirement for application of individual or entity required to conduct included in the unescorted access fingerprint-based criminal history the fingerprinting. Therefore, the NRC orders was that it was much easier and records checks. In some cases, more does not have the authority to waive the appropriate to identify who can get to than simple physical access to SNM or fee. the SNM. Because of the unique nature specified areas is necessary to require of these facilities, where in some cases licensees to obtain fingerprint-based B. Comments Responding to NRC Posed the facility is buried inside an existing criminal history records checks under Questions academic building, the commenter the proposed provisions. Question 1: Which of the definitions indicated that it is very difficult to Comment: A workshop participant of areas of significance should be identify unescorted access by area. The questioned if ‘‘monitoring’’ necessarily adopted by the NRC? commenter stated that this is meant ‘‘visual options.’’ (1) Controlled access areas (CAAs) as exclusively true only for working hours. NRC Response: The NRC notes that defined in 10 CFR 73.2; After normal hours, the commenter ‘‘monitoring’’ is an element of physical (2) Areas of the facility determined in believes it is appropriate to identify security, and in the broader security each licensee’s security assessment; those areas that fall under the security sense monitoring can typically involve (3) Prescriptive locations such as the system. A facility should fingerprint ‘‘visual options.’’ More importantly the reactor (regardless of type), spent fuel everyone who has the ability to scope of this rulemaking is fingerprint- storage areas, fresh fuel storage areas, deactivate the security system. based criminal history records checks etc., or; NRC Response: The NRC understands for individuals seeking unescorted (4) Others? the concern, and recognizes that there access at nonpower reactor facilities. Comment: Three written comments may be challenges associated with these Therefore, questions pertaining to addressed this question. One requirements. The NRC also recognizes monitoring (from a general security commenter stated that identifying ‘‘areas that RTR licensees may have unique standpoint) do not directly pertain to of significance’’ should not be adopted challenges due to the location of these the proposed rulemaking. because the unique nature of RTR RTR facilities within academic Comment: Several workshop facilities makes it difficult to grant surroundings. The provisions in this participants questioned the viability of unescorted access by area. Another proposed rule are constructed to the reciprocity of fingerprint commenter stated that only option (2) provide flexibility, providing both an information between facilities. They would be reasonable because ‘‘areas of

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significance’’ are specific to the facility consistent with the unescorted access require his university to hire an and may ‘‘flex’’ as the facility is changed orders. employee to only process fingerprinting or materials are relocated for research Question 2: What would be the and background check information. purposes. Two commenters noted that approximate number of additional While one commenter estimated that identifying ‘‘areas of significance’’ based personnel that must be fingerprinted for implementing increased fingerprinting on security reviews (option (2)) would unescorted access based on the ‘‘areas of or escorts would result in a productivity not present a major imposition, but significance’’ as defined in Question 1, loss of approximately 0.25 persons or recognized that it would be problematic and are there categories of persons that $25,000, two commenters stated that and would require some flexibility for should be exempted? any change to the language in the some research reactors with less well Comment: One university commenter security orders would place an undue defined areas of demarcation. The stated that no additional individuals burden on licensees to make revisions to would require fingerprinting if the ‘‘area current criteria focusing on individuals their security plans. One university of significance’’ is defined as the vital who have access to SNM or who could representative estimated that the area defined in its Physical Security control SNM, appear to be a better additional time required to administer Plan. The commenter also stated that if this requirement would cost generic approach. Finally, a participant the area of significance is expanded at NRC’s public workshop stated that approximately $10,000 because that beyond the vital area, an additional 200 institution had already expanded the the original focus of the NRC orders had students and faculty would require definition of individuals requiring been on the individual rather than a fingerprint-based criminal history fingerprinting beyond the requirement defined area and sought the rationale for records checks, with an additional 25 to in the security orders. departing from that philosophy. 50 individuals each academic term. Two NRC Response: The NRC appreciates NRC Response: The NRC appreciates university representatives indicated that the information provided and will give the stakeholder feedback and agrees they expected no increase in the number it consideration when estimating the with the need (implied by stakeholder of persons to be fingerprinted; one costs associated with implementing the comments) for requirements that are stated that an unspecified number of fingerprinting requirements of Section sufficiently flexible to address the range additional escorts would be required. 149 of the AEA. The NRC is required to of situations that can exist at RTR With respect to categories of persons to implement the provisions of the AEA so facilities. Accordingly, the proposed be exempted, one commenter agreed this burden cannot be eliminated in its provisions in this document use two that exemptions should be granted for entirety, but if more efficient and less- criteria for unescorted access; the first unusual instances such as known burdensome approaches are identified, pertains to an ‘‘area’’ and the second foreign nationals or gifted students. the agency will attempt to construct pertains to the ‘‘material.’’ With regard to NRC Response: The NRC agrees with requirements that impose the least the ‘‘area’’ criterion, the proposed rule this commenter and the observation of burden while complying with Section would use the term ‘‘vital area.’’ Vital other commenters making similar 149 of the AEA. area is defined in § 73.2 as ‘‘any area remarks that the size of the area defined Question 4: Is the proposed definition which contains vital equipment,’’ and by the rule directly impacts the number of ‘‘individuals with unescorted access’’ of individuals requiring fingerprint- vital equipment is in turn defined in reasonable and sufficient? If not, why? based criminal history records checks § 73.2 as ‘‘any equipment, system, For example, should persons granted for unescorted access. The proposed ‘‘ device, or material, the failure, unescorted access to areas of rule would use ‘‘vital area,’’ which falls ’’ destruction, or release of which could significance be permitted access to the within the AEA definition of ‘‘utilization facility when no supervision or directly or indirectly endanger the facility’’ as discussed above in response oversight is present (e.g., evenings or public health and safety by exposure to to the Question 1 comment. The NRC weekends)? Should the NRC require radiation. Equipment or systems which expects that these proposed revisions access controls such as maintaining would be required to protect public would result in a similar group of records of the time and duration of health and safety following such failure, people requiring fingerprinting when persons accessing an ‘‘area of destruction, or releases are also compared to the NRC orders previously significance’’ without escorts? considered to be vital.’’ These issued to RTR licensees. The NRC Comment: One commenter stated that definitions apply to all the provisions believes that the proposed rule would unescorted access should permit within 10 CFR Part 73, and accordingly properly implement Section 149 of the individuals access to areas and apply to RTR licensees whose security AEA, and reflect the minimum equipment without supervision. requirements are governed by 10 CFR requirements necessary for RTR Another commenter stated that the Part 73. The equipment, systems, licensees. ANPR’s definition of ‘‘unescorted devices, and material that fall within the Question 3: What is the estimated cost access’’ as ‘‘any individual who has the § 73.2 vital equipment definition meet or impact of performing security plan or ability to access licensee-designated the utilization facility definition in procedure revisions, and of providing ‘areas of significance’ without Section 11.cc of the AEA. Hence the necessary administrative controls continuous direct supervision or fingerprinting individuals who wish to and training to implement fingerprint monitoring by an authorized have unescorted access to vital areas requirements for individuals permitted individual,’’ is not workable. This (which contain vital equipment) is unescorted access to ‘‘areas of commenter states that inherent in the ensuring that individuals permitted significance’’ such as those described in current definition is the concept of an access to the ‘‘utilization facility’’ as Question 1? individual with capability and defined in the AEA, is properly Comment: One commenter stated that knowledge to exercise control over or implemented in the NRC’s regulations. the cost of fingerprinting individuals remove SNM without detection and/or Additionally, the proposed rule would outside the vital area would be a response by the protection system. incorporate a ‘‘material’’ criterion (i.e., significant burden. In addition to the According to this commenter special nuclear material) which the NRC $37 for the cost of the actual fingerprint maintenance employees are given recognizes is a more useful criterion for processing, the time and effort necessary training and access to areas of many RTR situations, and which is to obtain the fingerprinting would significance during normal working

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hours, but do not have the knowledge or submitted fingerprints for an FBI NRC Response: The NRC agrees with capability to exercise control over the criminal history records check. These the commenters. The NRC has SNM without detection. This provisions are both consistent with the developed the proposed rule to contain commenter’s facility limits the previous orders on unescorted access generically-applicable requirements that capability and knowledge to control or and provide an appropriate level of implement Section 149 of the AEA, are move the strategic nuclear material to a flexibility. consistent with previous requirements very small group of individuals who Question 5: What has worked well, in NRC issued orders, and reflect the have authority to access ‘‘areas of what has not, and why? minimum requirements necessary for significance’’ during non-business Comment: Some commenters stated RTR licensees consistent with Section hours, and even these individuals that an early concern had been the 104c of the AEA. The proposed cannot access the system without the additional amount of time required for provisions in this document use two knowledge of the security forces. the fingerprinting, but the actual criteria for unescorted access; the first Another commenter’s facility defines processing time has been short and that pertains to an ‘‘area’’ and the second persons authorized ‘‘unescorted the orders appear to be working pertains to the ‘‘material.’’ With regard to containment access’’ and those effectively. One commenter stated that the ‘‘area’’ criterion, the proposed rule authorized ‘‘unescorted laboratory repeated and excessive fingerprinting would use the term ‘‘vital area’’ (as access.’’ The second definition would has been burdensome and expressed defined in Part 73), which the NRC need to be changed if unescorted access frustration because of a lack of a clear concludes (as discussed above in is to refer to persons having access to method to share clearance information previous responses) falls within the ‘‘areas of significance.’’ between facilities and government AEA definition of ‘‘utilization facility.’’ With respect to the question regarding agencies. This commenter did not Additionally, the proposed rule would permitting access to the facility when explain why fingerprinting needed to be incorporate a ‘‘material’’ criterion (i.e., there is no supervision or oversight, one repeated in some circumstances. special nuclear material), which the commenter stated that if the new Another commenter suggested that the NRC recognizes is a more useful definition of unescorted access is to be NRC permit the licensee to work criterion for many RTR situations. The used (i.e., access to areas of significance) directly with the FBI without having to proposed rule would incorporate RTR his university may define a new class of process the fingerprints through the licensees into § 73.57 and thereby afford individuals with ‘‘limited unescorted NRC. RTR licensees the flexibility provided to NRC Response: The NRC agrees with access’’ to encompass workers who are other licensees such as the use of the commenter regarding the lack of a allowed in to do limited duties, but reciprocity. would not allow this class of clear method to share clearance Question 7: Are there requirements in information between facilities and individuals access after hours because the orders that appear to contribute little government agencies. The proposed rule those areas would be such that informed to the security of the facility? Could the would incorporate RTR licensees into individuals could exercise control over same resources be used more effectively § 73.57(b)(5), which provides RTR procedures or damage equipment and/or in other ways? materials. licensees the flexibility of using Comment: None of the comments With respect to the proposal to reciprocity. The NRC does not have the received addressed this question. require records of times and areas that authority to allow RTR licensees to NRC Response: None persons have had access to ‘‘areas of submit fingerprints directly to the FBI Question 8: Are there other significance,’’ one commenter opposed instead of submitting them through the enhancements that could be made? this requirement. These records may be NRC. Section 149 of the AEA states that, Comment: None of the comments part of the security layer at some ‘‘all fingerprints obtained by an identified other enhancements that facilities, however they do not deter an individual or entity as required [in this could be made. insider with access and intent to remove section] be submitted to the Attorney NRC Response: None. or damage equipment. General of the United States through the Question 9: Has the implementation NRC Response: The NRC understands Commission for identification and a of the orders identified any new issues the concerns expressed by the criminal history records check.’’ The FBI that should be addressed through commenters. The proposed rule has strictly interpreted this provision rulemaking? language does not include the term and will not accept fingerprints except Comment: None of the comments ‘‘areas of significance.’’ To ensure through the NRC. received identified addressed this compliance with Section 149 of the Question 6: What requirements were question. AEA (to fingerprint any individual found to be the most burdensome? Are NRC Response: None. permitted access to a utilization there less burdensome alternatives that Question 10: Regarding alternatives to facility), the proposed rule does include would accomplish the same level of fingerprinting foreign nationals and/or a criterion to require fingerprinting for protection? minors in connection with a individuals who wish to have access to Comment: Several commenters stated trustworthiness and reliability a ‘‘vital area.’’ As discussed in a previous that the fingerprinting requirement has determination. response, the NRC concludes that vital not been particularly burdensome (1) Do foreign nationals and/or minors equipment as defined in § 73.2 falls because the number of individuals require unescorted access to ‘‘areas of within the AEA definition of utilization affected is manageable. The continual significance?’’ facility and so it is appropriate to use of paper and ink required to (2) Are there alternative methods to fingerprint individuals who wish to maintain paper copies of fingerprints obtain information upon which a have access to vital areas (containing was cited by three commenters as being licensee could base a trustworthiness vital equipment). Additionally, the burdensome. The industry-wide and and reliability determination for these proposed rule would incorporate Federal use of ‘‘LiveScan’’ fingerprinting individuals? language denying unescorted access to was cited as being less burdensome and Comment: One commenter stated that individuals, who possess the capability having the benefit of enhancing the criminal history records checks for and knowledge to make unauthorized industry’s and NRC’s ability to share minors should be considered valid even use of, or remove, SNM until they have information. though the opportunity for criminal

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behavior has been limited. However, Commission require to be fingerprinted under the Act to promote common defense foreign nationals should be vetted any individual who is permitted and security and to protect the health and through other Federal agencies because unescorted access to a utilization safety of the public and will permit the fingerprint checks would not be as facility. conduct of widespread and diverse research effective for these individuals. One As previously noted, Section 149 of and development. commenter stated that neither foreign the AEA grants the NRC the authority to The proposed revisions discussed in nationals nor minors would be impose FBI fingerprint-based this document are constructed in permitted access without escorts. identification and criminal history accordance with the requirements of Another commenter stated that any records checks for individuals seeking Section 149 of the AEA and within the proposed rule should provide a unescorted access at a broader range of constraints of 104c of the AEA. The mechanism for exempting individuals NRC licensees and regulated facilities. NRC recognizes that there may be future based on ‘‘unusual instances,’’ such as Before the EPAct amended Section 149, nonpower utilization facilities (none of exempting foreign national researchers the NRC required fingerprinting for which are currently licensed) that could or students, or gifted minors. Such an unescorted access to facilities licensed be licensed under Section 103 of the exemption should include a temporary under Sections 103 and 104b of the AEA (e.g., medical isotope production waiver to allow work while the process AEA. Because the amendment, which facilities are one possible facility). The is in progress based on an evaluation by eliminated the references to Section 103 NRC concludes that the proposed management. Another commenter stated and 104b, utilization facilities licensed provisions would establish adequate that foreign nationals require unescorted under Section 104c (as discussed in minimum fingerprinting requirements access to ‘‘areas of significance’’ but more detail below) of the AEA, which for unescorted access at these Class 103 minors do not, and that there are were not previously subject to these nonpower reactor facilities. If the NRC alternative ways to obtain information requirements, are now subject to these determines that these fingerprinting upon which to base a trustworthiness fingerprint requirements, and it is this requirements need to be supplemented and reliability determination but the specific expansion that is the subject of in the future, the NRC intends to validity of information from some this proposed rule (i.e., extension of supplement these minimum sources could be problematic. Another these fingerprint-based FBI criminal requirements as necessary during the individual commented that both foreign history records check requirements to licensing process using license nationals and minors require unescorted nonpower reactors including RTR conditions. access to ‘‘areas of significance.’’ licensees). V. Section-by-Section Analysis NRC Response: The NRC agrees with Section 149 now requires the commenters that fingerprints may fingerprinting for individuals seeking A. Section 73.57(a) General not be as effective in determining the unescorted access to a ‘‘utilization Paragraphs (a)(1) and (a)(2) would be trustworthiness and reliability of a facility.’’ Utilization facility is a term foreign national or of a minor, and simplified because the first portion of that is defined in Section 11.cc. of the the current rule language, which agrees that there may be alternative AEA as: ways to obtain information upon which includes current power reactors to base a trustworthiness and/or (1) any equipment or device, except an licensed under Part 50 and applicants atomic weapon, determined by rule of the reliability determination. The scope of for power reactor licenses, is Commission to be capable of making use of encompassed by the second portion of this proposed rulemaking is fingerprint- special nuclear material in such quantity as based FBI criminal history records the rule provision that requires to be of significance to the common defense licensees that engage, or intend to checks. However, the NRC is and security, or in such manner as to affect considering whether other background the health and safety of the public, or engage in any regulated activity to be investigation elements should also be peculiarly adapted for making use of atomic subject to the provisions of § 73.57. required for the purpose of a energy in such quantity as to be of Paragraph (a)(3) would be revised to trustworthiness and reliability significance to the common defense and add nonpower reactors (which includes determination. These requirements security, or in such manner as to affect the RTR licensees) into the scope of health and safety of the public; or (2) any licensees subject to § 73.57 fingerprint would be addressed in a follow-on important component part especially rulemaking should the Commission provisions. Nonpower reactor licensees designed for such equipment or device as would be added to § 73.57 to make use decide that the requirements are determined by the Commission. necessary. of the current fingerprint requirement Question 11: Is there any additional The AEA definition provides provisions that are being successfully information that the NRC should discretion to the Commission with used for other licensees subject to FBI consider in preparing the proposed regard to how this term might be fingerprint-based criminal history rule? implemented. In this regard the records checks. This would ensure that Comment: None of the comments Commission defined ‘‘utilization RTR licensee fingerprints are handled in received specifically addressed this facility’’ in 10 CFR 50.2 as any nuclear a manner that is both consistent with question. reactor other than one designed or used the process used for other licensees, and NRC Response: None. primarily for the formation of that ensures NRC meets it obligations plutonium or U–233. under the AEA for the handling and IV. Discussion In developing these proposed processing of fingerprints with the FBI. The proposed amendments would provisions, the NRC recognized that establish, for RTR licensees, generically when constructing requirements for B. Section 73.57(b) General Performance applicable fingerprinting requirements RTR licensees, it should be cognizant of Objective and Requirements similar to those previously imposed by the direction in Section 104c of the AEA Paragraph (b)(1) would be revised to the Commission’s orders pertaining to which states, in part that: include nonpower reactor licensees in the granting of unescorted access. The The Commission is directed to impose only the scope of the general performance proposed amendments would such minimum amount of regulation of the and objective requirements of § 73.57. implement the requirement in Section licensee as the Commission finds will permit The paragraph would point to new 149(a)(1)(B)(i) of the AEA that the the Commission to fulfill its obligations paragraph (g) where the specific

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unescorted access provisions for RTR C. Section 73.57(c) Prohibitions criminal history records check. This licensees would be described. Paragraph (c)(1) would be revised to determination would be made by an Paragraph (b)(2)(i) would be revised to include RTR licensees so that the NRC-approved reviewing official. The add nonpower reactor facilities, associated prohibitions are provided to reviewing official is required to have relieving RTR licensees from being individuals seeking unescorted access at unescorted access in accordance with required to fingerprint the designated nonpower reactors. the requirements of proposed § 73.57, or entities, consistent with the exceptions access to SGI. The licensee’s NRC- D. Section 73.57(d) Procedures for allowed for other licensees. Paragraph approved reviewing official would Processing of Fingerprint Checks (b)(2)(i) would be further revised to list evaluate the criminal history records ‘‘offsite response organizations Paragraph (d)(1) would be revised to check information to determine whether responding to a nonpower reactor include nonpower reactor facilities so the individual has a record of criminal facility’’ as one of the categories that that the established fingerprint activity that indicates that the would not require fingerprinting under provisions and forms that NRC currently individual should be denied unescorted the revised § 73.57 provisions. To uses for other licensees can be used by access. For each determination of implement this proposed requirement, RTR licensees. unescorted access, which would include RTR licensees would need to develop or Paragraph (d)(3)(ii) would be revised a review of criminal history revise predetermined actions that to apply the application fee provisions information, the NRC would expect RTR accommodate offsite response to all licensees (including RTR licensees to document the basis for the organizations during emergency licensees) subject to the section 73.57 decision. When negative information is conditions. These actions may involve fingerprinting requirements. discovered that was not provided by the the use of a liaison with the various E. Section 73.57(f) Protection individual, or which is different in any offsite response organizations. Information material respect from the information provided by the individual, this Paragraph (b)(2)(v) would be added to Paragraph (f)(2) would be revised to information would be considered, and enable individuals who have a valid add nonpower reactor licensees to actions would be taken based on these unescorted access authorization to a ensure that the personal information findings. The NRC would expect these nonpower reactor facility on the disclosure restrictions are applied to findings to be documented. A criminal effective date of the rule (granted in RTR licensees. history record containing a pattern of response to NRC Orders EA–07–074 and Paragraph (f)(5) would be revised to behaviors which could be expected to EA–07–098) to retain their access add nonpower reactors and thereby recur or continue, or recent behaviors authorization and not be required to provide records retention requirements which cast questions on whether an have a new fingerprint-based FBI for the fingerprints and criminal history individual should have unescorted criminal history records check under records checks generated through access in accordance with proposed proposed § 73.57(g) until such time that compliance with proposed § 73.57. § 73.57(g) would be carefully evaluated the individual’s existing authorization F. Section 73.57(g) Fingerprinting before unescorted access is granted to either expires, is terminated, or is Requirements for Nonpower Reactor the individual. otherwise required to be renewed. Licensees Section 73.57(g)(2)(i) would establish Paragraph (b)(4) would be revised to requirements for RTR licensees to obtain relieve RTR licensees from being This paragraph would be added to fingerprints for criminal history records required to fingerprint an individual if provide the new proposed fingerprint- checks for each individual who is the licensee is reinstating the based criminal history records checks seeking or permitted unescorted access unescorted access to a granted requirements required by Section 149 of to vital areas of the nonpower reactor individual when that individual returns the AEA. The scope of the proposed facility. Vital area is defined in § 73.2 as to the same reactor facility and the requirements is consistent with orders ‘‘any area which contains vital unescorted access has not been on unescorted access issued by the NRC equipment,’’ and vital equipment is in interrupted for a continuous period of on April 30, 2007 and August 1, 2007 turn defined in § 73.2 as ‘‘any more than 365 days. (EA–07–074 and EA–07–098 respectively). These orders require RTR equipment, system, device, or material, Paragraph (b)(5) would be revised to licensees to conduct FBI identification the failure, destruction, or release of provide nonpower reactor licensees the and fingerprint-based criminal history which could directly or indirectly discretion not to fingerprint individuals records checks based on fingerprints for endanger the public health and safety by for which a fingerprint-based criminal individuals granted unescorted access to exposure to radiation. Equipment or history records check has been SNM at these facilities (i.e., individuals systems which would be required to conducted, and for which the criminal having the knowledge and capability to protect public health and safety history records check can be transferred remove the SNM and use it in a way following such failure, destruction, or to the gaining licensee in accordance inimical to the public health and safety releases are also considered to be vital.’’ with § 73.57(f)(3). This revision allows or common defense and security). The These definitions apply to all the for reciprocity of fingerprint-based orders were issued as interim measures provisions within 10 CFR Part 73, and criminal history records checks and until the NRC could formulate accordingly apply to RTR licensees grants RTR licensees the same generically applicable requirements for whose security requirements are discretion that is currently granted to incorporation into the NRC’s governed by 10 CFR Part 73. The power reactor licensees. regulations. equipment, systems, devices, and Paragraph (b)(8) would be revised to Section 73.57(g)(1) would establish material that fall within the § 73.2 vital include RTR licensees to ensure that requirements that prohibit any person equipment definition meet the RTR licensees use the information from having unescorted access to a utilization facility definition in Section obtained as part of the criminal history nonpower reactor facility unless that 11.cc of the AEA. Hence fingerprinting records check solely for the purpose of person has been determined by the individuals who wish to have determining an individual’s suitability licensee to be trustworthy and reliable unescorted access to vital areas is for unescorted access. based on a fingerprint-based FBI ensuring that individuals permitted

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access to the ‘‘utilization facility,’’ as obtain fingerprint-based criminal VI. Request for Stakeholder Feedback defined in the AEA, is properly history records checks under on Additional Topics implemented in the NRC’s regulations. § 73.57(g)(2)(i) and (ii). To determine A. Implementation At higher powered RTRs, the vital which individuals should be area criterion may increase the scope of fingerprinted for unescorted access, RTR The NRC is proposing to make the personnel required to obtain licensees would need to evaluate their final § 73.57 fingerprinting provisions fingerprinting beyond the SNM criterion current security plans and procedures effective 120 days following the date the proposed in § 73.57(g)(2)(ii), in order to considering the definition of vital area final rule is published in the Federal accommodate individuals wishing to (in 10 CFR Part 73) and the Register. The NRC believes that this is have access to equipment that can requirements of § 73.57(g)(2)(i) and (ii), sufficient time to allow RTR licensees to develop or revise procedures and mitigate the impact of sabotage. The as well as any other security assessment programs associated with the granting of NRC notes that RTR licensees have information that might be available. For ‘‘ ’’ unescorted access at their facilities associated vital area with the storage example, an RTR licensee may decide of unirradiated highly enriched because the majority of procedure and for practical reasons to fingerprint uranium, as the historic principal plan changes should be in place as a individuals who wish to have security concern for most RTR facilities result of the previously issued unescorted access within the controlled has been theft and diversion of highly unescorted access order. Additionally, enriched uranium. However, as access area. the NRC believes this provides discussed above, the NRC would be In most cases, the provisions of sufficient time for additional using ‘‘vital area’’ in this proposed § 73.57(g) would use an RTR licensee’s individuals to be fingerprinted and provision as defined in § 73.2. A vital procedures similar to those used to approved by the reviewing official. area at a particular RTR will vary as a implement the previous unescorted 1. Is 120 days sufficient time to function of the facility design. Security access and SGI access fingerprinting implement the new provisions, assessments have been performed for a orders, and more importantly, it would including revising or developing number of licensees that can provide the follow the regulatory processing and fingerprinting programs or procedures? licensees insight into what constitutes a handling requirements already 2. Are there any other newly issued vital area. Given that implementation of incorporated into § 73.57. NRC requirements or impositions this proposed revision may involve a (aggregate impacts) that you expect When a licensee submits fingerprints significant amount of interpretation on could adversely impact your ability to to the NRC under the proposed the part of RTR licensees, the NRC implement the proposed provisions? provisions, the licensee would receive a expects that RTR licensees would have 3. If there are other potential aggregate clear documentation to support their criminal history review, provided in impacts, is there a time when you decisions. Federal records, since the individual’s expect that these impacts will become Paragraph (g)(2)(ii) would establish eighteenth birthday. The licensee’s insignificant in terms of your capability requirements for RTR licensees to obtain reviewing official would evaluate the to implement the new proposed fingerprints for a criminal history criminal history records information revisions? records check for each individual who pertaining to the individual as required B. Background Investigation is seeking or granted unescorted access by proposed § 73.57(g). The criminal Requirements to SNM in the nonpower reactor facility. history records check would be used in This provision is consistent with the the determination of whether the The NRC is interested in obtaining criteria used in the unescorted access individual has a record of criminal stakeholder feedback on additional order. The Commission notes that there activity that indicates that the background investigation requirements. may be significant overlap between the individual should not have unescorted These additional elements are not part two criteria (i.e., SNM and vital area) of access at the nonpower reactor facility. of the proposed provisions in § 73.57 proposed § 73.57(g)(2). As an example, Each determination of unescorted access that implement the mandated AEA SNM can be considered to be ‘‘vital would include a review of the Section 149 fingerprinting requirements equipment’’ under the material portion fingerprint-based criminal history for RTR licensees. However, during the of the § 73.2 vital equipment definition. information and should include the development of these proposed The NRC expects that the SNM criterion licensee’s documentation of the basis for fingerprinting provisions, the NRC would, in most situations, determine the decision. concluded that soliciting stakeholder whether an individual is required to be 1. When negative information is feedback on additional background investigation requirements would be fingerprinted in accordance with the discovered that was not provided by the worthwhile to gain stakeholders views proposed provisions. individual, or that is different in any For both proposed § 73.57(g)(2)(i) and on whether these requirements would material respect from the information (ii), for the purposes of determining provide greater confidence and validity provided by the individual, this which individuals must be to the unescorted access determinations. information should be considered, and fingerprinted, an individual must The NRC recognizes its obligation under actions taken based on these findings additionally (beyond simply seeking Section 104c of the AEA to put in place should be documented. unescorted access) possess the the minimum requirements for RTR capability and knowledge to make 2. A record containing a pattern of licensees and accordingly has not unauthorized use of the special nuclear behaviors that indicates that the incorporated proposed rule language in material in the nonpower reactor. This behaviors could be expected to recur or this document for these additional constraint in the proposed requirement continue, or recent behaviors that cast background investigation provisions. may limit the requirement for questions on whether an individual However, with the stakeholder input, application of fingerprint-based should have unescorted access in the NRC may elect to further revise the criminal history records checks. In some accordance with the proposed unescorted access requirements for RTR cases, more than simple physical access provisions, should be carefully licensees in a future rulemaking. to special nuclear material or specified evaluated prior to any authorization of 1. The newly revised Safeguards areas is necessary to require licensees to unescorted access. Information requirements in §§ 73.21,

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73.22, and 73.23 (issued in October • Verification of true identity. information to corroborate the 2008 and effective February 2009) are Licensees shall verify the true identity information provided by the individual supported by background checks, which of an individual who is applying for (e.g., seek references not supplied by the require the reviewing official to unescorted access authorization to individual). determine trustworthiness and ensure that the applicant is who they • If a previous employer, educational reliability. Specifically, § 73.22 (b)(2) claim to be. A licensee shall review institution, or any other entity with requires that a person to be granted official identification documents (e.g., which the individual claims to have access to SGI must be trustworthy and driver’s license, passport, government been engaged fails to provide reliable based on a background check or identification, State, province, or information or indicates an inability or other means approved by the country of birth issued certificate of unwillingness to provide information Commission. Background check is a birth) and compare the documents to within a time frame deemed appropriate term defined in § 73.2 to include FBI personal information data provided by by the licensee but at least [x] business fingerprint-based criminal history the individual to identify any days of the request, the licensee shall: records checks; employment history; discrepancy in the information. —Document the refusal, unwillingness, education; and personal references. Licensees shall document the type, or inability in the record of For RTR licensees, should the NRC expiration, and identification number of investigation; and require that background checks for the identification, or maintain a —Obtain a confirmation of employment, unescorted access and SGI access be photocopy of identifying documents on educational enrollment and consistent, and address the same file. Licensees shall certify and affirm in attendance, or other form of elements that are identified in the § 73.2 writing that the identification was engagement claimed by the individual definition beyond the FBI fingerprint- properly reviewed and maintain the from at least one alternate source that based criminal history records check? certification and all related documents has not been previously used. 2. While an FBI fingerprint-based for review upon inspection. criminal history records check will • Employment history evaluation. VII. Agreement State Compatibility identify criminal activity for individuals Licensees shall complete an Under the ‘‘Policy Statement on over 18 that have a criminal history in employment history evaluation. Adequacy and Compatibility of the United States, would this Licensees shall verify the individual’s Agreement States Programs,’’ approved information be sufficient for RTR employment with each previous by the Commission on June 20, 1997, licensees to make a meaningful employer for the most recent [x] years and published in the Federal Register trustworthiness and reliability before the date of application. (62 FR 46517; September 3, 1997), this determination for unescorted access? If • Verification of education. Licensees rule is classified as compatibility ‘‘NRC.’’ more is needed, what could be added to shall verify that the individual Compatibility is not required for increase the validity of these participated in the education process Category ‘‘NRC’’ regulations. The NRC determinations? during the claimed period. program elements in this category are 3. Assuming that a background check • Criminal history review. Reviewing those that relate directly to areas of (containing the additional requirements officials shall obtain from local criminal regulation reserved to the NRC by the identified in § 73.2) were to be justice resources the criminal history ‘‘EA or the provisions of this chapter. conducted, what time period should the records of an individual who is Although an Agreement State may not investigation cover (i.e., 5 years, 10 applying for unescorted access adopt program elements reserved to the years etc.)? authorization and evaluate the NRC, it may wish to inform its licensees 4. Are RTR licensees aware of any information to determine whether the of certain requirements by a mechanism conflicting Federal and State individual has a record of local criminal that is consistent with the particular requirements concerning the privacy of activity that may adversely impact his State’s administrative procedure laws. students and staff? If so, what is the or her trustworthiness and reliability. Category ‘‘NRC’’ regulations do not nature of the conflict? The scope of the applicant’s local confer regulatory authority on the State. 5. Do RTR licensees know the number criminal history review must cover all of people that seek unescorted access residences of record for the [x] year VIII. Plain Language and already have been granted access to period preceding the date of the The Presidential memorandum ‘‘Plain SGI (i.e., these individuals would application for unescorted access Language in Government Writing’’ already have been fingerprinted and authorization. published on June 10, 1998 (63 FR subjected to background checks to • Character and reputation 31883), directed that the Government’s receive SGI access)? determination. Licensees shall complete documents be in clear and accessible To provide stakeholders with a better reference checks to determine the language. The NRC requests comments idea of the type of rule language that character and reputation of an on the proposed rule specifically with might be considered for a future individual who has applied for respect to the clarity and effectiveness rulemaking, and thereby support more unescorted access authorization. of the language used. Comments should informed feedback on the above Reference checks may not be conducted be sent to the NRC as explained in the questions, the NRC is providing the with any person who is known to be a ADDRESSES heading of this document. following example of potential close member of the individual’s family, requirements that could be considered. including but not limited to, the IX. Voluntary Consensus Standards Before granting an individual individual’s spouse, parents, siblings, or The National Technology Transfer unescorted access, licensees shall children, or any individual who resides and Advancement Act of 1995, Public complete a background investigation of in the individual’s permanent Law 104–113, requires that Federal the individual seeking unescorted household. Reference checks under this agencies use technical standards that are access authorization. The scope of the subpart must be limited to whether the developed or adopted by voluntary investigation must encompass at least individual has been and continues to be consensus standards bodies unless the past [x] years. The background trustworthy and reliable. using such a standard is inconsistent investigation must include at a • The licensee shall also, to the extent with applicable law or is otherwise minimum: possible, obtain independent impractical. The NRC is not aware of

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any voluntary consensus standard that An estimate of the total number of Regulatory Commission, Washington, could be used instead of the proposed hours needed annually to complete the DC 20555–0001, or by e-mail to Government-unique standards. The NRC requirement or request: 690 hours (450 [email protected] will consider using a voluntary reporting plus 240 recordkeeping). and to the Desk Officer, Ms. Christine consensus standard if an appropriate However, NRC has previously Kymn, Office of Information and standard is identified. accounted for the hours for these Regulatory Affairs, NEOB–10202 (3150– requirements, issued under Orders, 0011), Office of Management and X. Finding of No Significant using the Agency’s clearance for 10 CFR Budget, Washington, DC 20503. Environmental Impact: Availability part 73. Therefore, the hours do not Comments on the proposed information The Commission has determined represent additional burden to collections may also be submitted via under the National Environmental licensees. the Federal eRulemaking Portal http:// Policy Act of 1969, as amended, and the Abstract: The NRC is proposing to www.regulations.gov, Docket # NRC– Commission’s regulations in Subpart A, amend its regulations to require 2008–0619. Comments received after ‘‘National Environmental Policy Act; fingerprint-based criminal history this date will be considered if it is Regulations Implementing Section records checks for RTR licensees to practical to do so, but assurance of 102(2),’’ of 10 CFR Part 51, grant individuals unescorted access to consideration cannot be given to ‘‘Environmental Protection Regulations their facilities. This action is necessary comments received after this date. You for Domestic Licensing and Related to comply with the requirements of may also e-mail comments to Regulatory Functions,’’ that this rule, if Section 652 of the EPAct of 2005, which [email protected] or adopted, would not be a major Federal amended Section 149 of the AEA, to comment by telephone at (202) 395– action significantly affecting the quality require fingerprinting and an FBI 4638. of the human environment and, identification and criminal history therefore, an environmental impact records check of any person who is Public Protection Notification statement is not required. permitted unescorted access to a The NRC may not conduct or sponsor, The determination of this utilization facility. As a result of this and a person is not required to respond environmental assessment is that there action, RTR licensees would be subject to, a request for information or an will be no significant offsite impact to to the fingerprinting and criminal information collection requirement the public from this action. However, history records check requirements unless the requesting document the general public should note that the specified in the NRC’s regulations displays a currently valid OMB control NRC is seeking public participation on instead of NRC issued Orders EA–07– number. this environmental assessment. 074 and EA–07–098 pertaining to this XII. Regulatory Analysis: Availability Comments on this environmental matter. assessment may be submitted to the The NRC is seeking public comment The Commission has prepared a draft NRC as indicated under the ADDRESSES on the potential impact of the regulatory analysis on this proposed heading of this document. information collections contained in regulation. The analysis examines the The NRC has sent a copy of this this proposed rule and on the following costs and benefits of the alternatives environmental assessment and this issues: considered by the Commission. The proposed rule to every State Liaison 1. Is the proposed information Commission requests public comments Officer and requested their comments collection necessary for the proper on the draft regulatory analysis. on the environmental assessment. performance of the functions of the Availability of the regulatory analysis is NRC, including whether the information indicated in Section I of this document. XI. Paperwork Reduction Act will have practical utility? Comments on the draft analysis may be Statement 2. Estimate of burden? submitted to the NRC as indicated This proposed rule contains new or 3. Is there a way to enhance the under the ADDRESSES heading. amended information collection quality, utility, and clarity of the XIII. Regulatory Flexibility requirements that are subject to the information to be collected? Certification Paperwork Reduction Act of 1995 (44 4. How can the burden of the U.S.C. 3501, et seq). This rule has been information collection be minimized, Under the Regulatory Flexibility Act submitted to the Office of Management including the use of automated (5 U.S.C. 605(b)), the Commission and Budget for review and approval of collection techniques? certifies that this rule would not, if the information collection requirements. A copy of the OMB clearance package promulgated, have a significant Type of submission, new or revision: may be viewed free of charge at the NRC economic impact on a substantial Revision. Public Document Room, One White number of small entities. This proposed The title of the information collection: Flint North, 11555 Rockville Pike, Room rule affects only the licensing and 10 CFR Part 73, ‘‘Fingerprint Based O–1F21, Rockville, MD 20852. operation of non-power reactors. Only Criminal History Records Checks for Availability of the OMB clearance one of the companies and universities Unescorted Access to Research or Test package is indicated in Section I of this that own and operate these facilities Reactors (RTR).’’ document. The OMB clearance package falls within the scope of the definition The form number if applicable: Form and rule are available at the NRC of ‘‘small entities’’ set forth in the FD–258. worldwide Web site: http:// Regulatory Flexibility Act or the size How often the collection is required: www.nrc.gov/public-involve/doc- standards established by the NRC (10 As needed, due to staff turnover. comment/omb/index.html for 60 days CFR 2.810), and the economic impact on Who will be required or asked to after the signature date of this notice. this entity is judged to be small. report: RTR licensees. Send comments on any aspect of An estimate of the number of annual these proposed information collections, XIV. Backfit Analysis responses: 132 (100 responses plus 32 including suggestions for reducing the The NRC’s backfit provisions are recordkeepers). burden and on the above issues, by found in the regulations at §§ 50.109, The estimated number of annual September 20, 2010 to the Information 70.76, 72.62, 76.76, and in 10 CFR Part respondents: 32. Services Branch (T–5 F52), U.S. Nuclear 52. Under § 50.2, nonpower reactors are

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research or test reactors licensed in § 73.57 Requirements for criminal history emergency in accordance with the accordance with Sections 103 or 104c of records checks of individuals granted provisions of § 73.55(a); offsite the AEA and §§ 50.21(c) or 50.22 for unescorted access to a nuclear power emergency response personnel who are facility, a non-power reactor, or access to responding to an emergency at a research and development. The NRC has Safeguards Information determined that the backfit provision in nonpower reactor facility; a (a) General. (1) Each licensee who is § 50.109 does not apply to test, research, representative of the International authorized to engage in an activity Atomic Energy Agency (IAEA) engaged or training reactors. The NRC has subject to regulation by the Commission further determined that the amendments in activities associated with the U.S./ shall comply with the requirements of IAEA Safeguards Agreement at to § 73.57 contained in this proposed this section. rule do not involve any provisions that designated facilities who has been (2) Each applicant for a license to certified by the NRC; law enforcement would impose backfits on nuclear engage in an activity subject to power plant licensees or on licensees for personnel acting in an official capacity; regulation by the Commission, as well State or local government employees special nuclear material, independent as each entity who has provided written who have had equivalent reviews of FBI spent fuel storage installations or notice to the Commission of intent to criminal history data; and individuals gaseous diffusion plants as defined in file an application for licensing, employed at a facility who possess ‘‘Q’’ 10 CFR chapter I. Therefore, a backfit certification, permitting, or approval of or ‘‘L’’ clearances or possess another analysis was not prepared for this a product subject to regulation by the active government granted security proposed rule. Commission shall submit fingerprints clearance (i.e., Top Secret, Secret, or for those individuals who will have Confidential); List of Subjects in 10 CFR Part 73 access to Safeguards Information. (3) Before receiving its operating * * * * * Criminal penalties, Export, Hazardous license under 10 CFR part 50 or before (v) Individuals who have a valid materials transportation, Import, the Commission makes its finding under unescorted access authorization to a Nuclear materials, Nuclear power plants § 52.103(g), each applicant for a license nonpower reactor facility on [effective and reactors, Reporting and to operate a nuclear power reactor date of the rule] are not required to recordkeeping requirements, Security (including an applicant for a combined undergo a new fingerprint-based measures. license) or a nonpower reactor may criminal history records check pursuant For the reasons set out in the submit fingerprints for those individuals to paragraph (g) of this section, until such time that the existing authorization preamble and under the authority of the who will require unescorted access to expires, is terminated, or is otherwise to Atomic Energy Act of 1954, as amended; the nuclear power facility or nonpower be renewed. the Energy Reorganization Act of 1974, reactor facility. (b) * * * as amended; and 5 U.S.C. 553, the NRC * * * * * (1) Except those listed in paragraph (4) Fingerprinting is not required if is proposing to adopt the following (b)(2) of this section, each licensee amendments to 10 CFR Part 73. the licensee is reinstating the subject to the provisions of this section unescorted access to the nuclear power PART 73—PHYSICAL PROTECTION OF shall fingerprint each individual who is facility, the nonpower reactor facility, or permitted unescorted access to the PLANTS AND MATERIALS access to Safeguards Information nuclear power facility, the nonpower granted an individual if: 1. The authority citation for Part 73 reactor facility in accordance with (i) The individual returns to the same paragraph (g) of this section, or access continues to read as follows: nuclear power utility or nonpower to Safeguards Information. The licensee reactor facility that granted access and Authority: Secs. 53, 161, 149, 68 Stat. 930, will then review and use the such access has not been interrupted for 948, as amended, sec. 147, 94 Stat. 780 (42 information received from the Federal a continuous period of more than 365 U.S.C. 2073, 2167, 2169, 2201); sec. 201, as Bureau of Investigation (FBI), and based days; and amended, 204, 88 Stat. 1242, as amended, on the provisions contained in this * * * * * 1245, sec. 1701, 106 Stat. 2951, 2952, 2953 section, determine either to continue to (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 grant or to deny further unescorted (5) Fingerprints need not be taken, in Stat. 2750 (44 U.S.C. 3504 note); Energy access to the nuclear power facility, the the discretion of the licensee, if an Policy Act of 2005, Pub. L. 109–58, 119 Stat. nonpower reactor facility, or access to individual who is an employee of a 594 (2005). Safeguards Information for that licensee, contractor, manufacturer, or Section 73.1 also issued under secs. 135, individual. Individuals who do not have supplier has been granted unescorted 141, Pub. L. 97–425, 96 Stat. 2232, 2241 (42 unescorted access or access to access to a nuclear power facility, a U.S.C, 10155, 10161). Section 73.37(f) also Safeguards Information shall be nonpower reactor facility, or to issued under sec. 301, Pub. L. 96–295, 94 fingerprinted by the licensee and the Safeguards Information by another Stat. 789 (42 U.S.C. 5841 note). Section 73.57 results of the criminal history records licensee, based in part on a criminal is issued under sec. 606, Pub. L. 99–399, 100 check shall be used before making a history records check under this section. Stat. 876 (42 U.S.C. 2169). determination for granting unescorted The criminal history records check file may be transferred to the gaining 2. In § 73.57, the heading and access to the nuclear power facility, nonpower reactor facility, or to licensee in accordance with the paragraphs (a), (b)(1), and (b)(2)(i) are provisions of paragraph (f)(3) of this revised; paragraph (b)(2)(v) is added; the Safeguards Information. (2) * * * section. introductory text of paragraph (b)(4), (i) For unescorted access to the * * * * * paragraphs (b)(4)(i), (b)(5), (b)(8), the nuclear power facility or the nonpower (8) A licensee shall use the introductory text of paragraph (c)(1), reactor facility (but must adhere to information obtained as part of a paragraphs (d)(1), (d)(3)(ii), (f)(2) and provisions contained in §§ 73.21 and criminal history records check solely for (f)(5) are revised; and paragraph (g) is 73.22): NRC employees and NRC the purpose of determining an added to read as follows: contractors on official agency business; individual’s suitability for unescorted individuals responding to a site access to the nuclear power facility, the

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nonpower reactor facility, or access to and maintained to persons other than DEPARTMENT OF TRANSPORTATION Safeguards Information. the subject individual, his/her (c) * * * representative, or to those who have a Federal Aviation Administration (1) A licensee may not base a final need to have access to the information determination to deny an individual in performing assigned duties in the 14 CFR Part 71 unescorted access to the nuclear power process of granting or denying [Docket No. FAA–2010–0616; Airspace facility, the nonpower reactor facility, or unescorted access to the nuclear power Docket No. 10–ANM–6] access to Safeguards Information solely facility, the nonpower reactor or access on the basis of information received to Safeguards Information. No Proposed Amendment of Class E from the FBI involving: individual authorized to have access to Airspace; Pendleton, OR * * * * * the information may re-disseminate the AGENCY: (d) * * * information to any other individual who Federal Aviation (1) For the purpose of complying with does not have a need to know. Administration (FAA), DOT. this section, licensees shall, using an * * * * * ACTION: Notice of proposed rulemaking (NPRM). appropriate method listed in § 73.4, (5) The licensee shall retain all submit to the NRC’s Division of fingerprint and criminal history records SUMMARY: This action proposes to Facilities and Security, Mail Stop T– received from the FBI, or a copy if the modify Class E airspace at Pendleton, 6E46, one completed, legible standard individual’s file has been transferred, on OR. Decommissioning of the Foris Non- fingerprint card (Form FD–258, an individual (including data indicating Directional Radio Beacon (NDB) at ORIMDNRCOOOZ) or, where no record) for one year after termination Eastern Oregon Regional Airport at practicable, other fingerprint records for or denial of unescorted access to the Pendleton has made this action each individual requiring unescorted nuclear power facility, the nonpower necessary for the safety and access to the nuclear power facility, the reactor, or access to Safeguards management of Instrument Flight Rules nonpower reactor facility, or access to Information. (IFR) operations at the airport. This Safeguards Information, to the Director action also would reflect the new name of the NRC’s Division of Facilities and * * * * * of the airport. Security, marked for the attention of the (g) Fingerprinting Requirements for Division’s Criminal History Check Unescorted Access for Nonpower DATES: Comments must be received on Section. Copies of these forms may be Reactor Licensees. (1) No person shall or before September 3, 2010. obtained by writing the Office of be permitted unescorted access to a ADDRESSES: Send comments on this Information Services, U.S. Nuclear nonpower reactor facility unless that proposal to the U.S. Department of Regulatory Commission, Washington, person has been determined by an NRC- Transportation, Docket Operations, M– DC 20555–0001, by calling 301- 415– approved reviewing official to be 30, West Building Ground Floor, Room 7232, or by e-mail to trustworthy and reliable based on the W12–140, 1200 New Jersey Avenue, SE., [email protected]. Guidance on results of an FBI fingerprint-based Washington, DC 20590; telephone (202) what alternative formats might be criminal history records check obtained 366–9826. You must identify FAA practicable is referenced in § 73.4. The in accordance with this paragraph. The Docket No. FAA–2010–0616; Airspace licensee shall establish procedures to reviewing official is required to have Docket No. 10–ANM–6, at the beginning ensure that the quality of the unescorted access in accordance with of your comments. You may also submit fingerprints taken results in minimizing this section or access to Safeguards comments through the Internet at http:// the rejection rate of fingerprint cards Information. www.regulations.gov. due to illegible or incomplete cards. (2) Each nonpower reactor licensee FOR FURTHER INFORMATION CONTACT: * * * * * subject to the requirements of this Eldon Taylor, Federal Aviation (3) * * * section shall obtain the fingerprints for Administration, Operations Support (ii) The application fee is the sum of a criminal history records check for Group, Western Service Center, 1601 the user fee charged by the FBI for each each individual who is seeking or Lind Avenue, SW., Renton, WA 98057; fingerprint card or other fingerprint permitted: telephone (425) 203–4537. record submitted by the NRC on behalf (i) Unescorted access to vital areas of SUPPLEMENTARY INFORMATION: of a licensee, and an administrative the nonpower reactor facility; or Comments Invited processing fee assessed by the NRC. The (ii) Unescorted access to special NRC processing fee covers nuclear material in the nonpower Interested parties are invited to administrative costs associated with reactor facility provided the individual participate in this proposed rulemaking NRC handling of licensee fingerprint who is seeking or permitted unescorted by submitting such written data, views, submissions. The Commission access possesses the capability and or arguments, as they may desire. publishes the amount of the fingerprint knowledge to make unauthorized use of Comments that provide the factual basis records check application fee on the the special nuclear material in the supporting the views and suggestions NRC public Web site. (To find the nonpower reactor facility or to remove presented are particularly helpful in current fee amount, go to the Electronic the special nuclear material from the developing reasoned regulatory Submittals page at http://www.nrc.gov/ nonpower reactor in an unauthorized decisions on the proposal. Comments site-help/e-submittals.html and select manner. are specifically invited on the overall the link for the Criminal History regulatory, aeronautical, economic, Program.) The Commission will directly Dated at Rockville, Maryland this 14th day environmental, and energy-related of July, 2010. notify licensees who are subject to this aspects of the proposal. regulation of any fee changes. For the Nuclear Regulatory Commission. Communications should identify both * * * * * Annette Vietti-Cook, docket numbers (FAA Docket No. FAA (f) * * * Secretary of the Commission. 2010–0616 and Airspace Docket No. 10– (2) The licensee may not disclose the [FR Doc. 2010–17635 Filed 7–19–10; 8:45 am] ANM–6) and be submitted in triplicate record or personal information collected BILLING CODE 7590–01–P

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to the Docket Management System (see Eastern Oregon Regional Airport at The Proposed Amendment ADDRESSES section for address and Pendleton, Pendleton, OR. The airspace Accordingly, pursuant to the phone number). You may also submit would be reconfigured due to the authority delegated to me, the Federal comments through the Internet at decommissioning of the Foris NDB, and Aviation Administration proposes to http://www.regulations.gov. cancellation of the NDB approach. This amend 14 CFR Part 71 as follows: Commenters wishing the FAA to action would enhance the safety and acknowledge receipt of their comments management of IFR operations at the PART 71—DESIGNATION OF CLASS A, on this action must submit with those airport. This also would reflect a change B, C, D AND E AIRSPACE AREAS; AIR comments a self-addressed stamped in the airport name, from Pendleton TRAFFIC SERVICE ROUTES; AND postcard on which the following Municipal Airport to Eastern Oregon REPORTING POINTS statement is made: ‘‘Comments to FAA Regional Airport at Pendleton. Docket No. FAA–2010–0616 and 1. The authority citation for 14 CFR Class E airspace designations are Airspace Docket No. 10–ANM–6’’. The Part 71 continues to read as follows: published in paragraph 6005, of FAA postcard will be date/time stamped and Order 7400.9T, signed August 27, 2009, Authority: 49 U.S.C. 106(g), 40103, 40113, returned to the commenter. 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– All communications received on or and effective September 15, 2009, which 1963 Comp., p. 389. before the specified closing date for is incorporated by reference in 14 CFR § 71.1 [Amended] comments will be considered before Part 71.1. The Class E airspace taking action on the proposed rule. The designation listed in this document will 2. The incorporation by reference in proposal contained in this action may be published subsequently in this 14 CFR Part 71.1 of the FAA Order be changed in light of comments Order. 7400.9T, Airspace Designations and received. All comments submitted will The FAA has determined this Reporting Points, signed August 27, be available for examination in the proposed regulation only involves an 2009, and effective September 15, 2009 public docket both before and after the established body of technical is amended as follows: closing date for comments. A report regulations for which frequent and Paragraph 6005 Class E airspace areas summarizing each substantive public routine amendments are necessary to extending upward from 700 feet or more contact with FAA personnel concerned keep them operationally current. above the surface of the earth. with this rulemaking will be filed in the Therefore, this proposed regulation: (1) * * * * * docket. Is not a ‘‘significant regulatory action’’ under Executive Order 12866; (2) is not ANM OR E5 Pendleton, OR [Modified] Availability of NPRMs a ‘‘significant rule’’ under DOT Eastern Oregon Regional Airport at Pendleton, OR An electronic copy of this document Regulatory Policies and Procedures (44 ° ′ ″ ° ′ ″ may be downloaded through the (Lat. 45 41 42 N., long. 118 50 29 W.) FR 11034; February 26, 1979); and (3) Pendleton VORTAC Internet at http://www.regulations.gov. does not warrant preparation of a (Lat. 45°41′54″ N., long. 118°56′19″ W.) Recently published rulemaking regulatory evaluation as the anticipated Hermiston, Hermiston Municipal Airport documents can also be accessed through impact is so minimal. Since this is a (Lat. 45°49′42″ N., long. 119°15′33″ W.) the FAA’s Web page at http:// routine matter that will only affect air That airspace extending upward from 700 www.faa.gov/airports_airtraffic/ traffic procedures and air navigation, it feet above the surface within a 10.5-mile air_traffic/publications/ is certified this proposed rule, when radius of lat. 45°41′30″ N., long. 118°47′24″ airspace_amendments/. promulgated, would not have a W., and within 4 miles each side of the ° You may review the public docket significant economic impact on a Pendleton VORTAC 254 radial extending containing the proposal, any comments substantial number of small entities from the 10.5-mile radius to 10.9 miles west of the VORTAC, and within 8.3 miles north received, and any final disposition in under the criteria of the Regulatory ° person in the Dockets Office (see the and 4.3 miles south of the Pendleton 090 Flexibility Act. bearing from the Eastern Oregon Regional ADDRESSES section for the address and The FAA’s authority to issue rules Airport at Pendleton extending from the 10.5- phone number) between 9 a.m. and 5 regarding aviation safety is found in mile radius to 20.7 miles east of the Eastern p.m., Monday through Friday, except Title 49 of the U.S. Code. Subtitle 1, Oregon Regional Airport at Pendleton, and Federal holidays. An informal docket within a 4.3-mile radius of the Hermiston Section 106, describes the authority for may also be examined during normal Municipal Airport, and within 2.2 miles each the FAA Administrator. Subtitle VII, business hours at the Northwest side of the Pendleton VORTAC 300° radial Aviation Programs, describes in more Mountain Regional Office of the Federal extending from the 4.3-mile radius to the detail the scope of the agency’s Aviation Administration, Air Traffic Pendleton VORTAC; that airspace extending authority. This rulemaking is upward from 1,200 feet above the surface Organization, Western Service Center, promulgated under the authority within 9.6 miles northeast and 6.1 miles Operations Support Group, 1601 Lind described in Subtitle VII, Part A, southwest of the Pendleton VORTAC 137° Avenue, SW., Renton, WA 98057. Subpart I, Section 40103. Under that radial extending from the 10.5-mile radius to Persons interested in being placed on 43.5 miles southeast of the VORTAC, and a mailing list for future NPRMs should section, the FAA is charged with prescribing regulations to assign the use within 8.7 miles south and 6.1 miles north contact the FAA’s Office of Rulemaking, of the Pendleton 254° radial extending from (202) 267–9677, for a copy of Advisory of the airspace necessary to ensure the the 10.5-mile radius to 28.8 miles west of the Circular No. 11–2A, Notice of Proposed safety of aircraft and the efficient use of VORTAC, and within 8.3 miles north and 4.3 ° Rulemaking Distribution System, which airspace. This regulation is within the miles south of the Pendleton 273 radial describes the application procedure. scope of that authority as it would extending from the 10.5-mile radius to 16.1 amend controlled airspace at Eastern miles west of the VORTAC, and within 5.3 The Proposal Oregon Regional Airport at Pendleton, miles southwest and 7.9 miles northeast of Pendleton, OR. the Pendleton 310° radial extending from the The FAA is proposing an amendment 10.5-mile radius to 26.1 miles northwest of to Title 14 Code of Federal Regulations List of Subjects in 14 CFR Part 71 the VORTAC, and within 4.3 miles northwest (14 CFR) Part 71 by modifying Class E of the 025° radial and 4.3 miles southeast of airspace extending upward from 700 Airspace, Incorporation by reference, the 049° radial extending from the 10.5-mile feet and 1,200 feet above the surface at Navigation (air). radius to the 30.5-mile radius of the

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Pendleton VORTAC, and that airspace within or arguments, as they may desire. Persons interested in being placed on the 27.9-mile radius of the Pendleton Comments that provide the factual basis a mailing list for future NPRMs should VORTAC extending clockwise from the supporting the views and suggestions contact the FAA’s Office of Rulemaking, southeast edge of V–536 to the northeast edge presented are particularly helpful in (202) 267–9677, for a copy of Advisory of V–298. developing reasoned regulatory Circular No. 11–2A, Notice of Proposed Issued in Seattle, Washington, on July 1, decisions on the proposal. Comments Rulemaking Distribution System, which 2010. are specifically invited on the overall describes the application procedure. John Warner, regulatory, aeronautical, economic, The Proposal Manager, Operations Support Group, Western environmental, and energy-related Service Center. aspects of the proposal. The FAA is proposing an amendment [FR Doc. 2010–17624 Filed 7–19–10; 8:45 am] Communications should identify both to Title 14 Code of Federal Regulations BILLING CODE 4910–13–P docket numbers (FAA Docket No. FAA (14 CFR) Part 71 by modifying Class E 2010–0619 and Airspace Docket No. 10– airspace designated as an extension to a AWP–11) and be submitted in triplicate Class D surface area, at San Clemente DEPARTMENT OF TRANSPORTATION to the Docket Management System (see Island NALF (Fredrick Sherman Field), ADDRESSES section for address and San Clemente CA. The airspace would Federal Aviation Administration phone number). You may also submit be reconfigured due to the comments through the Internet at http:// decommissioning of the San Clemente 14 CFR Part 71 www.regulations.gov. Island NDB, and cancellation of the [Docket No. FAA–2010–0619; Airspace Commenters wishing the FAA to NDB approach. This will also update Docket No. 10–AWP–11] acknowledge receipt of their comments the geographic coordinates of the on this action must submit with those airport. This action would enhance the Proposed Amendment of Class E comments a self-addressed stamped safety and management of IFR Airspace; San Clemente, CA postcard on which the following operations at the airport. statement is made: ‘‘Comments to FAA Class E airspace designations are AGENCY: Federal Aviation Docket No. FAA–2010–0619 and published in paragraph 6004, of FAA Administration (FAA), DOT. Airspace Docket No. 10–AWP–11’’. The Order 7400.9T, signed August 27, 2009, ACTION: Notice of proposed rulemaking postcard will be date/time stamped and and effective September 15, 2009, which (NPRM). returned to the commenter. is incorporated by reference in 14 CFR All communications received on or Part 71.1. The Class E airspace SUMMARY: This action proposes to designation listed in this document will modify Class E airspace at San before the specified closing date for be published subsequently in this Clemente, CA. Decommissioning of the comments will be considered before Order. San Clemente Island Non-Directional taking action on the proposed rule. The proposal contained in this action may The FAA has determined this Radio Beacon (NDB) at San Clemente proposed regulation only involves an Island NALF (Frederick Sherman Field) be changed in light of comments received. All comments submitted will established body of technical has made this action necessary for the regulations for which frequent and safety and management of Instrument be available for examination in the public docket both before and after the routine amendments are necessary to Flight Rules (IFR) operations at the keep them operationally current. airport. This action also makes a minor closing date for comments. A report summarizing each substantive public Therefore, this proposed regulation: (1) adjustment to the geographic Is not a ‘‘significant regulatory action’’ coordinates of the airport. contact with FAA personnel concerned with this rulemaking will be filed in the under Executive Order 12866; (2) is not DATES: Comments must be received on docket. a ‘‘significant rule’’ under DOT or before September 3, 2010. Regulatory Policies and Procedures (44 ADDRESSES: Send comments on this Availability of NPRMs FR 11034; February 26, 1979); and (3) proposal to the U.S. Department of An electronic copy of this document does not warrant preparation of a Transportation, Docket Operations, M– may be downloaded through the regulatory evaluation as the anticipated 30, West Building Ground Floor, Room Internet at http://www.regulations.gov. impact is so minimal. Since this is a W12–140, 1200 New Jersey Avenue, SE., Recently published rulemaking routine matter that will only affect air Washington, DC 20590; telephone (202) documents can also be accessed through traffic procedures and air navigation, it 366–9826. You must identify FAA the FAA’s Web page at http:// is certified this proposed rule, when Docket No. FAA–2010–0619; Airspace www.faa.gov/airports_airtraffic/ promulgated, would not have a Docket No. 10–AWP–11, at the air_traffic/publications/ significant economic impact on a beginning of your comments. You may airspace_amendments/. substantial number of small entities also submit comments through the You may review the public docket under the criteria of the Regulatory Internet at containing the proposal, any comments Flexibility Act. http://www.regulations.gov. received, and any final disposition in The FAA’s authority to issue rules FOR FURTHER INFORMATION CONTACT: person in the Dockets Office (see the regarding aviation safety is found in Eldon Taylor, Federal Aviation ADDRESSES section for the address and Title 49 of the U.S. Code. Subtitle 1, Administration, Operations Support phone number) between 9 a.m. and 5 Section 106, describes the authority for Group, Western Service Center, 1601 p.m., Monday through Friday, except the FAA Administrator. Subtitle VII, Lind Avenue, SW., Renton, WA 98057; Federal holidays. An informal docket Aviation Programs, describes in more telephone (425) 203–4537. may also be examined during normal detail the scope of the agency’s SUPPLEMENTARY INFORMATION: business hours at the Northwest authority. This rulemaking is Mountain Regional Office of the Federal promulgated under the authority Comments Invited Aviation Administration, Air Traffic described in Subtitle VII, Part A, Interested parties are invited to Organization, Western Service Center, Subpart I, Section 40103. Under that participate in this proposed rulemaking Operations Support Group, 1601 Lind section, the FAA is charged with by submitting such written data, views, Avenue, SW., Renton, WA 98057. prescribing regulations to assign the use

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of the airspace necessary to ensure the DEPARTMENT OF TRANSPORTATION in the Federal Register published on safety of aircraft and the efficient use of April 11, 2000 (65 FR 19477–78) or you airspace. This regulation is within the Federal Aviation Administration may visit http://DocketsInfo.dot.gov. scope of that authority as it modifies Docket: To read background controlled airspace at the airport. 14 CFR Part 91 documents or comments received, go to http://www.regulations.gov at any time List of Subjects in 14 CFR Part 71 [Docket No.: FAA–2010–0289; SFAR No. 110] and follow the online instructions for accessing the docket or Docket Airspace, Incorporation by reference, RIN 2120–AJ69 Navigation (air). Operations in Room W12–140 of the West Building Ground Floor at 1200 The Proposed Amendment Prohibition Against Certain Flights New Jersey Avenue, SE., Washington, Within the Territory and Airspace of DC, between 9 a.m. and 5 p.m., Monday Accordingly, pursuant to the Afghanistan; Supplemental Regulatory through Friday, except Federal holidays. Flexibility Analysis authority delegated to me, the Federal FOR FURTHER INFORMATION CONTACT: Aviation Administration proposes to AGENCY: Federal Aviation Michael Lukacs, APO–300, Federal amend 14 CFR Part 71 as follows: Administration (FAA), DOT. Aviation Administration, 800 PART 71—DESIGNATION OF CLASS A, ACTION: Proposed rule; Notice of Independence Ave., SW., Washington, B, C, D AND E AIRSPACE AREAS; AIR availability and request for comments. DC 20591; telephone number: (202) TRAFFIC SERVICE ROUTES; AND 267–9641. SUMMARY: This document announces the REPORTING POINTS SUPPLEMENTARY INFORMATION: Later in availability of and request for comments this preamble under the Additional 1. The authority citation for 14 CFR on the Supplemental Regulatory Information section, we discuss how Part 71 continues to read as follows: Flexibility Analysis for the previously you can comment on this action and published proposed rule entitled, how we will handle your comments. Authority: 49 U.S.C. 106(g), 40103, 40113, Prohibition Against Certain Flights Included in this discussion is related 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Within the Territory and Airspace of information about the docket, privacy, 1963 Comp., p. 389. Afghanistan. and the handling of proprietary or § 71.1 [Amended] DATES: Comments must be received on confidential business information. We or before August 4, 2010. also discuss how you can get a copy of 2. The incorporation by reference in related rulemaking documents. 14 CFR Part 71.1 of the FAA Order ADDRESSES: You may send comments 7400.9T, Airspace Designations and identified by Docket Number FAA– Background Reporting Points, signed August 27, 2010–0289 using any of the following On May 26, 2010, the FAA published 2009, and effective September 15, 2009 methods: in the Federal Register the Notice of • Federal eRulemaking Portal: Go to is amended as follows: Proposed Rulemaking (NPRM) entitled http://www.regulations.gov and follow Prohibition Against Certain Flights Paragraph 6004 Class E airspace the online instructions for sending your Within the Territory and Airspace of Designated as an Extension to a Class D comments electronically. Afghanistan.1 The comment period for Surface Area. • Mail: Send comments to Docket the NPRM closed on June 10, 2010. The * * * * * Operations, M–30; U.S. Department of FAA received several comments about Transportation, 1200 New Jersey AWP CA E4 San Clemente, CA [Modified] the agency’s economic assessment of the Avenue, SE., Room W12–140, West proposed rule. Specifically, some San Clemente Island NALF (Fredrick Building Ground Floor, Washington, DC commenters did not agree with the Sherman Field), CA 20590–0001. ° ′ ″ ° ′ ″ (Lat. 33 01 22 N., long. 118 35 19 W.) • Hand Delivery or Courier: Take FAA’s determination that the NPRM San Clemente Island TACAN would not have a significant economic ° ′ ″ ° ′ ″ comments to Docket Operations in (Lat. 33 01 37 N., long. 118 34 46 W.) Room W12–140 of the West Building impact on a substantial number of small That airspace extending upward from the Ground Floor at 1200 New Jersey entities. To address these concerns, the surface within 2.6 miles each side of the San Avenue, SE., Washington, DC, between FAA is publishing the below ° Clemente Island TACAN 334 radial 9 a.m. and 5 p.m., Monday through Supplemental Regulatory Flexibility extending from the 4.3-mile radius of San Friday, except Federal holidays. Analysis for comment. Clemente Island NALF (Fredrick Sherman • Fax: Fax comments to Docket Supplemental Regulatory Flexibility Field) to Control 1177L, and within 1.8 miles Operations at 202–493–2251. Analysis each side of the 064° bearing from the San For more information on the The Regulatory Flexibility Act of 1980 Clemente Island NALF (Fredrick Sherman rulemaking process, see the Additional Field) Airport, extending from the 4.3-mile (Pub. L. 96–354) (RFA) establishes ‘‘as a Information section of this document. radius to 9 miles northeast. This Class E principle of regulatory issuance that Privacy: We will post all comments airspace area is effective during the specific agencies shall endeavor, consistent with we receive, without change, to http:// dates and times established in advance by a the objectives of the rule and of Notice to Airmen. The effective date and time www.regulations.gov, including any applicable statutes, to fit regulatory and will thereafter be continuously published in personal information you provide. informational requirements to the scale the Airport/Facility Directory. Using the search function of the docket of the businesses, organizations, and Web site, anyone can find and read the Issued in Seattle, Washington, on July 1, governmental jurisdictions subject to electronic form of all comments regulation. To achieve this principle, 2010. received into any of our dockets, John Warner, agencies are required to solicit and including the name of the individual consider flexible regulatory proposals Manager, Operations Support Group, Western sending the comment (or signing the Service Center. comment for an association, business, 1 Prohibition Against Certain Flights Within the [FR Doc. 2010–17625 Filed 7–19–10; 8:45 am] labor union, etc.). You may review Territory and Airspace of Afghanistan: 75 FR 29466; BILLING CODE 4910–13–P DOT’s complete Privacy Act Statement May 26, 2010.

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and to explain the rationale for their by the FAA or when authorized by procedures the Administrator finds actions to assure that such proposals are exemption by the FAA. Otherwise, necessary for safety in air commerce and given serious consideration.’’ The RFA flight operations below FL 160 within national security. covers a wide-range of small entities, the territory and airspace of Afghanistan The FAA finds the proposed rule including small businesses, not-for- would be prohibited for all U.S. air necessary to prevent a potential hazard profit organizations, and small carriers; U.S. commercial operators; to persons and aircraft engaged in governmental jurisdictions. persons exercising the privileges of a Afghanistan flight operations. The Agencies must perform a review to U.S. airman certificate, except when nature of the hazard that the FAA seeks determine whether a rule will have a that person is operating a U.S.-registered to address is described in the preceding significant economic impact on a aircraft for a foreign air carrier; and section, ‘‘Description of the reasons why substantial number of small entities. If operators of U.S.-registered aircraft, the action by the agency is being the agency determines that it will, the except when such operators are foreign considered.’’ agency must prepare a regulatory air carriers. 3. Description and Estimate of small flexibility analysis as described in the The FAA is considering this action entities. RFA. because insurgent activity in There are currently no operational Based on the comments received Afghanistan has increased and threatens restrictions in Afghanistan. The following publication of the NPRM, we the safety of U.S. civil aircraft and proposed rule would affect U.S. have re-evaluated our certification operators operating within Afghan operators, operators of U.S.-registered under the RFA that the proposed rule airspace and overflying the territory of aircraft (except foreign air carriers), and will not, if promulgated, have a Afghanistan. This insurgent activity has U.S-certificated airmen (except those significant economic impact on a adversely affected the safety of airfield U.S. certificated airmen engaged in the substantial number of small entities. operations for these flights. The Afghan operation of U.S.-registered aircraft for Based on our re-evaluation, we have insurgents, armed with various foreign air carriers) who operate in determined that the proposed rule will, weapons, pose a serious threat to U.S. Afghanistan below FL 160. if promulgated, have a significant civil aircraft and operators at local In view of the threat escalation in the economic impact on a substantial airports and to these aircraft on territory and airspace of Afghanistan, number of small entities. Consequently, approach to and departing from these and in furtherance of the FAA we have completed a Supplemental airports. Insurgents with small arms fire Administrator’s responsibilities to Regulatory Flexibility Analysis and capabilities have been targeting airfields promote the safe flight of U.S. civil request comments from affected small with rockets and have fired on aircraft aircraft in air commerce and to issue entities. The purpose of this analysis is at these airfields. While U.S. civil aviation rules in the interest of national to identify the number of small entities aircraft have not yet specifically been security of the United States, the affected, assess the economic impact of targeted, there have been several Administrator has determined that the the proposed regulation on them, and reported events of these aircraft being potential hazard to U.S-registered consider less burdensome alternatives hit by small arms fire. Also, foreign civil aircraft and U.S.-certificated airmen and still meet the agency’s statutory aircraft that support the North Atlantic must be mitigated. Therefore, the FAA objectives. Under Section 603(b) and Treaty Organization (NATO) have been proposes to issue an SFAR to restrict 603(c) of the RFA, the analysis must shot down by small arms and rocket- flight below FL 160 within the airspace address: propelled grenade fire. and territory of Afghanistan, except in 1. A description of the reasons why 2. Objectives and legal basis for the compliance with the procedures set the action by the agency is being proposed rule. forth in the proposed rule. considered. The FAA is responsible for the safety We expect as many as 25 small 2. A succinct statement of the of flight in the United States and for the entities would seek authorization from objectives of, and legal basis for, the safety of U.S.-registered aircraft and U.S. the FAA to operate in Afghanistan proposed rule. operators throughout the world. Also, under this proposed rule. Depending on 3. A description—and, where feasible, the FAA is responsible for issuing rules the characteristics of the existing flight an estimate of the number—of small affecting the safety of air commerce and operations, the number of flights could entities to which the proposed rule will national security. The FAA’s authority be affected. The operators currently apply. to issue the rules on aviation safety is operating are all-cargo, and all have less 4. A description of the projected found in Title 49 of the United States than 1,500 employees. Generally, these reporting, recordkeeping, and other Code. Subtitle I, Section 106(g), operators provide niche market services compliance requirements of the describes the authority of the FAA and have available capacity to provide proposed rule, including an estimate of Administrator. Subtitle VII, Aviation military support. We are unable from the classes of small entities that will be Programs, describes in more detail the the comments we received to the NPRM subject to the requirement and the types scope of the agency’s authority. Section to determine the magnitude of the of professional skills necessary for 40101(d)(1) provides that the economic impact of the proposed rule preparation of the report or record. Administrator shall consider in the on these operators. Separately, we are 5. An identification, to the extent public interest, among other matters, also unable to document and publish practicable, of all relevant federal rules assigning, maintaining, and enhancing the revenue and number of operations that may duplicate, overlap, or conflict safety and security as the highest per operator. with the proposed rule. priorities in air commerce. Section 4. Compliance requirements. 6. Significant alternatives. 40105(b)(1)(A) requires the The proposed rule would allow flights 1. Description of the reasons why the Administrator to exercise his authority below FL 160 in the territory or airspace action by the agency is being consistently with the obligations of the of Afghanistan only with the approval of considered. United States Government under the FAA or by an exemption issued by This action would permit certain U.S. international agreements. Further, the the FAA. The required documentation civil flight operations below flight level FAA has broad authority under section for the affected entities to be in (FL) 160 within the territory and 44701(a)(5) to prescribe regulations compliance with this proposed rule airspace of Afghanistan, when approved governing the practices, methods, and would take each operator one hour to

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fill out, endorse and file the required that would be affected, the economic Availability of Rulemaking Documents paperwork. As such, the cost for a one- impact of the proposed regulation on × You can get an electronic copy of year period would be $94 (1 hour $94 these small entities, and whether there rulemaking documents using the per hour). are any less burdensome alternatives Internet by— In addition to the paperwork that that still meet the agency’s statutory 1. Searching the Federal eRulemaking would be required as a result of this objectives. Portal (http://www.regulations.gov); proposal, it is expected that some flight 2. Visiting the FAA’s Regulations and operations would not be authorized. Additional Information Policies web page at http:// Without authorization from the FAA to Comments Invited _ conduct these flights, the operator’s www.faa.gov/regulations policies; or The FAA invites interested persons to inability to conduct such operations 3. Accessing the Government Printing participate in this rulemaking by would result in a significant economic Office’s web page at http:// submitting written comments, data, or impact. www.gpoaccess.gov/fr/index.html. The FAA has used Department of views. The most helpful comments will You can also get a copy by sending a Transportation Form 41 data for the reference a specific portion of the request to the Federal Aviation total operating revenue per flight for Supplemental Regulatory Flexibility Administration, Office of Rulemaking, international cargo operations of U.S. Analysis or related rulemaking ARM–1, 800 Independence Avenue, Operators. In 2009, the reported median document, explain the reason for any SW., Washington, DC 20591, or by revenue estimate was approximately recommended change, and include calling (202) 267–9680. Make sure to $70,000 per flight, although the profit supporting data. To ensure the docket identify the docket or SFAR number of would be substantially less. As the does not contain duplicate comments, this rulemaking. number of flights currently operating please submit a single copy of your You may access all documents the would continue for the foreseeable written or electronic comments only one FAA considered in developing the future, operators who eliminate flights time. proposed rule, including economic as a result of the proposed rule would All comments we receive will be filed analyses and technical reports, from the incur a significant economic loss. The in the docket, as well as a report internet through the Federal proposal would affect ‘‘more than just a summarizing each substantive public eRulemaking Portal referenced in few’’ operators who fly in Afghanistan. contact with FAA personnel concerning paragraph (1). As such, we believe flights would be the proposed rulemaking. Before acting Issued in Washington, DC, on July 15, eliminated for a substantial number of on the proposal, we will consider all 2010. operators. comments we receive on or before the Pamela Hamilton-Powell, closing date for comments. We will The requirements of this proposal Director, Office of Rulemaking. would have a significant economic consider comments filed after the comment period has closed if it is [FR Doc. 2010–17762 Filed 7–19–10; 8:45 am] impact on a substantial number of small BILLING CODE 4910–13–P entities. possible to do so without incurring 5. Relevant federal rules that may expense or delay. We may make changes duplicate, overlap, or conflict with the to the proposal in light of the comments proposed rule. we receive. CONSUMER PRODUCT SAFETY COMMISSION The FAA is unaware that the rule Proprietary or Confidential Business would overlap, duplicate, or conflict Information 16 CFR Part 1218 with existing federal rules. 6. Significant Alternatives Do not file in the docket information RIN 3041–AC81 Considered. that you consider to be proprietary or Maintain the status quo: Continue to confidential business information. Send Safety Standard for Bassinets and allow all flights to occur without or deliver this information directly to Cradles requiring steps to manage the risks to the person identified in the FOR FURTHER these operations from insurgent activity INFORMATION CONTACT section of this AGENCY: Consumer Product Safety or an approval or exemption from the document. You must mark the Commission. FAA. information that you consider ACTION: Notice of reopening of comment The FAA is responsible for both the proprietary or confidential. If you send period. safety of flight in the United States and the information on a disk or CD–ROM, for the safety of U.S.-registered aircraft mark the outside of the disk or CD–ROM SUMMARY: The Consumer Product Safety and U.S. operators throughout the and also identify electronically within Commission (‘‘CPSC’’ or ‘‘Commission’’) world. The FAA rejected this alternative the disk or CD–ROM the specific is reopening the comment period for its and has not identified any significant information that is proprietary or proposed rule on the Safety Standard for alternatives to the proposed rule which confidential. Bassinets and Cradles. The reopened accomplish the stated objectives of Under 14 CFR 11.35(b), when we are comment period will expire on applicable statutes and which minimize aware of proprietary information filed September 10, 2010. any significant economic impact of the with a comment, we do not place it in DATES: Written comments in response to proposed rule on small entities. the docket. We hold it in a separate file this document must be received by the The FAA has determined that the to which the public does not have Commission no later than September 10, proposed rule would have a significant access, and we place a note in the 2010. economic impact on a substantial docket that we have received it. If we ADDRESSES: You may submit comments, number of small entities. Therefore, we receive a request to examine or copy identified by Docket No. CPSC–2010– have prepared the above Supplemental this information, we treat it as any other 0028, by any of the following methods: Regulatory Flexibility Analysis. We request under the Freedom of solicit comments on this determination. Information Act (5 U.S.C. 552). We Electronic Submissions We also solicit comments on the process such a request under the DOT Submit electronic comments in the analysis of the number of small entities procedures found in 49 CFR part 7. following way: Federal eRulemaking

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Portal: http://www.regulations.gov. public comment period which ended on in the area. Preliminary data available Follow the instructions for submitting July 12, 2010. for 2010 is consistent with continued comments. To ensure timely processing Although the NPR was posted on the attainment. EPA is also proposing to of comments, the Commission is no CPSC’s Web site at the same time it was approve, as a revision to the Michigan longer accepting comments submitted published in the Federal Register, the State Implementation Plan (SIP), the by electronic mail (e-mail) except NPR was not posted on the State’s plan for maintaining the 8-hour through http://www.regulations.gov. regulations.gov Web site until June 23, ozone NAAQS through 2021 in the area. 2010. Additionally, after publication of EPA is proposing to approve the 2005 Written Submissions the NPR, Commission staff met with emissions inventory submitted with the Submit written submissions in the various parties concerning test methods redesignation request as meeting the following way: described in the NPR. The Commission comprehensive emissions inventory Mail/Hand delivery/Courier (for paper is placing summaries of those meetings requirement of the CAA for the Allegan (preferably in five copies), disk, or CD– into the administrative record. To County area. Finally, EPA is proposing ROM submissions), to: Office of the ensure that all interested parties have to find adequate and approve the State’s Secretary, Consumer Product Safety adequate notice of this NPR and the 2021 Motor Vehicle Emission Budgets Commission, Room 502, 4330 East West meeting summaries and the ability to (MVEBs) for the Allegan County area. Highway, Bethesda, MD 20814; comment on them, the Commission is DATES: Comments must be received on telephone (301) 504–7923. reopening the docket to continue to or before August 19, 2010. Instructions: All submissions received receive public comments until ADDRESSES: Submit your comments, must include the agency name and September 10, 2010. identified by Docket ID No. EPA–R05– docket number for this rulemaking. All Dated: July 14, 2010. OAR–2010–0477, by one of the comments received may be posted Todd A. Stevenson, following methods: without change, including any personal Secretary, Consumer Product Safety 1. http://www.regulations.gov: Follow identifiers, contact information, or other Commission. the on-line instructions for submitting personal information provided, to [FR Doc. 2010–17596 Filed 7–19–10; 8:45 am] comments. http://www.regulations.gov. Do not BILLING CODE 6355–01–P 2. E-mail: [email protected]. submit confidential business 3. Fax: (312) 692–2054. information, trade secret information, or 4. Mail: Jay Bortzer, Chief, Air other sensitive or protected information ENVIRONMENTAL PROTECTION Programs Branch (AR–18J), U.S. electronically; if furnished at all, such AGENCY Environmental Protection Agency, 77 information should be submitted in West Jackson Boulevard, Chicago, writing. 40 CFR Parts 52 and 81 Illinois 60604. Docket: For access to the docket to 5. Hand delivery: Jay Bortzer, Chief, [EPA–R05–OAR–2010–0477; FRL–9176–4] read background comments or Air Programs Branch (AR–18J), U.S. comments received, go to http:// Approval and Promulgation of Environmental Protection Agency, 77 www.regulations.gov. Implementation Plans and Designation West Jackson Boulevard, 18th floor, Chicago, Illinois 60604. Such deliveries FOR FURTHER INFORMATION CONTACT: For of Areas for Air Quality Planning Purposes; Michigan; Redesignation of are only accepted during the Regional information about submitting Office normal hours of operation, and comments, call or write to Rockelle the Allegan County Area to Attainment for Ozone special arrangements should be made Hammond, Office of the Secretary, for deliveries of boxed information. The Consumer Product Safety Commission, AGENCY: Environmental Protection Regional Office official hours of Bethesda, MD 20814; telephone (301) Agency (EPA). business are Monday through Friday, 504–6833. ACTION: Proposed rule. 8:30 a.m. to 4:30 p.m., excluding SUPPLEMENTARY INFORMATION: On April Federal holidays. 28, 2010, the Commission published a SUMMARY: EPA is proposing to approve Instructions: Direct your comments to notice of proposed rulemaking (‘‘NPR’’) Michigan’s request to redesignate the Docket ID No. EPA–R05–OAR–2010– in the Federal Register titled, ‘‘Safety Allegan County, Michigan 8-hour ozone 0477. EPA’s policy is that all comments Standard for Bassinets and Cradles’’ (75 nonattainment area to attainment for the received will be included in the public FR 22303). The Commission issued the 1997 8-hour ozone standard, because docket without change and may be NPR pursuant to section 104(b) of the the request meets the statutory made available online at http:// Consumer Product Safety Improvement requirements for redesignation under www.regulations.gov, including any Act of 2008 (‘‘CPSIA’’) which requires the Clean Air Act (CAA). The Michigan personal information provided, unless the Commission to promulgate Department of Natural Resources and the comment includes information consumer product safety standards for Environment (MDNRE) submitted this claimed to be Confidential Business durable infant or toddler products. request on May 24, 2010 and Information (CBI) or other information These standards are to be ‘‘substantially supplemented it on June 16, 2010. whose disclosure is restricted by statute. the same as’’ applicable voluntary This proposed approval involves Do not submit information that you standards or more stringent than the several related actions. EPA is consider to be CBI or otherwise voluntary standard if the Commission proposing to determine that the Allegan protected through http:// concludes that more stringent County area has attained the 8-hour www.regulations.gov or e-mail. The requirements would further reduce the ozone National Ambient Air Quality http://www.regulations.gov Web site is risk of injury associated with the Standard (NAAQS). This determination an ‘‘anonymous access’’ system, which product. The NPR proposed a more is based on three years of complete, means EPA will not know your identity stringent safety standard for bassinets quality-assured ambient air quality or contact information unless you and cradles that will further reduce the monitoring data for the 2007–2009 provide it in the body of your comment. risk of injury associated with these ozone seasons that demonstrate that the If you send an e-mail comment directly products. The NPR provided a 75-day 8-hour ozone NAAQS has been attained to EPA without going through http://

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www.regulations.gov, your e-mail Court of Appeals Decisions regarding for the Allegan County area as meeting address will be automatically captured EPA’s Phase 1 Implementation Rule? the comprehensive inventory and included as part of the comment IV. What are the criteria for redesignation? requirements of section 172(c)(3) of the that is placed in the public docket and V. What is the effect of these actions? CAA. If EPA’s determination of VI. What is EPA’s analysis of the request? made available on the Internet. If you A. Attainment Determination and attainment is finalized, under the submit an electronic comment, EPA Redesignation provisions of 40 CFR 51.918, the recommends that you include your B. Adequacy of the MVEBs requirement to submit certain planning name and other contact information in C. 2005 Comprehensive Emissions SIPs related to attainment (the the body of your comment and with any Inventory Reasonably Available Control Measure disk or CD–ROM you submit. If EPA VII. What actions is EPA taking? (RACM) requirement of section 172(c)(1) cannot read your comment due to VIII. Statutory and Executive Order Reviews of the CAA, the Reasonable Further technical difficulties and cannot contact I. What should I consider as I prepare Progress (RFP) and attainment you for clarification, EPA may not be my comments for EPA? demonstration requirements of sections able to consider your comment. 172(c)(2) and (6) of the CAA, and the Electronic files should avoid the use of When submitting comments, requirement for contingency measures special characters, any form of remember to: of section 172(c)(9) of the CAA) are not encryption, and be free of any defects or 1. Identify the rulemaking by docket applicable to the area as long as it viruses. For additional instructions on number and other identifying continues to attain the NAAQS and submitting comments, go to section I of information (subject heading, Federal would cease to be applicable upon this document, ‘‘What Should I Consider Register date and page number). redesignation. In addition, as set forth in as I Prepare My Comments for EPA?’’ 2. Follow directions—EPA may ask more detail below, in the context of you to respond to specific questions or Docket: All documents in the docket redesignations, EPA has interpreted organize comments by referencing a requirements related to attainment as are listed in the http:// Code of Federal Regulations (CFR) part www.regulations.gov index. Although not applicable for purposes of or section number. redesignation. Finally, EPA is proposing listed in the index, some information is 3. Explain why you agree or disagree; to find adequate and approve the newly- not publicly available, e.g., CBI or other suggest alternatives and substitute established 2021 MVEBs for the Allegan information whose disclosure is language for your requested changes. County area. The adequacy comment restricted by statute. Certain other 4. Describe any assumptions and period for the MVEBs began on June 17, material, such as copyrighted material, provide any technical information and/ 2010, with EPA’s posting of the will be publicly available only in hard or data that you used. availability of the submittal on EPA’s copy. Publicly available docket 5. If you estimate potential costs or Adequacy Web site (at http:// materials are available either burdens, explain how you arrived at www.epa.gov/otaq/stateresources/ electronically in http:// your estimate in sufficient detail to transconf/adequacy.htm). The adequacy www.regulations.gov or in hard copy at allow for it to be reproduced. the Environmental Protection Agency, 6. Provide specific examples to comment period for these MVEBs ends Region 5, Air and Radiation Division, 77 illustrate your concerns, and suggest on July 19, 2010. Please see section VI. ‘‘ West Jackson Boulevard, Chicago, alternatives. B. of this rulemaking, Adequacy of the Illinois 60604. This facility is open from 7. Explain your views as clearly as MVEBs,’’ for further explanation of this 8:30 a.m. to 4:30 p.m., Monday through possible, avoiding the use of profanity process. We are proposing to find Friday, excluding Federal holidays. We or personal threats. adequate and approve the State’s 2021 recommend that you telephone 8. Make sure to submit your MVEBs for transportation conformity Kathleen D’Agostino, Environmental comments by the comment period purposes. Engineer, at (312) 886–1767 before deadline identified. III. What is the background for these visiting the Region 5 office. II. What actions is EPA proposing to actions? FOR FURTHER INFORMATION CONTACT: take? A. What is the general background Kathleen D’Agostino, Environmental information? Engineer, Attainment Planning and EPA is proposing to take several Maintenance Section, Air Programs related actions. EPA is proposing to Ground-level ozone is not emitted Branch (AR–18J), U.S. Environmental determine that the Allegan County directly by sources. Rather, emissions of Protection Agency, Region 5, 77 West nonattainment area has attained the nitrogen oxides (NOX) and volatile Jackson Boulevard, Chicago, Illinois 1997 8-hour ozone standard and that the organic compounds (VOCs) react in the 60604, (312) 886–1767, area has met the requirements for presence of sunlight to form ground- [email protected]. redesignation under section 107(d)(3)(E) level ozone. NOX and VOCs are referred of the CAA. EPA is thus proposing to to as precursors of ozone. SUPPLEMENTARY INFORMATION: approve the request from MDNRE to The CAA establishes a process for air Throughout this document whenever change the legal designation of the quality management through the ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean Allegan County area from NAAQS. Before promulgation of the EPA. This supplementary information nonattainment to attainment for the 8- 8-hour standard, the ozone NAAQS was section is arranged as follows: hour ozone NAAQS. EPA is also based on a 1-hour standard. EPA Table of Contents proposing to approve, as a revision to originally designated the Allegan the Michigan SIP, the State’s County area as an ozone nonattainment I. What should I consider as I prepare my maintenance plan (such approval being area under section 107 of the 1977 CAA comments for EPA? one of the CAA criteria for redesignation on March 3, 1978 (43 FR 8962). EPA II. What actions is EPA proposing to take? III. What is the background for these actions? to attainment status). The maintenance revisited this original designation in A. What is the general background plan is designed to keep the Allegan 1991 to reflect new designation information? County area in attainment of the ozone requirements contained in the 1990 B. What are the impacts of the December NAAQS through 2021. EPA is proposing CAA. On November 6, 1991 (56 FR 22, 2006, and June 8, 2007, United States to approve the 2005 emissions inventory 56694), EPA retained the original

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nonattainment designation for Allegan. ozone concentration is less than or Ozone Standard (69 FR 23951 (April 30, At the time of the 1991 designations, equal to 0.08 ppm, when rounded. The 2004)). 472 F.3d 882 (DC Cir. 2006). On current monitoring data were not data completeness requirement is met June 8, 2007, in response to several available for this area, nor had the State when the average percent of days with petitions for rehearing, the DC Circuit completed a redesignation request valid ambient monitoring data is greater clarified that the Phase 1 Rule was showing that it complied with the than 90%, and no single year has less vacated only with regard to those parts requirements of section 107(d)(3)(E) of than 75% data completeness. See 40 of the rule that had been successfully the CAA. Therefore, EPA designated the CFR part 50, Appendix I, section 2.3(d). challenged. Id., Docket No. 04 1201. area as nonattainment, but did not The MDNRE submitted a request to Therefore, several provisions of the establish a nonattainment classification, redesignate the Allegan County area to Phase 1 Rule remain effective: establishing the area as an incomplete attainment for the 1997 8-hour ozone provisions related to classifications for data ozone nonattainment area. EPA standard on May 12, 2010 and areas currently classified under subpart subsequently redesignated the Allegan supplemented the submittal on June 16, 2 of Title I, part D, of the CAA as 8-hour County area to attainment of the 1-hour 2010. The redesignation request nonattainment areas; the 8-hour standard effective January, 16 2001. (See includes three years of complete, attainment dates; and the timing for 65 FR 70490 (November 24, 2000)). This quality-assured data for the period of emissions reductions needed for attainment designation was thus in 2007 through 2009, indicating the attainment of the 8-hour ozone NAAQS. effect at the time EPA revoked the 8-hour NAAQS for ozone, as The June 8, 2007, decision also left 1-hour ozone NAAQS, on June 15, 2005. promulgated in 1997, had been attained intact the court’s rejection of EPA’s On July 18, 1997 (62 FR 38856), EPA for the Allegan County area. Under the reasons for implementing the 8-hour promulgated an 8-hour ozone standard CAA, nonattainment areas may be standard in certain nonattainment areas of 0.08 parts per million parts (ppm). On redesignated to attainment if sufficient under subpart 1 in lieu of subpart 2. By April 30, 2004 (69 FR 23857), EPA complete, quality-assured data are limiting the vacatur, the court let stand published a final rule designating and available for the Administrator to EPA’s revocation of the 1-hour standard classifying areas under the 8-hour ozone determine that the area has attained the and those anti-backsliding provisions of NAAQS. These designations and standard, and the area meets the other the Phase 1 Rule that had not been classifications became effective June 15, redesignation requirements in section successfully challenged. The June 8, 2004. EPA designated as nonattainment 107(d)(3)(E) of the CAA. 2007, decision reaffirmed the December any area that was violating the 8-hour On March 27, 2008 (73 FR 16436), 22, 2006, decision that EPA had ozone NAAQS based on the three most EPA promulgated a revised 8-hour improperly failed to retain four recent years of air quality data, 2001– ozone standard of 0.075 ppm. In May measures required for 1-hour 2003. 2008, States, environmental groups, and nonattainment areas under the anti- The CAA contains two sets of industry groups filed petitions with the backsliding provisions of the provisions, subpart 1 and subpart 2, that DC Circuit Court of Appeals for review regulations: (1) Nonattainment area New address planning and control of the 2008 ozone standards. In March Source Review (NSR) requirements requirements for nonattainment areas. 2009, the court granted EPA’s request to based on an area’s 1-hour nonattainment (Both are found in Title I, part D, of the stay the litigation so EPA could review classification; (2) section 185 penalty CAA, 42 U.S.C. 7501–7509a and 7511– the standards and determine whether fees for 1-hour severe or extreme 7511f, respectively.) Subpart 1 contains they should be reconsidered. On nonattainment areas; (3) measures to be general requirements for nonattainment September 16, 2009, EPA announced implemented pursuant to section areas for any pollutant, including ozone, reconsideration of our 2008 decision 172(c)(9) or 182(c)(9) of the CAA, on the governed by a NAAQS. Subpart 2 setting national standards for ground- provides more specific requirements for contingency of an area not making level ozone. The designation process for reasonable further progress toward ozone nonattainment areas. that standard has been stayed. On Under EPA’s implementation rule for attainment of the 1-hour NAAQS, or for January 6, 2010, EPA proposed to set the the 1997 8-hour ozone standard (69 FR failure to attain that NAAQS; and (4) level of the primary 8-hour ozone 23951 (April 30, 2004)), an area was certain transportation conformity standard within the range of 0.060 to classified under subpart 2 based on its requirements for certain types of Federal 0.070 ppm, rather than at 0.075 ppm. 8-hour ozone design value (i.e. the actions. The June 8, 2007, decision three-year average annual fourth-highest We expect by September 2010 to have clarified that the court’s reference to daily maximum 8-hour average ozone completed our reconsideration of the conformity requirements was limited to concentration), if it had a 1-hour design standard and also expect that thereafter requiring the continued use of 1-hour value at the time of designation at or we will proceed with designations. motor vehicle emissions budgets until above 0.121 ppm (the lowest 1-hour Therefore, the actions addressed in 8-hour budgets were available for 8-hour design value in Table 1 of subpart 2) (69 today’s proposed rulemaking relate only conformity determinations. FR 23954). All other areas were covered to the 1997 8-hour ozone standard. This section sets forth EPA’s views on under subpart 1, based upon their B. What are the impacts of the the potential effect of the court’s rulings 8-hour design values (69 FR 23958). The December 22, 2006, and June 8, 2007, on this proposed redesignation action. Allegan County area was designated as United States Court of Appeals For the reasons set forth below, EPA a subpart 1, 8-hour ozone nonattainment Decisions Regarding EPA’s Phase 1 does not believe that the court’s rulings area by EPA on April 30, 2004 (69 FR Implementation Rule? alter any requirements relevant to this 23857 and 23910), based on air quality redesignation action so as to preclude monitoring data from 2001–2003 (69 FR 1. Summary of Court Decision redesignation or prevent EPA from 23860). On December 22, 2006, in South proposing or ultimately finalizing this 40 CFR 50.10 and 40 CFR part 50, Coast Air Quality Management Dist. v. redesignation. EPA believes that the Appendix I provide that the 1997 8-hour EPA (South Coast), the U.S. Court of court’s December 22, 2006, and June 8, ozone standard is attained when the Appeals for the District of Columbia 2007, decisions impose no impediment three-year average of the annual fourth- Circuit vacated EPA’s Phase 1 to moving forward with redesignation of highest daily maximum 8-hour average Implementation Rule for the 8-hour this area to attainment, because even in

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light of the court’s decisions, requirements that were not applicable at preclude EPA from finalizing the redesignation is appropriate under the the time the request was submitted. The redesignation of this area. relevant redesignation provisions of the DC Circuit has recognized the inequity IV. What are the criteria for CAA and longstanding policies in such retroactive rulemaking. In Sierra redesignation? regarding redesignation requests. Club v. Whitman, 285 F.3d 63 (DC Cir. 2002), the DC Circuit upheld a district The CAA provides the requirements 2. Requirements Under the 1997 8-Hour court’s ruling refusing to make for redesignating a nonattainment area Standard retroactive an EPA determination of to attainment. Specifically, section With respect to the 1997 8-hour nonattainment that was past the 107(d)(3)(E) allows for redesignation standard, the court’s ruling rejected statutory due date. Such a provided that: (1) The Administrator EPA’s reasons for classifying areas determination would have resulted in determines that the area has attained the under subpart 1 for the 8-hour standard, the imposition of additional applicable NAAQS; (2) the and remanded that matter to the requirements on the area. The court Administrator has fully approved the Agency. In its January 16, 2009, stated: ‘‘Although EPA failed to make applicable implementation plan for the proposed rulemaking in response to the the nonattainment determination within area under section 110(k); (3) the South Coast decision, EPA has proposed the statutory time frame, Sierra Club’s Administrator determines that the to classify Allegan County under proposed solution only makes the improvement in air quality is due to subpart 2 as a moderate area. 74 FR situation worse. Retroactive relief would permanent and enforceable reductions 2936, 2944. If EPA finalizes this likely impose large costs on the States, in emissions resulting from rulemaking, the requirements under which would face fines and suits for not implementation of the applicable SIP subpart 2 will become applicable when implementing air pollution prevention and applicable Federal air pollutant they are due, a deadline that EPA has plans in 1997, even though they were control regulations and other permanent proposed to be one year after the not on notice at the time.’’ Id. at 68. and enforceable reductions; (4) the effective date of a final rulemaking Similarly here it would be unfair to Administrator has fully approved a classifying areas as moderate or penalize the area by applying to it, for maintenance plan for the area as marginal. 74 FR 2940–2941. Although a purposes of redesignation, additional meeting the requirements of section future final decision by EPA to classify SIP requirements under subpart 2 that 175A; and, (5) the State containing such this area under subpart 2 would trigger were not in effect or yet due at the time area has met all requirements applicable additional future requirements for the it submitted its redesignation request. to the area under section 110 and part area, EPA believes that this does not 3. Requirements Under the 1-Hour D. mean that redesignation cannot now go EPA provided guidance on Standard forward. This belief is based upon: (1) redesignation in the General Preamble EPA’s longstanding policy of evaluating With respect to the 1-hour standard for the Implementation of Title I of the requirements in accordance with the requirements, the Allegan County area CAA Amendments of 1990 on April 16, requirements due at the time the request was an attainment area subject to a CAA 1992 (57 FR 13498), and supplemented is submitted; and, (2) consideration of section 175A maintenance plan under this guidance on April 28, 1992 (57 FR the inequity of applying retroactively the 1-hour standard at the time that the 18070). EPA has provided further any requirements that might be applied 1-hour standard was revoked. Therefore, guidance on processing redesignation in the future. the DC Circuit’s decisions with respect requests in the following documents: First, at the time the redesignation to 1-hour nonattainment anti- ‘‘Ozone and Carbon Monoxide Design request was submitted, the Allegan backsliding requirements do not impact Value Calculations,’’ Memorandum from County area was not classified under redesignation requests for these types of William G. Laxton, Director, Technical subpart 2, nor were there any subpart 2 areas, except to the extent that the court Support Division, June 18, 1990; requirements yet due for this area. in its June 8, 2007, decision clarified ‘‘Maintenance Plans for Redesignation Under EPA’s longstanding that for those areas with 1-hour motor of Ozone and Carbon Monoxide interpretation of section 107(d)(3)(E) of vehicle emissions budgets in their Nonattainment Areas,’’ Memorandum the CAA, to qualify for redesignation, maintenance plans, anti-backsliding from G. T. Helms, Chief, Ozone/Carbon States requesting redesignation to requires that those 1-hour budgets must Monoxide Programs Branch, April 30, attainment must meet only the relevant be used for 8-hour conformity 1992; SIP requirements that came due prior to determinations until replaced by 8-hour ‘‘Contingency Measures for Ozone and the submittal of a complete budgets. To meet this requirement, Carbon Monoxide (CO) Redesignations,’’ redesignation request. See September 4, conformity determinations in such areas Memorandum from G. T. Helms, Chief, 1992, Calcagni memorandum must comply with the applicable Ozone/Carbon Monoxide Programs (‘‘Procedures for Processing Requests to requirements of EPA’s conformity Branch, June 1, 1992; Redesignate Areas to Attainment,’’ regulations at 40 CFR part 93. ‘‘Procedures for Processing Requests Memorandum from John Calcagni, With respect to the three other anti- to Redesignate Areas to Attainment,’’ Director, Air Quality Management backsliding provisions for the 1-hour Memorandum from John Calcagni, Division). See also Michael Shapiro standard that the court found were not Director, Air Quality Management Memorandum, September 17, 1993, and properly retained, the Allegan County Division, September 4, 1992; 60 FR 12459, 12465–66 (March 7, 1995) area is an attainment area subject to a ‘‘State Implementation Plan (SIP) (Redesignation of Detroit-Ann Arbor). maintenance plan for the 1-hour Actions Submitted in Response to Clean See Sierra Club v. EPA, 375 F.3d 537 standard, and the NSR, contingency Air Act (ACT) Deadlines,’’ (7th Cir. 2004), which upheld EPA’s measure (pursuant to section 172(c)(9) Memorandum from John Calcagni, redesignation rulemaking applying this or 182(c)(9)), and fee provision Director, Air Quality Management interpretation. See also 68 FR 25418, requirements no longer apply to an area Division, October 28, 1992; 25424, 25427 (May 12, 2003) that has been redesignated to attainment ‘‘Technical Support Documents (Redesignation of St. Louis). of the 1-hour standard. (TSDs) for Redesignation Ozone and Moreover, it would be inequitable to Thus, the decision in South Coast Air Carbon Monoxide (CO) Nonattainment retroactively apply any new SIP Quality Management Dist. would not Areas,’’ Memorandum from G. T. Helms,

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Chief, Ozone/Carbon Monoxide V. What is the effect of these actions? to be attaining the 8-hour ozone NAAQS Programs Branch, August 17, 1993; is determined in accordance with 40 Approval of the redesignation request CFR 50.10 and part 50, Appendix I, ‘‘State Implementation Plan (SIP) would change the official designation of based on three complete, consecutive Requirements for Areas Submitting the Allegan County area for the 1997 calendar years of quality-assured air Requests for Redesignation to 8-hour ozone NAAQS found at 40 CFR quality monitoring data. To attain the Attainment of the Ozone and Carbon part 81. It would also incorporate into standard, the three-year average of the Monoxide (CO) National Ambient Air the Michigan SIP a plan for maintaining fourth-highest daily maximum 8-hour Quality Standards (NAAQS) On or After the 8-hour ozone NAAQS through 2021. average ozone concentrations measured November 15, 1992,’’ Memorandum The maintenance plan includes at each monitor within an area over from Michael H. Shapiro, Acting contingency measures as required under each year must not exceed 0.08 ppm. Assistant Administrator for Air and CAA section 175A to remedy future Based on the rounding convention Radiation, September 17, 1993; violations of the 8-hour NAAQS. It also described in 40 CFR part 50, Appendix ‘‘Use of Actual Emissions in establishes MVEBs for the Allegan I, the standard is attained if the design Maintenance Demonstrations for Ozone County area of 3.93 tons per day (tpd) value is 0.084 ppm or below. The data and CO Nonattainment Areas,’’ VOC and 6.92 tpd NO for 2021. X must be collected and quality-assured in Memorandum from D. Kent Berry, VI. What is EPA’s analysis of the accordance with 40 CFR part 58, and Acting Director, Air Quality request? recorded in the EPA’s Air Quality Management Division, to Air Division System (AQS). The monitors generally Directors, Regions 1–10, November 30, A. Attainment Determination and should have remained at the same 1993; Redesignation location for the duration of the ‘‘Part D New Source Review (part D EPA is proposing to determine that monitoring period required for NSR) Requirements for Areas the Allegan County area has attained the determining attainment. Requesting Redesignation to 1997 8-hour ozone standard and that the Michigan included in its Attainment,’’ Memorandum from Mary area has met all other applicable redesignation request certified ozone D. Nichols, Assistant Administrator for redesignation criteria under CAA monitoring data for the 2007 to 2009 Air and Radiation, October 14, 1994; section 107(d)(3)(E). The basis for EPA’s ozone seasons. Michigan has quality- and proposed approvals of the redesignation assured all of the ambient monitoring ‘‘Reasonable Further Progress, requests is as follows: data in accordance with 40 CFR 58.10, Attainment Demonstration, and Related and has recorded it in the AQS 1. The Area Has Attained the 8-Hour Requirements for Ozone Nonattainment database. The data meet the Ozone NAAQS (Section 107(d)(3)(E)(i)) Areas Meeting the Ozone National completeness criteria in 40 CFR 50, Ambient Air Quality Standard,’’ EPA is proposing to make a Appendix I, which requires a minimum Memorandum from John S. Seitz, determination that the Allegan County completeness of 75% annually and 90% Director, Office of Air Quality Planning area has attained the 1997 8-hour ozone over each three-year period. Monitoring and Standards, May 10, 1995. NAAQS. Whether an area is considered data are presented in Table 1 below.

TABLE 1—ANNUAL 4TH HIGH DAILY MAXIMUM 8-HOUR OZONE CONCENTRATION AND THREE-YEAR AVERAGES OF 4TH HIGH DAILY MAXIMUM 8-HOUR OZONE CONCENTRATIONS

2007 4th high 2008 4th high 2009 4th high 2007–2009 County Monitor (ppm) (ppm) (ppm) average (ppm)

Allegan ...... 26–005–0003 0.094 0.073 0.076 0.081

Preliminary data available for 2010 are 2. The Area Has Met All Applicable all applicable requirements of the consistent with continued attainment. Requirements Under Section 110 and Michigan SIP for purposes of In addition, as discussed below with Part D; and the Area Has a Fully redesignation, in accordance with respect to the maintenance plan, Approved SIP Under Section 110(k) section 107(d)(3)(E)(ii). As discussed MDNRE has committed to continue to (Sections 107(d)(3)(E)(v) and below, in this action EPA is proposing 107(d)(3)(E)(ii)) operate an EPA-approved monitoring to approve Michigan’s 2005 emissions network as necessary to show ongoing We have determined that Michigan inventory as meeting the section compliance with the NAAQS. MDNRE has met all currently applicable SIP 172(c)(3) comprehensive emissions remains obligated to continue to quality- requirements for purposes of inventory requirement. assure monitoring data in accordance redesignation for the Allegan County In proposing these determinations, we with 40 CFR part 58 and to enter all data area under section 110 of the CAA have ascertained which SIP into AQS in accordance with Federal (general SIP requirements). We are also requirements are applicable to the area guidelines. In summary, EPA believes proposing to determine that the for purposes of redesignation, and have that the data show that the Allegan Michigan SIP meets all SIP determined that there are SIP measures County area has attained the 1997 8- requirements currently applicable for meeting those requirements and that hour ozone NAAQS. purposes of redesignation under part D they are fully approved under section of Title I of the CAA (requirements 110(k) of the CAA. As discussed more specific to subpart 1 nonattainment fully below, for purposes of evaluating areas), in accordance with section a redesignation request, SIPs must be 107(d)(3)(E)(v). In addition, with the fully approved only with respect to exception of the emissions inventory requirements that became due prior to under section 172(3), we have approved

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the submission of the redesignation See also Calcagni memorandum at 6 classification. EPA believes that the request. (‘‘The requirements for reasonable requirements linked with a particular The September 4, 1992, Calcagni further progress and other measures nonattainment area’s designation and memorandum (see ‘‘Procedures for needed for attainment will not apply for classification are the relevant measures Processing Requests to Redesignate redesignations because they only have to evaluate in reviewing a redesignation Areas to Attainment,’’ Memorandum meaning for areas not attaining the request. The transport SIP submittal from John Calcagni, Director, Air standard.’’) requirements, where applicable, Quality Management Division, a. The Allegan County Area Has Met All continue to apply to a State regardless September 4, 1992) describes EPA’s Applicable Requirements for Purposes of the designation of any one particular interpretation of section 107(d)(3)(E) of of Redesignation Under Section 110 and area in the State. Thus, we believe that the CAA. Under this interpretation, a Part D of the CAA these requirements should not be State and the area it wishes to construed to be applicable requirements redesignate must meet the relevant CAA i. Section 110 General SIP Requirements for purposes of redesignation. requirements that are due prior to the Section 110(a) of Title I of the CAA Further, we believe that the other State’s submittal of a complete contains the general requirements for a section 110 elements described above redesignation request for the area. See SIP. Section 110(a)(2) provides that the that are not connected with also the September 17, 1993, Michael implementation plan submitted by a nonattainment plan submissions and Shapiro memorandum and 60 FR 12459, State must have been adopted by the not linked with an area’s attainment 12465–12466 (March 7, 1995) State after reasonable public notice and status are also not applicable (Redesignation of Detroit-Ann Arbor). hearing, and, among other things, must: requirements for purposes of Applicable requirements of the CAA Include enforceable emission redesignation. A State remains subject that come due subsequent to the State’s limitations and other control measures, to these requirements after an area is submittal of a complete request remain means or techniques necessary to meet redesignated to attainment. We applicable until a redesignation to the requirements of the CAA; provide conclude that only the section 110 and attainment is approved, but are not for establishment and operation of part D requirements that are linked with required as a prerequisite to appropriate devices, methods, systems, a particular area’s designation and redesignation. See section 175A(c) of and procedures necessary to monitor classification are the relevant measures the CAA; Sierra Club v. EPA, 375 F.3d ambient air quality; provide for which we may consider in evaluating a 537 (7th Cir. 2004). See also 68 FR implementation of a source permit redesignation request. This approach is 25424, 25427 (May 12, 2003) program to regulate the modification consistent with EPA’s existing policy on (Redesignation of St. Louis). and construction of any stationary applicability of conformity and If EPA’s proposal to determine that source within the areas covered by the oxygenated fuels requirements for the Allegan County area has attained the plan; include provisions for the redesignation purposes, as well as with 1997 8-hour ozone standard is finalized, implementation of part C, Prevention of section 184 ozone transport pursuant to 40 CFR 51.918, the Significant Deterioration (PSD) and part requirements. See Reading, requirements to submit certain planning D, NSR permit programs; include Pennsylvania, proposed and final SIPs related to attainment, including criteria for stationary source emission rulemakings (61 FR 53174–53176 attainment demonstration requirements control measures, monitoring, and (October 10, 1996)) and (62 FR 24826 (the RACM requirement of section reporting; include provisions for air (May 7, 1997)); Cleveland-Akron-Lorain, 172(c)(1) of the CAA, the RFP and quality modeling; and provide for Ohio, final rulemaking (61 FR 20458 attainment demonstration requirements public and local agency participation in (May 7, 1996)); and Tampa, Florida, of sections 172(c)(2) and (c)(6) of the planning and emission control rule final rulemaking (60 FR 62748 CAA, and the requirement for development. (December 7, 1995)). See also the Section 110(a)(2)(D) of the CAA contingency measures of section discussion on this issue in the requires that SIPs contain measures to 172(c)(9) of the CAA), will not be Cincinnati, Ohio 1-hour ozone prevent sources in a State from applicable to the area as long as it redesignation (65 FR 37890 (June 19, significantly contributing to air quality continues to attain the NAAQS and 2000)), and in the Pittsburgh, problems in another State. To would cease to apply upon Pennsylvania 1-hour ozone implement this provision, EPA has redesignation. In addition, in the redesignation (66 FR 50399 (October 19, required certain States to establish context of redesignations, EPA has 2001)). programs to address transport of air interpreted requirements related to We have reviewed Michigan’s SIP and pollutants (NO SIP Call 1 and Clean Air attainment as not applicable for X have concluded that it meets the general Interstate Rule (CAIR) (70 FR 25162, purposes of redesignation. For example, SIP requirements under section 110 of May 12, 2005)). However, the section in the General Preamble, EPA stated the CAA to the extent they are 110(a)(2)(D) requirements for a State are that: applicable for purposes of not linked with a particular redesignation. EPA has previously [t]he section 172(c)(9) requirements are nonattainment area’s designation and directed at ensuring RFP and attainment by approved provisions of the Michigan the applicable date. These requirements no 1 On October 27, 1998 (63 FR 57356), EPA issued SIP addressing section 110 elements longer apply when an area has attained the a NOX SIP Call requiring the District of Columbia under the 1-hour ozone standard (40 standard and is eligible for redesignation. and 22 states to reduce emissions of NOX in order CFR 52.1170). Further, in submittals Furthermore, section 175A for maintenance to reduce the transport of ozone and ozone dated December 6, 2007, and September plans * * * provides specific requirements precursors. In compliance with EPA’s NOX SIP Call, MDNRE has developed rules governing the control 19, 2008, Michigan confirmed that the for contingency measures that effectively State continues to meet the section 110 supersede the requirements of section of NOX emissions from Electric Generating Units 172(c)(9) for these areas. (EGUs), major non-EGU industrial boilers, major requirements for the 8-hour ozone cement kilns, and internal combustion engines. ‘‘General Preamble for the Interpretation of standard. EPA has not yet taken EPA approved Michigan’s rules as fulfilling Phase rulemaking action on these submittals; Title I of the Clean Air Act Amendments of I of the NOX SIP Call on May 4, 2005 (70 FR 23029) 1990,’’ (General Preamble) 57 FR 13498, and as meeting Phase II of the NOX SIP Call on however, such approval is not necessary 13564 (April 16, 1992). January 29, 2008 (73 FR 5101). for redesignation.

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ii. Part D Requirements to an RFP requirement, the requirement applicable for purposes of EPA has determined that, if EPA to submit the section 172(c)(9) redesignation. Subpart 1 Section 176 Conformity finalizes the approval of the emissions contingency measures is not applicable Requirements. inventories discussed in section VI.C. of for purposes of redesignation. Id. Section 172(c)(3) requires submission Section 176(c) of the CAA requires this rulemaking, the Michigan SIP will and approval of a comprehensive, States to establish criteria and meet the applicable SIP requirements accurate and current inventory of actual procedures to ensure that Federally- for the Allegan County area applicable emissions. As part of Michigan’s supported or funded activities, for purposes of redesignation under part redesignation request for the Allegan including highway projects, conform to D of the CAA. Subpart 1 of part D, found County area, the State submitted a 2005 the air quality planning goals in the in sections 172–176 of the CAA, sets emissions inventory. As discussed applicable SIPs. The requirement to forth the basic nonattainment below in section VI.C., EPA is proposing determine conformity applies to requirements applicable to all to approve the 2005 inventory, transportation plans, programs and nonattainment areas. Subpart 2 of part submitted by Michigan along with the projects developed, funded or approved D, which includes section 182 of the redesignation request, as meeting the under Title 23 of the U.S. Code and the CAA, establishes additional specific section 172(c)(3) emissions inventory Federal Transit Act (transportation requirements depending on the area’s requirement. conformity) as well as to all other nonattainment classification. Section 172(c)(4) requires the Federally-supported or funded projects Since the Allegan County area was identification and quantification of (general conformity). State conformity not classified under subpart 2, of Part D allowable emissions for major new and revisions must be consistent with at the time its redesignation request was modified stationary sources in an area, Federal conformity regulations relating submitted, the subpart 2 requirements and section 172(c)(5) requires permits to consultation, enforcement, and do not apply for purposes of evaluating for the construction and operation of enforceability, which EPA promulgated the State’s redesignation request. The new and modified major stationary pursuant to CAA requirements. applicable subpart 1 requirements are sources anywhere in the nonattainment EPA believes that it is reasonable to contained in sections 172(c)(1)–(9) and area. EPA has determined that, since interpret the conformity SIP in section 176. PSD requirements will apply after requirements as not applying for Subpart 1 Section 172 Requirements. redesignation, areas being redesignated purposes of evaluating the redesignation For purposes of evaluating this need not comply with the requirement request under section 107(d) for two redesignation request, the applicable that a nonattainment NSR program be reasons. First, the requirement to submit section 172 SIP requirements for the approved prior to redesignation, SIP revisions to comply with the Allegan County area are contained in provided that the area demonstrates conformity provisions of the CAA sections 172(c)(1)-(9). A thorough maintenance of the NAAQS without continues to apply to areas after discussion of the requirements part D NSR. A more detailed rationale redesignation to attainment, since such contained in section 172 can be found for this view is described in a areas would be subject to a section 175A in the General Preamble for memorandum from Mary Nichols, maintenance plan. Second, EPA’s Implementation of Title I (57 FR 13498 Assistant Administrator for Air and Federal conformity rules require the (April 16, 1992)). Radiation, dated October 14, 1994, performance of conformity analyses in Section 172(c)(1) requires the plans entitled, ‘‘Part D New Source Review the absence of Federally-approved State for all nonattainment areas to provide Requirements for Areas Requesting rules. Therefore, because areas are for the implementation of all RACM as Redesignation to Attainment.’’ Michigan subject to the conformity requirements expeditiously as practicable and to has demonstrated that the Allegan regardless of whether they are provide for attainment of the primary County area will be able to maintain the redesignated to attainment and, because NAAQS. EPA interprets this standard without part D NSR in effect; they must implement conformity under requirement to impose a duty on all therefore, the State need not have a fully Federal rules if State rules are not yet nonattainment areas to consider all approved part D NSR program prior to approved, EPA believes it is reasonable available control measures and to adopt approval of the redesignation request. to view these requirements as not and implement such measures as are The State’s PSD program will become applying for purposes of evaluating a reasonably available for implementation effective in the Allegan County area redesignation request. See Wall v. EPA, in each area as components of the area’s upon redesignation to attainment. See 265 F.3d 426 (6th Cir. 2001), upholding attainment demonstration. Because rulemakings for Detroit, Michigan (60 this interpretation. See also 60 FR attainment has been reached, no FR 12467–12468 (March 7, 1995)); 62748, 62749–62750 (Dec. 7, 1995) additional measures are needed to Cleveland-Akron-Lorain, Ohio (61 FR (Tampa, Florida). provide for attainment, and section 20458, 20469–20470 (May 7, 1996)); EPA approved Michigan’s general and 172(c)(1) requirements are no longer Louisville, Kentucky (66 FR 53665 transportation conformity SIPs on considered to be applicable as long as (October 23, 2001)); and Grand Rapids, December 18, 1996 (61 FR 66607 and 61 the area continues to attain the standard Michigan (61 FR 31834–31837 (June 21, FR 66609, respectively). Section 176(c) until redesignation. 40 CFR 51.918. 1996)). of the CAA was amended by provisions The RFP requirement under section Section 172(c)(6) requires the SIP to contained in the Safe, Accountable, 172(c)(2) is defined as progress that contain control measures necessary to Flexible, Efficient Transportation Equity must be made toward attainment. This provide for attainment of the standard. Act: A Legacy for Users (SAFETEALU), requirement is not relevant for purposes Because attainment has been reached, which was signed into law on August of redesignation because the Allegan no additional measures are needed to 10, 2005 (Pub. L. 109–59). Among the County area has monitored attainment provide for attainment. changes Congress made to this section of the ozone NAAQS. (General Section 172(c)(7) requires the SIP to of the CAA were streamlined Preamble, 57 FR 13564). See also 40 meet the applicable provisions of requirements for State conformity SIPs. CFR 51.918. In addition, because the section 110(a)(2). As noted above, we Michigan is in the process of updating Allegan County area has attained the believe the Michigan SIP meets the its transportation conformity SIP to ozone NAAQS and is no longer subject requirements of section 110(a)(2) meet these new requirements. Michigan

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has submitted onroad motor vehicle 2008, one of the years the Allegan standards that limit the sulfur content of budgets for the Allegan County area of County area monitored attainment. The diesel fuel. A second phase, which took 3.93 tpd VOC and 6.92 tpd NOX for reduction in emissions and the effect in 2007, further reduced the 2021. The area must use the MVEBs corresponding improvement in air highway diesel fuel sulfur content to 15 from the maintenance plan in any quality over this time period can be parts per million, leading to additional conformity determination that is attributed to a number of regulatory reductions in combustion NOX and VOC effective on or after the effective date of control measures that Allegan County emissions. EPA expects this rule to the maintenance plan approval. and upwind areas have implemented in achieve a 95% reduction in NOX recent years. emissions from diesel trucks and busses. b. The Allegan County Area Has a Fully Non-Road Diesel Rule. EPA Approved Applicable SIP Under Section a. Permanent and Enforceable Controls promulgated this rule in 2004. This rule 110(k) of the CAA Implemented applies to diesel engines used in If EPA issues a final approval of the The following is a discussion of industries, such as construction, emissions inventory under section permanent and enforceable measures agriculture, and mining. EPA estimates 172(c)(3), EPA will have fully approved that have been implemented in the area: that compliance with this rule will cut the Michigan SIP for the Allegan County NO emissions from non-road diesel i. Stationary Source NO Rules X area under section 110(k) of the CAA for X engines by up to 90%. This rule is all requirements applicable for purposes Michigan has developed rules currently achieving emission of redesignation. EPA may rely on prior governing the control of NOX emissions reductions, but will not be fully SIP approvals in approving a from Electric Generating Units (EGUs), implemented until 2010. redesignation request (See page 3 of the major non-EGU industrial boilers, major September 4, 1992, John Calcagni cement kilns, and internal combustion iii. Control Measures in Upwind Areas memorandum; Southwestern engines. EPA approved Michigan’s rules On October 27, 1998 (63 FR 57356), Pennsylvania Growth Alliance v. as fulfilling Phase I of the NOX SIP Call EPA issued a NOX SIP Call requiring the Browner, 144 F.3d 984, 989–990 (6th on May 4, 2005 (70 FR 23029) and as District of Columbia and 22 States to Cir. 1998); Wall v. EPA, 265 F.3d 426 meeting Phase II of the NOX SIP Call on reduce emissions of NOX. Affected (6th Cir. 2001)) plus any additional January 29, 2008 (73 FR 5101). Michigan States were required to comply with measures it may approve in conjunction began complying with Phase I of this Phase I of the SIP Call beginning in with a redesignation action. See 68 FR rule in 2004. Compliance with Phase II 2004, and with Phase II beginning in 25413, 25426 (May 12, 2003). Since the of the SIP Call, which requires the 2007. The reduction in NOX emissions passage of the CAA of 1970, Michigan control NOX emissions from large has resulted in lower concentrations of has adopted and submitted, and EPA internal combustion engines, began in transported ozone entering the Allegan has fully approved, provisions 2007. County area. Between 2005 and 2008, addressing various required SIP units subject to Phase I of the NOX SIP ii. Federal Emission Control Measures elements under the 1-hour ozone Call have reduced ozone season standard. In this action, EPA is Reductions in VOC and NOX emissions by 68,000 tons. In addition, proposing to approve Michigan’s 2005 emissions have occurred statewide and under Phase II of the NOX SIP Call, EPA emissions inventory for the Allegan in upwind areas as a result of Federal estimates that emissions from cement County area as meeting the requirement emission control measures, with kilns have been reduced by 30% and of section 172(c)(3) of the CAA. No additional emission reductions expected emissions from internal combustion Allegan County area SIP provisions are to occur in the future. Federal emission engines have been reduced by 80–91%. currently disapproved, conditionally control measures include the following. Emission reductions resulting from approved, or partially approved. Tier 2 Emission Standards for regulations developed in response to the Vehicles and Gasoline Sulfur Standards. NOX SIP Call are permanent and 3. The Improvement in Air Quality Is These emission control requirements enforceable. Due to Permanent and Enforceable result in lower VOC and NOX emissions Reductions in Emissions Resulting From from new cars and light duty trucks, b. Emission Reductions Implementation of the SIP and including sport utility vehicles. The For the point, area and nonroad Applicable Federal Air Pollution Federal rules were phased in between sectors, Michigan is using the 2005 Control Regulations and Other 2004 and 2009. The EPA has estimated emissions inventory developed in Permanent and Enforceable Reductions that, by the end of the phase-in period, conjunction with LADCO (Base M (Section 107(d)(3)(E)(iii)) the following vehicle NOX emission Round 5) as the nonattainment EPA finds that Michigan has reductions will occur nationwide: inventory. The main purpose of LADCO demonstrated that the observed air passenger cars (light duty vehicles) is to provide technical assessments for quality improvement in the Allegan (77%); light duty trucks, minivans, and and assistance to its member States on County area is due to permanent and sports utility vehicles (86%); and, larger problems of air quality. LADCO’s enforceable reductions in emissions sports utility vehicles, vans, and heavier primary geographic focus is the area resulting from implementation of the trucks (69 to 95%). VOC emission encompassed by its member States SIP, Federal measures, and other State- reductions are expected to range from (Illinois, Indiana, Michigan, Ohio, and adopted measures. 12 to 18%, depending on vehicle class, Wisconsin) and any areas which affect In making this demonstration, over the same period. Some of these air quality in its member States. In MDNRE has calculated the change in emission reductions had occurred by developing the 2005 nonattainment year emissions between 2005 and 2008. the 2006–2008 period used to inventory, MDNRE provided point and Michigan is using the 2005 emissions demonstrate attainment, and additional area source inventories to LADCO. inventory developed in conjunction emission reductions will occur during LADCO processed these inventories with the Lake Michigan Air Directors the maintenance period. through the Emission Modeling System Consortium (LADCO) as the Heavy-Duty Diesel Engine Rule. EPA to generate summer weekday emissions nonattainment inventory. The State issued this rule in July 2000. This rule, for VOC and NOX. The point source data developed an attainment inventory for which went into effect in 2004, includes provided to LADCO is a combination of

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EPA’s EGU inventory and source emissions estimates were developed for the nonroad sector was interpolated specific data reported to MDNRE for commercial marine vessels, aircraft, and from LADCO 2005, 2009, and 2018 non-EGU sources. Area source railroads (MAR), three nonroad MAR emissions estimates. Point source emissions were estimated by MDNRE categories not included in NMIM. emissions were calculated by MDNRE using published Emission Inventory Onroad mobile emissions were prepared using the 2008 Michigan Air Emissions Improvement Program methodologies or by the Michigan Department of Reporting System point source methodologies shared by other States. Transportation (MDOT) using the inventory. Onroad mobile emissions The methodology used for each area MOBILE6.2 emissions model. were prepared by MDOT using the source category was documented. Michigan is using 2008 for the MOBILE6.2 emissions model. Nonroad mobile emissions were attainment year inventory. Michigan Using the inventories described above generated for LADCO using EPA’s used linear regression analysis to Michigan has documented changes in National Mobile Inventory Model extrapolate area source emissions VOC and NOX emissions from 2005 to (NMIM), with the following exceptions: estimates. Nonroad emissions were 2008 for the Allegan County area. recreational motorboat populations and calcualted using NMIM, as described Emissions data are shown in Table 2, spatial surrogates were updated and above, except that the MAR portion of below.

TABLE 2—COMPARISON OF 2005 AND 2008 VOC AND NOX EMISSIONS FOR THE ALLEGAN COUNTY AREA (TPD)

VOC NOX Net change Net change 2005 2008 (2005–2008) 2005 2008 (2005–2008)

Point ...... 2.02 1.52 ¥0.50 2.33 3.45 1.12 Area ...... 10.00 9.33 ¥0.67 1.00 1.02 0.02 Onroad ...... 4.70 3.93 ¥0.77 8.43 6.92 ¥1.51 Nonroad ...... 6.16 4.59 ¥1.57 4.44 4.55 0.11

Total ...... 22.88 19.37 ¥3.51 16.20 15.94 ¥0.26

Table 2 shows that the Allegan continue to be maintained for ten years c. Demonstration of Maintenance County area reduced VOC emissions by following the initial ten-year Along with the redesignation request, 3.51 tpd and NOX emissions by 0.26 tpd maintenance period. To address the MDNRE submitted revisions to the between 2005 and 2008. Based on the possibility of future NAAQS violations, Michigan 8-hour ozone SIP to include a information summarized above, the maintenance plan must contain maintenance plan for the Allegan Michigan has adequately demonstrated contingency measures with a schedule County area, in compliance with section that the improvement in air quality is for implementation as EPA deems 175A of the CAA. The demonstration due to permanent and enforceable necessary to assure prompt correction of shows maintenance of the 8-hour ozone emissions reductions. any future 8-hour ozone violations. standard through 2021 by showing that 4. The Area Has a Fully Approved The September 4, 1992, John Calcagni current and future emissions of VOC Maintenance Plan Pursuant to Section memorandum provides additional and NOX for the Allegan County area 175A of the CAA (Section guidance on the content of a remain at or below attainment year 107(d)(3)(E)(iv)) maintenance plan. The memorandum emission levels. A maintenance In conjunction with its request to clarifies that an ozone maintenance plan demonstration need not be based on redesignate the Allegan County should address the following items: The modeling. See Wall v. EPA, 265 F.3d nonattainment area to attainment status, attainment VOC and NOX emissions 426 (6th Cir. 2001), Sierra Club v. EPA, Michigan submitted a SIP revision to inventories, a maintenance 375 F.3d 537 (7th Cir. 2004). See also 66 provide for the maintenance of the 8- demonstration showing maintenance for FR 53094, 53099–53100 (October 19, hour ozone NAAQS in the area through the ten years of the maintenance period, 2001), 68 FR 25413, 25430–25432 (May 2021. a commitment to maintain the existing 12, 2003). monitoring network, factors and Michigan is using emissions a. Maintenance Plan Requirements procedures to be used for verification of inventory projections for the years 2018 Section 175A of the CAA sets forth continued attainment of the NAAQS, and 2021 to demonstrate maintenance. the required elements of a maintenance and a contingency plan to prevent or MDOT calculated onroad emissions for plan for areas seeking redesignation correct future violations of the NAAQS. 2018 and 2021 using the MOBILE6.2 from nonattainment to attainment. b. Attainment Inventory emissions model. MDEQ used the 2018 Under section 175A, the plan must Base M, Round 5 emissions inventory demonstrate continued attainment of The MDNRE developed an emissions developed by LADCO for the remaining the applicable NAAQS for at least ten inventory for 2008, one of the years source categories for 2018. For 2021, years after the Administrator approves a used to demonstrate monitored MDNRE estimated emissions for the redesignation to attainment. Eight years attainment of the 8-hour NAAQS, as remaining source categories using linear after the redesignation, the State must described above. The attainment level of regression analysis. NOX reductions submit a revised maintenance plan emissions is summarized in Table 2, from CAIR are not included in the 2018 which demonstrates that attainment will above. and 2021 emissions estimates.

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TABLE 3—COMPARISON OF 2008, 2018, AND 2021 VOC AND NOX EMISSIONS FOR THE ALLEGAN COUNTY AREA (TPD)

VOC NOX Net Net Net Net change change change change 2008 2018 2021 (2008– (2008– 2008 2018 2021 (2008– (2008– 2018) 2021) 2018) 2021)

Point ...... 1.52 2.79 2.91 1.27 1.39 4.45 2.10 2.13 ¥2.35 ¥2.32 Area ...... 9.33 8.61 8.16 ¥0.72 ¥1.17 1.02 1.09 1.11 0.07 0.09 Onroad ...... 3.93 2.53 2.28 ¥1.40 ¥1.65 6.92 3.10 2.71 ¥3.82 ¥4.21 Nonroad ...... 4.59 3.88 2.20 ¥0.71 ¥2.39 4.55 2.04 2.11 ¥2.51 ¥2.44

Total ...... 19.37 17.81 15.55 ¥1.56 ¥3.82 16.94 8.33 8.06 ¥8.61 ¥8.88

The emission projections show that 2008.’’ LADCO produced a base year Ohio, and Wisconsin are shown below Michigan does not expect emissions in inventory for 2005 and future year in Table 4. The emission projections the Allegan County area to exceed the inventories for 2009, 2012, and 2018. To used for the modeling analysis do not level of the 2008 attainment year estimate future EGU NOX emissions account for certain relevant factors such inventory during the maintenance without implementation of CAIR, as allowance trading and potential period, even without implementation of LADCO projected 2007 EGU NOX changes in operation of existing control emissions for all States in the modeling CAIR. (See also discussion below). As devices. The NOX projections indicate shown in Table 3, VOC and NOX domain based on Energy Information that, due to the NOX SIP Call, certain emissions in the Allegan County area Administration growth rates by State State rules, consent decrees resulting and fuel type for the years 2009, 2012, are projected to decrease by 3.82 tpd from enforcement cases, and ongoing and 2018. The assumed 2007–2018 and 8.88 tpd, respectively, between implementation of a number of mobile 2008 and 2021. growth rates were 8.8% for Illinois, source rules, EGU NO is not expected In addition, LADCO performed a Iowa, Missouri, and Wisconsin; 13.5% X regional modeling analysis to address for Indiana, Kentucky, Michigan, and to increase in Michigan, or any of the the effect of the recent court decision Ohio; and 15.1% for Minnesota. States in the immediate region, and vacating CAIR. This analysis is Emissions were adjusted by applying overall NOX emissions in Michigan and documented in LADCO’s ‘‘Regional Air legally enforceable controls (e.g., the nearby region are expected to Quality Analyses for Ozone, PM2.5, and consent decree or rule requirements). decrease substantially between 2005 2 Regional Haze: Final Technical Support EGU NOX emissions projections for the and 2020. Total NOX emissions Document (Supplement), September 12, States of Illinois, Indiana, Michigan, projections are shown in Table 5, below.

TABLE 4—EGU NOX EMISSIONS FOR THE STATES OF ILLINOIS, INDIANA, MICHIGAN, OHIO, AND WISCONSIN (TPD) FOR 2007, 2009, 2012, AND 2018

2007 2009 2012 2018

EGU ...... 1,582 1,552 1,516 1,524

TABLE 5—TOTAL NOX EMISSIONS FOR THE STATES OF ILLINOIS, INDIANA, MICHIGAN, OHIO, AND WISCONSIN (TPD) FOR THE YEARS 2005, 2009, 2012, AND 2018

2005 2009 2012 2018

Total NOX ...... 8,260 6,778 6,076 4,759

Given that 2007 is one of the years Ozone modeling performed by expected to increase significantly Michigan used to demonstrate LADCO supports the conclusion that the between 2018 and 2021. Given that monitored attainment of the 8-hour Allegan County area will maintain the projected emissions and modeled ozone NAAQS, Table 4 shows that EGU NOX 8-hour ozone standard throughout the levels continue to decrease substantially emissions will remain below attainment maintenance period. Peak modeled through 2018, it is reasonable to infer levels through 2018. If the rate of ozone levels in the area for 2012 and that a 2021 modeling run would also emissions increase between 2012 and 2018 are 0.083 ppm and 0.078 ppm, show levels well below the 1997 8-hour 2018 continues through 2021, EGU NOX respectively. These projected ozone ozone standard. emissions would still remain below levels were modeled applying only EPA has considered the relationship attainment levels in 2020. Furthermore, legally enforceable controls; e.g., of the maintenance plans to the as shown in Table 5, total NOX consent decrees, rules, the NOX SIP reductions required pursuant to CAIR. emissions clearly continue to decrease Call, Federal motor vehicle control This rule was remanded to EPA, and the substantially throughout the programs, etc. Because these programs process of developing a replacement maintenance period. will remain in place, emission levels, rule is ongoing. However, the remand of and therefore ozone levels, would not be CAIR does not alter the requirements of

2 There is more uncertainty about the use of SO2 emissions; thus, further review and discussion will these emission projections for future PM2.5 SIP allowances and future projections for SO2 be needed regarding the appropriateness of using approvals and redesignation requests.

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the NOX SIP Call, and Michigan has attainment level of emissions is the EPA deems necessary to assure that the demonstrated maintenance without any level of emissions during one of the State will promptly correct a violation additional CAIR requirements (beyond years in which the area met the NAAQS. of the NAAQS that occurs after those required by the NOX SIP Call). The Allegan County area attained the 8- redesignation. The maintenance plan Therefore, EPA believes that Michigan’s hour ozone NAAQS during the 2007– should identify the contingency demonstration of maintenance under 2009 time period. Michigan used 2008 measures to be adopted, a schedule and sections 175A and 107(d)(3)(E) is valid. as the attainment level of emissions for procedure for adoption and The NOX SIP Call requires States to the area. For the Allegan County area, implementation of the contingency make significant, specific emissions the emissions from point, area, nonroad, measures, and a time limit for action by reductions. It also provided a and mobile sources in 2008 equaled the State. The State should also identify mechanism, the NOX Budget Trading 19.37 tpd of VOC. In the maintenance specific indicators to be used to Program, which States could use to plan, MDNRE projected emission levels determine when the contingency achieve those reductions. When EPA for 2021 to be 15.55 tpd of VOC. The SIP measures need to be adopted and promulgated CAIR, it discontinued submissions demonstrate that the implemented. The maintenance plan (starting in 2009) the NOX Budget Allegan County area will continue to must include a requirement that the Trading Program, 40 CFR 51.121(r), but maintain the standard with emissions at State will implement all measures with created another mechanism, the CAIR this level. The safety margin for VOC is respect to control of the pollutant(s) that ozone season trading program, which calculated to be the difference between were contained in the SIP before States could use to meet their SIP Call these amounts or, in this case, 3.82 tpd redesignation of the area to attainment. obligations (70 FR 25289–90). EPA notes of VOC for 2021. By this same method, See section 175A(d) of the CAA. that a number of States, when 8.88 tpd (i.e., 16.94 tpd less 8.06 tpd) is As required by section 175A of the submitting SIP revisions to require the safety margin for NOX for 2021. The CAA, Michigan has adopted a sources to participate in the CAIR ozone safety margin, or a portion thereof, can contingency plan for the Allegan County season trading program, removed the be allocated to any of the source area to address possible future ozone air SIP provisions that required sources to categories, as long as the total quality problems. The contingency plan participate in the NOX Budget Trading attainment level of emissions is adopted by Michigan has two levels of Program. In addition, because the maintained. response, an action level response and provisions of CAIR, including the ozone a contingency measure response. season NO trading program, remain in d. Monitoring Network X An action level response will be place during the remand, EPA is not Michigan currently operates one triggered when the two-year average of currently administering the NO Budget ozone monitor in Allegan County. In its X the annual fourth-highest daily peak 8- Trading Program. Nonetheless, all redesignation request, MDNRE has hour ozone concentration is 0.085 ppm States, regardless of the current status of committed to continue to operate an or higher within the maintenance area. their regulations that previously EPA-approved monitoring network as An action level response will consist of required participation in the NOX necessary to demonstrate ongoing Michigan performing a review of the Budget Trading Program, will remain compliance with the NAAQS. Michigan circumstances leading to the high subject to all of the requirements in the remains obligated to continue to quality monitored values. MDNRE will conduct NOX SIP Call even if the existing CAIR assure monitoring data in accordance this review within six months following ozone season trading program is with 40 CFR part 58 and enter all data the close of the ozone season. If MDNRE withdrawn or altered. In addition, the into the AQS in accordance with determines that contingency measure anti-backsliding provisions of 40 CFR Federal guidelines. 51.905(f) specifically provide that the implementation is necessary to prevent e. Verification of Continued Attainment a future violation of the NAAQS, provisions of the NOX SIP Call, MDNRE will select and implement a including the statewide NOX emission Continued attainment of the ozone budgets, continue to apply after NAAQS in the Allegan County area measure that can be implemented revocation of the 1-hour standard. depends, in part, on the State’s efforts promptly. All NOX SIP Call States have SIPs that toward tracking indicators of continued A contingency measure response will currently satisfy their obligations under attainment during the maintenance be triggered by a violation of the 1997 the SIP Call, the SIP Call reduction period. Michigan’s plan for verifying 8-hour ozone standard (a three-year requirements are being met, and EPA continued attainment of the 8-hour average of the annual fourth-highest will continue to enforce the standard in the Allegan County area daily maximum 8-hour average ozone requirements of the NOX SIP Call even consists of a plan to continue ambient concentration of 0.085 ppm or greater). after any response to the CAIR remand. ozone monitoring in accordance with When a contingency measure response For these reasons, EPA believes that the requirements of 40 CFR part 58. is triggered, Michigan will select one or regardless of the status of the CAIR MDNRE will also continue to develop more control measures for program, the NOX SIP Call requirements and submit periodic emission implementation. The timing for can be relied upon in demonstrating inventories as required by the Federal implementation of a contingency maintenance. Here, Michigan has Consolidated Emissions Reporting Rule measure is dependent on the process demonstrated maintenance based in part (67 FR 39602, June 10, 2002) to track needed for legal adoption and source on those requirements. future levels of emissions. compliance, which varies for each As part of its maintenance plan, the measure. MDNRE will expedite the State elected to include a ‘‘safety f. Contingency Plan process of adopting and implementing margin’’ for the area. A ‘‘safety margin’’ The contingency plan provisions are the selected measures, with a goal of is the difference between the attainment designed to promptly correct or prevent having measures in place as level of emissions (from all sources) and a violation of the NAAQS that might expeditiously as practicable and within the projected level of emissions (from occur after redesignation of an area to 18 months after State certification of the all sources) in the maintenance plan attainment. Section 175A of the CAA violation. The State has confirmed which continues to demonstrate requires that a maintenance plan EPA’s interpretation that this attainment of the standard. The include such contingency measures as commitment means that the measure

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will be adopted and implemented that are allocated to highway and transit The EPA public comment period on within 18 months of being triggered. vehicle use that, together with adequacy of the 2021 MVEBs for the MDNRE included the following list of emissions from other sources in the Allegan County area closes on July 19, potential contingency measures in the area, will provide for attainment or 2010. maintenance plan: maintenance, as applicable. EPA, through this rulemaking, is i. Reduced VOC content in Under 40 CFR part 93, a MVEB for an proposing to approve the MVEBs for use architectural, industrial, and area seeking a redesignation to to determine transportation conformity maintenance coating rule; attainment is established for the last in the Allegan County area because the ii. Auto body refinisher self- year of the maintenance plan. The MVEBs submitted by MDNRE meet the certification audit program; MVEB serves as a ceiling on emissions adequacy requirements contained in iii. Reduced VOC degreasing/solvent from an area’s planned transportation EPA’s conformity rule (40 CFR cleaning rule; system. The MVEB concept is further 93.118(e)(4)), and EPA has determined iv. Diesel retrofit program; explained in the preamble to the that the area can maintain attainment of v. Reduced idling program; November 24, 1993, transportation the 8-hour ozone NAAQS for the vi. Portable fuel container conformity rule (58 FR 62188). relevant maintenance period with replacement rule; Under section 176(c) of the CAA, new mobile source emissions at the levels of vii. Food preparation flame broiler transportation projects, such as the the MVEBs. MDNRE has determined the control rule; and construction of new highways, must 2021 MVEBs for the Allegan County viii. Lower Reid vapor pressure ‘‘conform’’ to (i.e., be consistent with) area to be 3.93 tpd for VOC and 6.92 tpd gasoline program. the SIP. Conformity to the SIP means for NOX. These MVEBs exceed the that transportation activities will not onroad mobile source VOC and NOX g. Provisions for Future Updates of the cause new air quality violations, worsen emissions projected by MDNRE for Ozone Maintenance Plan existing air quality violations, or delay 2021, as summarized in Table 3 above As required by section 175A(b) of the timely attainment of the NAAQS. If a (‘‘onroad’’ source sector). MDNRE CAA, MDNRE commits to submit to the transportation plan does not conform, decided to include safety margins EPA an updated ozone maintenance most new transportation projects that (described further below) of 1.65 tpd for plan eight years after redesignation of would expand the capacity of roadways VOC and 3.58 tpd for NOX in the the Allegan County area to cover an cannot go forward. Regulations at 40 MVEBs to provide for mobile source additional ten-year period beyond the CFR part 93 set forth EPA policy, growth. Michigan has demonstrated that initial ten-year maintenance period. As criteria, and procedures for the Allegan County area can maintain required by section 175A of the CAA, demonstrating and assuring conformity the 8-hour ozone NAAQS with mobile Michigan has committed to retain the of such transportation activities to a SIP. source emissions of 3.93 tpd for VOC When reviewing SIP revisions VOC and NOX control measures and 6.92 tpd for NOX, including the contained in the SIP prior to containing MVEBs, including allocated safety margins, since total redesignation. attainment strategies, rate-of-progress emissions will still remain under EPA has concluded that the plans, and maintenance plans, EPA attainment year emission levels. must affirmatively approve or find that maintenance plan for Allegan County 2. What is a safety margin? adequately addresses the five basic the MVEBs are ‘‘adequate’’ for use in ‘‘ ’’ components of a maintenance plan: determining transportation conformity. A safety margin is the difference attainment inventory, maintenance Once EPA affirmatively approves or between the attainment level of demonstration, monitoring network, finds the submitted MVEBs to be emissions (from all sources) and the verification of continued attainment, adequate for transportation conformity projected level of emissions (from all sources) in the maintenance plan. As and a contingency plan. Thus EPA purposes, the MVEBs must be used by noted in Table 3, the emissions in the proposes to find that the maintenance State and Federal agencies in Allegan County area are projected to plan SIP revision submitted by determining whether proposed have safety margins of 3.82 tpd for VOC Michigan for the Allegan County area transportation projects conform to the and 8.88 tpd for NO in 2021 (the meets the requirements of section 175A SIP as required by section 176(c) of the X difference between the attainment year, of the CAA. CAA. EPA’s substantive criteria for determining the adequacy of MVEBs are 2008, emissions and the projected 2021 B. Adequacy of the MVEBs set out in 40 CFR 93.118(e)(4). emissions for all sources in the Allegan EPA’s process for determining County area). Even if emissions reached 1. How are MVEBs developed and what adequacy of a MVEB consists of three the full level of the safety margin, the are the MVEBs for the Allegan County basic steps: (1) Providing public counties would still demonstrate area? notification of a SIP submission; (2) maintenance since emission levels Under the CAA, States are required to providing the public the opportunity to would equal those in the attainment submit, at various times, control strategy comment on the MVEB during a public year. SIP revisions and ozone maintenance comment period; and, (3) EPA’s finding The MVEBs requested by MDNRE plans for ozone nonattainment areas and of adequacy. The process of determining contain safety margins for mobile for areas seeking redesignations to the adequacy of submitted SIP MVEBs sources smaller than the allowable attainment of the ozone standard. These is codified at 40 CFR 93.118. safety margins reflected in the total emission control strategy SIP revisions The maintenance plan submitted by emissions for the Allegan County area. (e.g., RFP and attainment demonstration Michigan for the Allegan County area The State is not requesting allocation to SIP revisions) and ozone maintenance contains new VOC and NOX MVEBs for the MVEBs of the entire available safety plans may include MVEBs based on 2021. The availability of the SIP margins reflected in the demonstration onroad mobile source emissions for submission with these 2021 MVEBs was of maintenance. Therefore, even though criteria pollutants and/or their announced for public comment on the State is requesting MVEBs that precursors to address pollution from EPA’s Adequacy Web site on June 17, exceed the projected onroad mobile cars and trucks. The MVEBs are the 2010, at: http://www.epa.gov/otaq/ source emissions for 2021 contained in portions of the total allowable emissions stateresources/transconf/currsips.htm. the demonstration of maintenance, the

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increase in onroad mobile source imposed by State law. A redesignation does not impose any new regulatory emissions that can be considered for to attainment does not in and of itself requirements on Tribes, impact any transportation conformity purposes is create any new requirements, but rather existing sources of air pollution on well within the safety margins of the results in the applicability of Tribal lands, nor impair the ozone maintenance demonstration. requirements contained in the CAA for maintenance of ozone national ambient Further, once allocated to mobile areas that have been redesignated to air quality standards in Tribal lands. sources, these safety margins will not be attainment. Moreover, the Administrator However, because there are Tribal lands available for use by other sources. is required to approve a SIP submission located in Allegan County, we provided C. 2005 Comprehensive Emissions that complies with the provisions of the the affected Tribe with the opportunity Inventory CAA and applicable Federal regulations. to consult with EPA on the 42 U.S.C. 7410(k); 40 CFR 52.02(a). redesignation. The affected Tribe raised As discussed above, section 172(c)(3) Thus, in reviewing SIP submissions, no concerns with the proposed rule. of the CAA requires nonattainment EPA’s role is to approve State choices, List of Subjects areas to submit a comprehensive, provided that they meet the criteria of accurate and current inventory of actual the Clean Air Act. Accordingly, these 40 CFR Part 52 emissions. As part of Michigan’s actions merely do not impose additional redesignation request for the Allegan Environmental protection, Air requirements beyond those imposed by pollution control, Intergovernmental County area, the State submitted a 2005 State law and the Clean Air Act. For that emissions inventory. This inventory is relations, Ozone, Nitrogen dioxides, reason, these actions: Reporting and recordkeeping discussed above in section VI.A.3.b. and • Are not ‘‘significant regulatory requirements, Volatile organic summarized in Table 2. EPA is actions’’ subject to review by the Office compounds. proposing to approve this 2005 of Management and Budget under inventory as meeting the section Executive Order 12866 (58 FR 51735, 40 CFR Part 81 172(c)(3) emissions inventory October 4, 1993); Environmental protection, Air requirement. • Do not impose an information pollution control. VII. What actions is EPA taking? collection burden under the provisions of the Paperwork Reduction Act (44 Authority: 42 U.S.C. 7401 et seq. EPA is proposing to determine that U.S.C. 3501 et seq.); Dated: July 8, 2010. the Allegan County, Michigan area has • Are certified as not having a attained the 1997 8-hour ozone NAAQS. Susan Hedman, significant economic impact on a Regional Administrator, Region 5. EPA is proposing to approve the substantial number of small entities [FR Doc. 2010–17680 Filed 7–19–10; 8:45 am] redesignation of the Allegan County under the Regulatory Flexibility Act (5 area from nonattainment to attainment U.S.C. 601 et seq.); BILLING CODE 6560–50–P for the 1997 8-hour ozone NAAQS. • Do not contain any unfunded After evaluating the redesignation mandate or significantly or uniquely request submitted by Michigan, EPA ENVIRONMENTAL PROTECTION affect small governments, as described AGENCY believes that the request meets the in the Unfunded Mandates Reform Act redesignation criteria set forth in section of 1995 (Pub. L. 104–4); 40 CFR Part 63 107(d)(3)(E) of the CAA. The final • Do not have Federalism approval of this redesignation request implications as specified in Executive [EPA–HQ–OAR–2008–0080; FRL–9176–6] would change the official designation Order 13132 (64 FR 43255, August 10, RIN 2060–AQ26 for the Allegan County area from 1999); nonattainment to attainment for the • Are not an economically significant Amendments to National Emission 1997 8-hour ozone standard. EPA is also regulatory action based on health or Standards for Hazardous Air proposing to approve the maintenance safety risks subject to Executive Order Pollutants: Area Source Standards for plan SIP revision for the Allegan County 13045 (62 FR 19885, April 23, 1997); Prepared Feeds Manufacturing area. EPA’s proposed approval of the • Is not a significant regulatory action maintenance plan is based on the State’s subject to Executive Order 13211 (66 FR AGENCY: Environmental Protection demonstration that the plan meets the 28355, May 22, 2001); Agency (EPA). requirements of section 175A of the • Are not subject to requirements of ACTION: Proposed rule. CAA, as described more fully above. section 12(d) of the National EPA is proposing to approve MDNRE’s Technology Transfer and Advancement SUMMARY: EPA is proposing three 2005 emissions inventory for the Act of 1995 (15 U.S.C. 272 note) because amendments to the regulatory text in the Allegan County area as meeting the application of those requirements would prepared feeds manufacturing area requirements of section 172(c)(3) of the be inconsistent with the Clean Air Act; source rule. First, this action would CAA. Finally, EPA finds adequate and and correct the date for new sources to is proposing to approve the State’s 2021 • Do not provide EPA with the submit a Notification of Compliance MVEBs for the Allegan County area. discretionary authority to address, as Status (NOCS) form. Second, this action appropriate, disproportionate human would correct information that needs to VIII. Statutory and Executive Order health or environmental effects, using be included in the Notification of Reviews practicable and legally permissible Compliance Report for those small Under the CAA, redesignation of an methods, under Executive Order 12898 facilities that are not required to install area to attainment and the (59 FR 7629, February 16, 1994). cyclones on their pelleting operations. accompanying approval of a In addition, this rule does not have Third, this action would add language maintenance plan under section Tribal implications as specified by to the regulatory text requiring submittal 107(d)(3)(E) are actions that affect the Executive Order 13175 (65 FR 67249, of the annual compliance certification status of a geographical area and do not November 9, 2000), because report that was inadvertently left out of impose any additional regulatory redesignation is an action that affects the final rule. These corrections and requirements on sources beyond those the status of a geographical area and clarifications would not change the

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standards established by the rule. These and included as part of the comment F. Executive Order 13175: Consultation corrections and clarifications also that is placed in the public docket and and Coordination with Indian Tribal would not result in the imposition of made available on the Internet. If you Governments G. Executive Order 13045: Protection of any costs beyond those included in the submit an electronic comment, EPA Children from Environmental Health and final rule. recommends that you include your Safety Risks DATES: Written comments must be name and other contact information in H. Executive Order 13211: Actions received on or before September 3, the body of your comment and with any Concerning Regulations That 2010. disk or CD–ROM you submit. If EPA Significantly Affect Energy Supply, cannot read your comment due to Distribution, or Use ADDRESSES: Submit your comments, technical difficulties and cannot contact I. National Technology Transfer identified by Docket ID No. EPA–HQ– you for clarification, EPA may not be Advancement Act OAR–2008–0080, by one of the J. Executive Order 12898: Federal Actions able to consider your comment. following methods: to Address Environmental Justice in Electronic files should avoid the use of • Federal eRulemaking Portal: http:// Minority Populations and Low-Income special characters, any form of www.regulations.gov: Follow the Populations encryption, and be free of any defects or instructions for submitting comments. viruses. I. Why is EPA issuing this proposed • Agency Web site: http:// rule? www.epa.gov/oar/docket.html. Follow Docket: EPA has established a docket This document proposes to take the instructions for submitting for this action under Docket ID No. action on three amendments to the comments on the EPA Air and Radiation EPA–HQ–OAR–2008–0080. All regulatory text in the prepared feeds Docket Web site. documents in the docket are listed in manufacturing area source rule. We • E-mail: [email protected]. the Federal Docket Management System have published a direct final rule Include Docket ID No. EPA–HQ–OAR– index at http://www.regulations.gov. amending the regulatory text in the 2008–0080 in the subject line of the Although listed in the index, some prepared feeds manufacturing area message. information is not publicly available source rule in the ‘‘Rules and • Fax: Send comments to (202) 566– (e.g., confidential business information Regulations’’ section of this Federal 9744, Attention Docket ID No. EPA– (CBI) or other information whose Register because we view this as a HQ–OAR–2008–0080. disclosure is restricted by statute). noncontroversial action and anticipate • Mail: Area Source NESHAP for Certain other material, such as no adverse comment. We have Prepared Feeds Manufacturing Docket, copyrighted material, will be publicly explained our reasons for this action in Environmental Protection Agency, Air available only in hard copy form. the preamble to the direct final rule. and Radiation Docket and Information Publicly available docket materials are If we receive no adverse comment by Center, Mailcode: 2822T, 1200 available either electronically through September 3, 2010, we will not take Pennsylvania Avenue, NW., http://www.regulations.gov or in hard further action on this proposed rule. If Washington, DC 20460. Please include a copy at the EPA Docket Center, Public we receive adverse comment, we will total of two copies. Reading Room, EPA West, Room 3334, • withdraw the amendments in the direct Hand Delivery: EPA Docket Center, 1301 Constitution Ave., NW., final rule or certain amendments in the Public Reading Room, EPA West, Room Washington, DC. The Public Reading direct final rule and those amendments 3334, 1301 Constitution Avenue, NW., Room is open from 8:30 a.m. to 4:30 will not take effect. We would address Washington, DC 20460. Such deliveries p.m., Monday through Friday, excluding all public comments in any subsequent are only accepted during the Docket’s legal holidays. The telephone number final rule based on this proposed rule. normal hours of operation, and special for the Public Reading Room is (202) In the ‘‘Rules and Regulations’’ section arrangements should be made for 566–1744, and the telephone number for of this Federal Register, we are deliveries of boxed information. the Air Docket is (202) 566–1742. amending the regulatory text in the Instructions: Direct your comments to FOR FURTHER INFORMATION CONTACT: Jan prepared feeds manufacturing area Docket ID No. EPA–HQ–OAR–2008– source rule as a direct final rule without 0080. EPA’s policy is that all comments King, Regulatory Development and Policy Analysis Group, Office of Air a prior proposal. If we receive no received will be included in the public adverse comment on that direct final docket without change and may be Quality Planning and Standards (C404– 05), Environmental Protection Agency, rule, we will not take further action on made available online at http:// this proposed rule. If we receive adverse www.regulations.gov, including any Research Triangle Park, NC 27711. Telephone number: (919) 541–5665; fax comment, we will withdraw the personal information provided, unless amendments in the direct final rule or the comment includes information number: (919) 541–0242; e-mail address: [email protected]. certain amendments in the direct final claimed to be confidential business rule and those amendments will not information (CBI) or other information SUPPLEMENTARY INFORMATION: The take effect. The regulatory text for this whose disclosure is restricted by statute. information presented in this preamble proposal is identical to that for the Do not submit information that you is organized as follows: direct final rule. consider to be CBI or otherwise I. Why is EPA issuing this proposed rule? We do not intend to institute a second protected through http:// II. Does this action apply to me? comment period on this action. Any www.regulations.gov or e-mail. The III. Where can I get a copy of this document? parties interested in commenting must http://www.regulations.gov Web site is IV. What amendments are we making to the do so at this time. For further an ‘‘anonymous access’’ system, which rule? information, please see the information means EPA will not know your identity V. Statutory and Executive Order Reviews proved in the ADDRESSES section of this or contact information unless you A. Executive Order 12866: Regulatory document. provide it in the body of your comment. Planning and Review II. Does this action apply to me? If you send an e-mail comment directly B. Paperwork Reduction Act to EPA without going through http:// C. Regulatory Flexibility Act Regulated Entities. Categories and www.regulations.gov, your e-mail D. Unfunded Mandates Reform Act entities potentially regulated by the address will be automatically captured E. Executive Order 13132: Federalism proposed rule include:

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Category entities NAICS code 1 Examples of regulated entities

Other Animal Foods Manufacturing ...... 311119 Animal feeds, prepared (except dog and cat), manufacturing. 1 North American Industry Classification System.

This table is not intended to be 3. The requirement to submit the small not-for-profit enterprises, and exhaustive, but rather provides a guide annual compliance certification report small governmental jurisdictions. for readers regarding entities likely to be under certain circumstances is added. For the purposes of assessing the affected by this action. To determine This requirement was in the proposed impacts of this rule on small entities, whether your facility is regulated by this rule but inadvertently deleted in the small entity is defined as: (1) A small action, you should examine the final rule. business as defined by the Small applicability criteria in 40 CFR These changes provide corrections Business Administration’s (SBA) 63.11619, subpart DDDDDDD (NESHAP and clarifications that are referenced in regulations found at 13 CFR 121.201; (2) for Area Sources: Prepared Feeds the final rule published on January 5, a small governmental jurisdiction that is Manufacturing). If you have any 2010. Today’s action notifies interested a government of a city, county, town, questions regarding the applicability of parties of the proposed amendments. school district, or special district with a this action to a particular entity, consult population of less than 50,000; and (3) either the State delegated authority or V. Statutory and Executive Order a small organization that is any not-for- the EPA regional representative, as Reviews profit enterprise which is independently listed in 40 CFR 63.13 of subpart A A. Executive Order 12866: Regulatory owned and operated and is not (General Provisions). Planning and Review dominant in its field. After considering the economic III. Where can I get a copy of this This proposed action is not a impacts of this proposed rule on small document? ‘‘significant regulatory action’’ under the entities, I certify that this proposed Electronic Access. In addition to being terms of Executive Order 12866 (58 FR action will not have a significant available in the docket, an electronic 51735, October 4, 1993) and is, economic impact on a substantial copy of this proposed action will also be therefore, not subject to review under number of small entities. This action available on the Worldwide Web the Executive Order. does not impose any additional costs (WWW) through the Technology over those in the final rule published on Transfer Network (TTN). Following B. Paperwork Reduction Act January 5, 2010 (75 FR 522). We signature, a copy of this final action will This action does not impose any new continue to be interested in the be posted on the TTN’s policy and information collection burden. The potential impacts of this proposed guidance page for newly proposed or proposed amendments result in no amendment on small entities and promulgated rules at the following changes to the information collection welcome comments on issues related to address: http://www.epa.gov/ttn/oarpg/. requirements of the existing standards such impacts. The TTN provides information and of performance and will have little or no D. Unfunded Mandates Reform Act technology exchange in various areas of impact on the information collection air pollution control. This proposed rule does not contain estimate of projected cost and hour a Federal mandate that may result in IV. What amendments are we making burden made and approved by the expenditures of $100 million or more to this rule? Office of Management and Budget for State, local, and Tribal governments, On January 5, 2010 (75 FR 522), the (OMB) during the development of the in the aggregate, or to the private sector EPA promulgated the national emission existing standards of performance. in any one year. This proposed rule is standards for hazardous air pollutants Therefore, the information collection not expected to impact State, local, or (NESHAP) for area source prepared requests have not been amended. Tribal governments. Thus, this rule feeds manufacturing facilities as subpart However, OMB has previously approved would not be subject to the DDDDDDD in 40 CFR part 63. Today’s the information collection requirements requirements of sections 202 and 205 of action proposes the following contained in the existing regulations the Unfunded Mandates Reform Act corrections and clarifications: (subpart DDDDDDD, 40 CFR part 63) (UMRA). 1. The date for new sources to submit under the provisions of the Paperwork This proposed rule would also not be the Notification of Compliance Form is Reduction Act, 44 U.S.C. 3501 et seq., subject to the requirements of section corrected from ‘‘within 120 days of and has assigned OMB control number 203 of UMRA because it contains no startup, or by May 4, 2012, whichever 2060–0635 (ICR 2354.02). The OMB regulatory requirements that might is later,’’ to within 120 days of startup control numbers for EPA’s regulations significantly or uniquely affect small or October 18, 2010, whichever is later. in 40 CFR are listed in 40 CFR part 9. governments. 2. Small facilities that are not subject C. Regulatory Flexibility Act to the requirement to install and operate E. Executive Order 13132: Federalism a cyclone to control emissions from The Regulatory Flexibility Act This proposed rule does not have pelleting operations must submit generally requires an agency to prepare federalism implications. It will not have documentation of their initial average a regulatory flexibility analysis of any substantial direct effects on the States, daily feed production level in their rule subject to notice and comment on the relationship between the national Notification of Compliance Status rulemaking requirements under the government and the States, or on the report. The final rule used the incorrect Administrative Procedure Act or any distribution of power and term ‘‘initial daily pelleting production other statute unless the agency certifies responsibilities among the various level.’’ This is being corrected to that the rule would not have a levels of government, as specified in indicate that documentation of the significant economic impact on a Executive Order 13132. This proposed ‘‘initial average daily feed production substantial number of small entities. rule does not impose any requirements level’’ be submitted. Small entities include small businesses, on State and local governments. Thus,

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Executive Order 13132 does not apply available and applicable voluntary ACTION: Notice of petition finding and to this proposed rule. consensus standards. initiation of status review. In the spirit of Executive Order 13132, These proposed rule amendments do and consistent with EPA policy to not involve technical standards as SUMMARY: We, the U.S. Fish and promote communications between EPA defined in the NTTAA. Therefore, this Wildlife Service, announce a 90-day and State and local governments, EPA proposed rule is not subject to NTTAA. finding on a petition to list Pinus specifically solicits comment on this albicaulis (whitebark pine) as J. Executive Order 12898: Federal endangered or threatened under the proposed rule from State and local Actions To Address Environmental officials. Endangered Species Act of 1973, as Justice in Minority Populations and amended and to designate critical F. Executive Order 13175: Consultation Low-Income Populations habitat. Based on our review, we find and Coordination With Indian Tribal Executive Order 12898 (59 FR 7629, that the petition presents substantial Governments February 16, 1994) establishes Federal scientific or commercial information This proposed action does not have executive policy on environmental indicating that listing P. albicaulis may Tribal implications, as specified in justice. Its main provision directs be warranted. Therefore, with the Executive Order 13175 (65 FR 67249, Federal agencies, to the greatest extent publication of this notice, we are November 9, 2000). This proposed rule practicable and permitted by law, to initiating a review of the status of the imposes no requirements on Tribal make environmental justice part of their species to determine if listing P. governments; thus, Executive Order mission by identifying and addressing, albicaulis is warranted. To ensure that 13175 does not apply to this proposed as appropriate, disproportionately high this status review is comprehensive, we action. EPA specifically solicits and adverse human health or are requesting scientific and commercial additional comment on this proposed environmental effects of their programs, data and other information regarding action from Tribal officials. policies, and activities on minority this species. Based on the status review, populations and low-income we will issue a 12–month finding on the G. Executive Order 13045: Protection of populations in the United States. petition, which will address whether Children From Environmental Health EPA has determined that this the petitioned action is warranted, as and Safety Risks proposed rule would not have provided in section 4(b)(3)(B) of the Act. EPA interprets Executive Order 13045 disproportionately high and adverse DATES: To allow us adequate time to (62 FR 19885, April 23, 1997) as human health or environmental effects conduct this review, we request that we applying to those regulatory actions that on minority or low-income populations receive information on or before concern health or safety risks, such that because it increases the level of September 20, 2010. Please note that if the analysis required under section 5– environmental protection for all affected you are using the Federal eRulemaking 501 of the Order has the potential to populations without having any Portal (see ADDRESSES section, below), influence the regulation. This proposed disproportionately high and adverse the deadline for submitting an action is not subject to Executive Order human health or environmental effects electronic comment is 11:59 p.m. 13045 because it is based solely on on any population, including any Eastern Standard Time on this date. technology performance. minority or low-income population. After September 20, 2010, you must List of Subjects for 40 CFR Part 63 submit information directly to the Field H. Executive Order 13211: Actions Office (see FOR FURTHER INFORMATION Concerning Regulations That Environmental protection, CONTACT section below). Please note that Significantly Affect Energy Supply, Administrative practice and procedure, we may not be able to address or Distribution, or Use Air pollution control, Hazardous incorporate information that we receive This proposed rule is not a substances, Intergovernmental relations, after the above requested date. ‘‘significant energy action’’ as defined in Reporting and recordkeeping ADDRESSES: You may submit Executive Order 13211 (66 FR 28355, requirements. information by one of the following May 22, 2001) because it is not likely to Dated: July 14, 2010. methods: have a significant adverse effect on the Lisa P. Jackson, • Federal eRulemaking Portal: http:// supply, distribution, or use of energy. Administrator. www.regulations.gov. In the box that reads ‘‘Enter Keyword or ID,’’ enter the I. National Technology Transfer and [FR Doc. 2010–17710 Filed 7–19–10; 8:45 am] docket number for this finding, which is Advancement Act BILLING CODE 6560–50–P FWS–R6–ES–2010–0047. Check the box Section 12(d) of the National that reads ‘‘Open for Comment/ Technology Transfer and Advancement DEPARTMENT OF THE INTERIOR Submission,’’ and then click the Search Act of 1995 (‘‘NTTAA’’), Public Law button. You should then see an icon that 104–113 (15 U.S.C. 272 note) directs Fish and Wildlife Service reads ‘‘Submit a Comment.’’ Please EPA to use voluntary consensus ensure that you have found the correct standards in its regulatory activities, 50 CFR Part 17 rulemaking before submitting your unless to do so would be inconsistent comment. with applicable law or otherwise [Docket No. FWS–R6–ES–2010–0047] • U.S. mail or hand-delivery: Public impractical. Voluntary consensus [MO 92210–0–0008] Comments Processing, Attn: FWS–R6– standards are technical standards (e.g., Endangered and Threatened Wildlife ES–2010–0047; Division of Policy and materials specifications, test methods, and Plants; 90–Day Finding on a Directives Management; U.S. Fish and sampling procedures, and business Petition to List Pinus albicaulis Wildlife Service; 4401 N. Fairfax Drive, practices) that are developed or adopted (Whitebark Pine) as Endangered or Suite 222; Arlington, VA 22203. by voluntary consensus standards Threatened with Critical Habitat We will post all information received bodies. NTTAA directs EPA to provide on http://www.regulations.gov. This Congress, through OMB, explanations AGENCY: Fish and Wildlife Service, generally means that we will post any when the Agency decides not to use Interior. personal information you provide us

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(see the Request for Information section determinable at the time we propose to Background below for more details). list the species. Therefore, within the Section 4(b)(3)(A) of the Act requires FOR FURTHER INFORMATION CONTACT: geographical range currently occupied that we make a finding on whether a Brian T. Kelly, Field Supervisor, by P. albicaulis, we request data and petition to list, delist, or reclassify a Wyoming Ecological Services Field information on: species presents substantial scientific or Office, 5353 Yellowstone Road, Room (1) What may constitute ‘‘physical or commercial information indicating that 308A, Cheyenne, WY 82009; by biological features essential to the the petitioned action may be warranted. telephone (307–772–2374); or by conservation of the species,’’ We are to base this finding on facsimile (307–772–2358). If you use a (2) Where these features are currently information provided in the petition, telecommunications device for the deaf found, and supporting information submitted with (TDD), please call the Federal (3) Whether any of these features may the petition, and information otherwise Information Relay Service (FIRS) at require special management available in our files. To the maximum 800–877–8339. considerations or protection. extent practicable, we are to make this SUPPLEMENTARY INFORMATION: In addition, we request data and finding within 90 days of our receipt of information on ‘‘specific areas outside the petition and publish our notice of Request for Information the geographical area occupied by the the finding promptly in the Federal When we make a finding that a species’’ that are ‘‘essential to the Register. petition presents substantial conservation of the species.’’ Please Our standard for substantial scientific information indicating that listing a provide specific comments and or commercial information within the species may be warranted, we are information as to what, if any, critical Code of Federal Regulations (CFR) with required to promptly review the status habitat you think we should propose for regard to a 90–day petition finding is of the species (status review). For the designation if the species is proposed ‘‘that amount of information that would status review to be complete and based for listing, and why such habitat meets lead a reasonable person to believe that on the best available scientific and the requirements of section 4 of the Act. the measure proposed in the petition commercial information, we request Please include sufficient information may be warranted’’ (50 CFR 424.14(b)). information on Pinus albicaulis from with your submission (such as the full If we find that substantial scientific or governmental agencies, Native reference for scientific journal articles or commercial information was presented, American Tribes, the scientific other publications) to allow us to verify we are required to promptly review the community, industry, and any other any scientific or commercial status of the species, which is interested parties. We seek information information you include. subsequently summarized in our 12– on: Submissions merely stating support month finding. (1) The status of the species for or opposition to the action under throughout its range in the United States consideration without providing Petition History and Canada including: supporting information, although noted, On December 9, 2008, we received a (a) Historic and current range, will not be considered in making a petition dated December 8, 2008, from including distribution patterns; determination. Section 4(b)(1)(A) of the Natural Resources Defense Council (b) Historic and current population Act directs that determinations as to (NRDC) requesting that we list Pinus levels, and current and projected trends; whether any species is an endangered or albicaulis as endangered throughout its (c) Past and ongoing conservation threatened species must be made ‘‘solely range and designate critical habitat measures for the species, its habitat, or on the basis of the best scientific and under the Act. The petition clearly both; and commercial data available.’’ identified itself as such and included (d) Distribution and extent of threats You may submit your information the requisite identification information faced by the species. concerning this status review by one of for the petitioner, as required by 50 CFR (2) The factors that are the basis for the methods listed in the ADDRESSES 424.14(a). In a January 13, 2009, letter making a listing determination for a section. If you submit information via to NRDC, we responded that we had species under section 4(a) of the http://www.regulations.gov, your entire reviewed the information presented in Endangered Species Act of 1973, as submission—including any personal the petition and determined that issuing amended (Act) (16 U.S.C. 1531 et seq.), identifying information—will be posted an emergency regulation temporarily which are: on the website. If you submit a listing the species under section 4(b)(7) (a) The present or threatened hardcopy that includes personal of the Act was not warranted. We also destruction, modification, or identifying information, you may stated that we could not address the curtailment of its habitat or range; request at the top of your document that petition promptly because of staff and (b) Overutilization for commercial, we withhold this personal identifying budget limitations. We indicated that recreational, scientific, or educational information from public review. we would process a 90–day petition purposes; However, we cannot guarantee that we finding as quickly as possible. This (c) Disease or predation; will be able to do so. We will post all finding addresses the petition. (d) The inadequacy of existing hardcopy submissions on http:// On December 23, 2009, we received regulatory mechanisms; or www.regulations.gov. NRDC’s December 11, 2009, notice of (e) Other natural or manmade factors Information and supporting intent to sue over the Service’s failure affecting its continued existence. documentation that we received and to respond to the petition to list Pinus (3) The Potential effects of climate used in preparing this finding is albicaulis and designate critical habitat. change on this species and its habitat. available for you to review at http:// The Service responded in a letter dated If, after the status review, we www.regulations.gov, or you may make January 6, 2010, indicating that determine that listing Pinus albicaulis is an appointment during normal business preceding listing actions had priority warranted, we will propose critical hours at the U.S. Fish and Wildlife but that we expected to complete the habitat (see definition in section 3(5)(A) Service, Wyoming Ecological Services 90–day finding during the 2010 fiscal of the Act), under section 4 of the Act, Field Office (see FOR FURTHER year. On February 24, 2010, the Service to the maximum extent prudent and INFORMATION CONTACT). received a formal complaint from NRDC

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for the Service’s failure to comply with to Idaho, Montana, Wyoming, and nutcracker (Tomback et al. 2001, pp. issuing a 90–day finding on the petition. Nevada. Extensive stands occur in the 121–131; Lanner 1996, p. 38), red Yellowstone ecosystem. The Wind River squirrels (Tamiasciurus spp.), and Previous Federal Actions Range in Wyoming is the eastern-most grizzly bears (Ursus arctos horribilis) On February 5, 1991, the Great Bear distribution of the species (Tomback et (Tomback et al. 2001, p. 123; Lanner Foundation of Missoula, Montana, al. 2001, p. 33; Burns and Honkala 1990, 1996, pp. 71 and 73). petitioned the Service to list Pinus p. 268). albicaulis under the Act. After The upper elevational limits of Pinus Evaluation of Information for this reviewing the petition, we found that albicaulis decrease with increasing Finding the petitioner had not presented latitude. It occurs from approximately Section 4 of the Act (16 U.S.C. 1533) substantial information indicating that 900 meters (2,950 feet) at its northern and its implementing regulations at 50 listing P. albicaulis may be warranted. limit in British Columbia up to 3,660 CFR 424 set forth the procedures for A not-substantial finding on the petition meters (12,000 feet) in the Sierra adding a species to, or removing a was made on January 13, 1994, and Nevada. Pinus albicaulis is typically species from, the Federal Lists of published in the Federal Register on found at or slightly lower than alpine Endangered and Threatened Wildlife January 27, 1994 (59 FR 3824). timberline in the upper montane zone, and Plants. A species may be Species Information where it is associated with other conifer determined to be an endangered or species that include Rocky Mountain Pinus albicaulis is a 5-needled conifer threatened species due to one or more lodgepole pine (Pinus contorta var. of the five factors described in section species classified in the Pinus latifolia), Engelmann spruce (Picea subsection Cembrae, or stone pines, 4(a)(1) of the Act: (A) The present or engelmannii), subalpine fir (Abies threatened destruction, modification, or which include five species worldwide lasiocarpa), and mountain hemlock (Tomback et al. 2001, p. 30; Lanner curtailment of its habitat or range; (B) (Tsuga mertensiana) in the Rocky overutilization for commercial, 1996, p. 26). The taxonomic Mountains, and Sierra-Cascade characterization of P. albicaulis as a recreational, scientific, or educational lodgepole pine (Pinus contorta var. purposes; (C) disease or predation; (D) species is not disputed. Characteristics murrayana) in the Sierra Nevada and of stone pines include indehiscent the inadequacy of existing regulatory Blue and Cascade Mountains in the mechanisms; or (E) other natural or cones (cones that remain essentially western portion of its range (Tomback et closed at maturity) and wingless seeds manmade factors affecting its continued al. 2001, pp. 33–34; Lanner 1999, existence. that are specialized for seed dispersal by revised 2007, p. 83). In the United In making this 90–day finding, we nutcrackers in the avian family Corvidae States, approximately 98 percent of all (Tomback et al. 2001, p. 30; Burns and P. albicaulis communities occur on evaluated whether information Honkala 1990, p. 271; Lanner 1996, p. public lands (Tomback et al. 2001, p. regarding threats to Pinus albicaulis, as 2). Pinus albicaulis seeds cannot be 12). presented in the petition and other wind-disseminated like seeds of some The interaction of Pinus albicaulis information available in our files, is other species of pines, and the species with its environment varies over its substantial, thereby indicating that the relies almost exclusively on Clark’s geographic range due to differences in petitioned action may be warranted. Our nutcracker (Nucifraga columbiana) for climate, substrate, physical evaluation of this information is seed dispersal (Lanner 1996, p. 7; environment, competitors, and seasons presented below. If we had information Schwandt 2006, p. 2). (Tomback et al. 2001, p. 52). It is a available to us that differed from the Pinus albicaulis typically occurs on stress-tolerant pine, and its hardiness information or conclusions presented in cold, windy, moist, high-elevation or allows it to grow where other conifer the petition, we describe the differences. high-latitude sites in western North species cannot (Tomback et al. 2001, p. A. The Present or Threatened America, and as a result, many stands 10). Pinus albicaulis expresses superior Destruction, Modification, or are geographically isolated. Its range hardiness in cold, dry, and windy Curtailment of its Habitat extends longitudinally between 107 and settings; therefore, it becomes 128 degrees west and latitudinally established and survives in The petitioner states the threats between 37 and 55 degrees north. The environmental conditions where other causing the present or threatened distribution of P. albicaulis includes conifer species are unable to establish destruction, modification, or coastal and Rocky Mountain ranges and compete for space and light curtailment of Pinus albicaulis’ high (Burns and Honkala 1990, p. 268) that (Tomback et al. 2001, p. 75). In the alpine habitat include changes in fire are connected by the Selkirk Mountains upper subalpine ecosystem, P. regimes due to fire suppression; the of northeastern Washington and albicaulis is considered a keystone white pine blister rust pathogen, which southeastern British Columbia. The species, or one that determines the is an introduced disease caused by the coastal distribution of P. albicaulis ability of many other species to persist fungus Cronartium ribicola; and extends from the Bulkley Mountains in in a community, thereby increasing mountain pine beetles (Dendroctonus British Columbia to the northeastern biodiversity (Tomback et al. 2001, pp. ponderosae) (NRDC 2008, p. 11). White Olympic Mountains and Cascade Range 7–8). It does this in multiple ways, pine blister rust and mountain pine of Washington and Oregon, to the Kern including regulating runoff by slowing beetles are addressed in greater detail River of the Sierra Nevada Range of east- the progression of snowmelt, reducing under Factor C, Disease or Predation. central California. Isolated stands are soil erosion by physically stabilizing The petitioner also addressed climate known from the Blue and Wallowa soils, initiating succession as a hardy change under Factor E, Other Natural or Mountains in northeastern Oregon and pioneer or as an early seral (an Manmade Factors Affecting Its the subalpine and montane zones of intermediate stage in ecological Continued Existence; however, because mountains in northeastern California, succession) species after fire or other the petitioner’s assertions regarding the south-central Oregon, and northern disturbance events, and providing seeds impacts of climate change relate to Nevada. The Rocky Mountain that are a high-energy food source for changes to the species’ habitat, we are distribution of P. albicaulis ranges from some birds and mammals (Tomback et addressing climate change under Factor northern British Columbia and Alberta al. 2001, pp. 8–11), including Clark’s A for this finding.

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Fire Suppression and Changes in Fire than can competing species (Tomback et susceptible to stand replacing (high Regimes al. 2001, p. 13). intensity) fires and to other damaging Fire suppression, however, limits the Information Provided in the Petition agents like white pine blister rust or burned areas available for nutcrackers to The petitioner asserts that where fire mountain pine beetles (Schwandt 2006, cache Pinus albicaulis seeds, thereby suppression policies are in place, fire p. 5). This may be the case in the reducing areas for the species to suppression has reduced fire frequency northwestern United States (Tomback et regenerate (Tomback et al. 2001, p. 237), in subalpine communities, resulting in al., p. 82), but we lack data to analyze resulting in range contraction and the extent of the decline throughout the the successional replacement of Pinus potentially the species’ decline. albicaulis by more shade-tolerant species’ entire range. Therefore, we find Information in our files indicates fire that the petition and information in our species in many areas. The petitioner suppression during the last 60 to 80 indicates that once P. albicaulis files presents substantial information years may have limited natural that P. albicaulis habitat is being communities become established, they regeneration and subsequently are perpetuated by low-intensity fires reduced or curtailed by fire suppression contributed to conversion of some P. activities. We will seek additional that kill the competing understory fir albicaulis stands to shade-tolerant and spruce. Thus, the lack of fire information regarding the potential species (Arno 2001, as cited in effects of fire suppression and fire provides a competitive advantage to Schwandt 2006, p. 4). Prior to that other tree species, resulting in the suppression policies during the status period, the average P. albicaulis stand review process. eventual loss of P. albicaulis (NRDC burned every 50 to 300 years. While 2008, p. 13). only small amounts of P. albicaulis sites Climate Change Evaluation of Information Provided in have burned more recently (less than 1 Information Provided in the Petition the Petition percent within the last 25 years; Schwandt 2006, p. 4), the 60- to 80–year The petitioner asserts that climate The petitioner indicates that the long- fire suppression period is not outside change is one of the most significant term consequence of fire suppression in the range of the 50- to 300–year average threats to Pinus albicaulis. The the Pinus albicaulis ecosystem is burn interval, suggesting that P. petitioner cites a variety of sources successional replacement by other albicaulis systems may not be outside supporting the claim that climate conifer species, resulting in conversion the historic range of fire frequency. change will result in a shifting in the to a more shade-tolerant forest type. The Information in our files (Tomback et ranges of vegetation northward, and petitioner cites decreases in P. al. 2001, pp. 237) indicates that upward in elevation (NRDC 2008, p. 29), albicaulis relating to advancing wildland fire policies of natural resulting in a reduction of P. albicaulis succession and subsequent increases in resource management agencies have range and population. The petition also other conifer species at several sites in been revised in the recent past, allowing cites evidence of climate change- Montana, Idaho, Washington, and for greater levels of prescribed fire induced range shifts in an associated Oregon (NRDC 2008, p. 13). The fire across large areas of forest with Pinus pathogen and pest, white pine blister regime subsequently changes from a albicaulis communities. However, while rust and mountain pine beetle. The low-to-moderate severity regime typical wildland fire suppression policies are petition discusses how climate change of P. albicaulis communities, to a stand- being modified to address potential is expected to facilitate the expansion of replacing, crown fire regime (NRDC concerns of fire suppression on this white pine blister rust and mountain 2008, p. 13). The petitioner does note species, fire suppression and pine beetles (further discussed under that high-intensity, stand-replacing fires subsequent succession by other conifer Factor C. Disease or Predation). The in many P. albicaulis seral communities species have been responsible for many petitioner also cites literature indicating have occurred historically (NRDC 2008, stand conversions. climate change may result in changes to p. 13). Fire has been an important landscape fire patterns in western North America disturbance factor in the Cascade Range (NRDC 2008, p. 33). Evaluation of Information Available in of Washington and Oregon, and the Service Files Evaluation of Information Provided in Rocky Mountains, for the past 10,000 the Petition Information in our files indicates that years (Agee 1993, p. 54). The origin of stand-replacing fires (ones in which fire suppression policies may be traced To support their assertion of Pinus Pinus albicaulis trees are killed) can to about 1910 when the ‘‘Big Burn’’ of albicaulis decline resulting from climate provide a successional advantage to the northern Idaho and northwestern change, the petitioner cites model species. Although fire may accelerate Montana consumed approximately 1.2 projections from the International Panel the loss of P. albicaulis at a local level, million hectares (2.8 million acres). This on Climate Change (IPCC) indicating fire is necessary to perpetuate the fire generated national interest in that human-induced changes to natural species’ communities at a landscape protecting forests from fire, and thus led greenhouse gases may result in warming scale (Tomback et al. 2001, p. 226). to the development of fire suppression of 1.1 °Celsius (°C) (2 °Fahrenheit (°F)) Stand-replacing fire disrupts the policies (Agee 1993, p. 59). Suppression to 6.4 °C (12 °F) in the 21st century successional process and creates of fire has resulted in shifts in the (NRDC 2008, p. 28). These projections openings for repeated establishment of composition of subalpine forests from are consistent with our review of IPCC early colonizers like P. albicaulis shade-intolerant species like P. models for other listing actions (e.g., 75 (Tomback et al. 2001, p. 13). albicaulis to more shade-tolerant FR 13910, March 23, 2010). The Nutcrackers disperse P. albicaulis seeds species such as Abies lasiocarpa, Picea petitioner also cites several other farther and faster than wind can engelmannii, or Tsuga mertensiana, models under different scenarios disperse the seeds of competing tree thereby increasing the fuel load (Shoal predicting up to a 98 percent decline in species, and use openings created by et. al., 2008, p. 19; Schwandt 2006, p. P. albicaulis by the end of the century stand-replacing fires as seed-caching 5), reducing the opportunity for P. (NRDC 2008, p. 29). Additional sites (Tomback et al. 2001, pp. 8, 13, albicaulis regeneration, and adding literature is cited indicating that the and 226). Therefore, P. albicaulis can stress to the remaining trees. The result predicted rate of climate change may establish more quickly in burned areas is that remaining trees are more threaten species incapable of migrating

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to more suitable habitats or unable to suitable growing sites (Bartlein et al. albicaulis in the United States and migrate due to human-caused landscape 1997, p. 788), and an increase in both Canada. fragmentation. As a high-elevation, mountain pine beetle (Logan and Powell Evaluation of Information Provided in long-lived species with limited 2001, pp. 165–170; Williams and the Petition mobility, P. albicaulis will be Liebhold 2002, p. 95 ) and white pine particularly vulnerable to climate blister rust (Koteen 2002, pp. 352–364) White Pine Blister Rust change (NRDC 2008, p. 28). The outbreaks. However, because The petitioner indicates that Pinus information in our files, which includes environmental conditions in P. albicaulis and all 5-needled pines are Tomback et al. (2001, pp. 58–59) and albicaulis communities are highly highly susceptible to white pine blister Schwandt (2006, p. 6), supports this variable and the magnitudes of potential rust (NRDC 2008, p. 14). Each year an conclusion; however, these authors changes are unknown, effects of climate infected tree lives, the rust continues to caution that predicting the overall change are uncertain (Kendall and produce fungal spores, thereby effects of climate change is difficult due Keane 2001, p. 236). Although the perpetuating the disease. Where the to the number of factors involved and climate change information contains fungus’ alternate host (typically in the the fact that the magnitudes of the likely high variability as to the predicted genus Ribes (currants or gooseberries)) changes are unknown (e.g., rangewide magnitude of effects, both our files and is abundant and when summer weather or local). the petition indicate that there are is conducive to multiple cycles of fungal The petitioner asserts that climate effects that warrant further examination. spore production, the result is a ‘‘wave’’ change will alter fire patterns in western of new rust infections that spread into North America (NRDC 2008, p. 33). Summary of Factor A new areas or intensify in already Changes in fire pattern include an In summary, we find that the infected stands. The frequency of wave increased fire season duration information provided in the petition, as years depends on various factors, associated with increased spring and well as other information in our files, including elevation, geographical summer temperatures and associated presents substantial scientific or early spring snow melt, increased time region, topography, wind patterns, commercial information indicating that temperature, and humidity. White pine to extinguish fires, and increased area the petitioned action may be warranted burned. The petitioner notes that one of blister rust can kill cone-bearing due to present or threatened branches years before the tree actually the complications with identifying destruction, modification, or climate change as the definitive cause of dies. While large P. albicaulis trees may curtailment of its habitat from fire survive white pine blister rust infection increased fire frequency and intensity is suppression, subsequent alterations of the confounding effect of forest for a long time, the rust can kill small fire regimes, and climate change. We trees within a few years (NRDC 2008, management and fire suppression will review the possible effects of these (NRDC 2008, p. 34). pp. 16–17). The information in our files threats to Pinus albicaulis more corroborates the petitioner’s information Evaluation of Information Available in thoroughly in our 12–month status (Tomback et al. 2001, pp. 193–214). Service Files review. The petitioner cites surveys showing Literature in our files supports the B. Overutilization for Commercial, white pine blister rust infection rates of assertion that increased fire frequency Recreational, Scientific, or Educational 83 percent in the Bob Marshall due to climate change is likely (Agee Purposes Wilderness Complex in Montana to 100 percent of trees in other unidentified 1993, p. 405). The rationale for this The petitioner did not present claim is that as vegetation communities locations within this geographic area. information, nor do we have Overall infection rates in the drier, migrate north, the high frequency fire information in our files, suggesting that regimes of these forest types will change southern portion of the Rocky overutilization is threatening Pinus the fire frequency of a given area (Agee Mountains have increased from 10 to 20 albicaulis. However, we will further 1993, p. 405). The intensity of future percent during the last decade; however, investigate whether overutilization for fires in a changing climate is less the petitioner cites a 2004 study that commercial, recreational, scientific, or certain; however, we do support the found white pine blister rust on 71 educational purposes is a potential contention that changes in forest percent of transects, indicating the threat in our 12–month status review of composition will occur, which will disease is now more widespread and P. albicaulis. increase fuel loads and lead to greater expanding (NRDC 2008, p. 18). In the stress in Pinus albicaulis forests. In turn, C. Disease or Predation coastal distribution of the species, the we conclude that this leads to a higher petitioner cites several studies Information Provided in the Petition proportion of dead trees in stands, indicating variable infection incidence, therefore making them more susceptible The petitioner indicates that Pinus ranging from 0 to 100 percent, with the to fire (Agee 1993, p. 405; Agee pers. albicaulis is currently being devastated highest Pinus albicaulis mortality from comm., 2010). by the combination of white pine blister white pine blister rust occurring in Mt. Information in our files provides rust and an epidemic outbreak of Hood National Forest (NRDC 2008, p. numerous climate change model mountain pine beetle, a native species. 19). Similarly, in British Columbia and predictions describing future Pinus The petitioner cites literature showing Alberta, infection rates vary from 0 to albicaulis scenarios (Tomback et al. temporal and spatial changes in the 100 percent depending on location and 2001, pp. 57–59). Climate change is distribution of white pine blister rust other variables, with one study showing predicted to affect several aspects of the infections and mountain pine beetle a P. albicaulis mortality increase from ecology of whitebark pine, including an infestations and describes the 26 to 61 percent in 7 years (NRDC 2008, increase in the length of the growing synergistic effects of white pine blister p. 19). The petitioner claims that the season (Cayan et al. 2001, p. 410–411), rust and mountain beetle to P. albicaulis incidence of the disease is steadily an increase in fire frequency and (NRDC 2008, pp. 14–28). The petitioner increasing in all areas sampled (NRDC severity (McKenzie et al. 2004, p. 893; summarizes literature on P. albicaulis 2008, p. 20). Westerling et al. 2006, pp. 942–943), declines from white pine blister rust in The petitioner cites literature spatial shifts in the distribution of areas throughout the range of P. indicating white pine blister rust is

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currently present at the northern range Mountain Pine Beetle recent data indicate that pine beetle limits of Pinus albicaulis and at treeline, Evaluation of Information Provided in outbreaks are rapidly expanding in which may inhibit northerly and the Petition Canada. The petitioner asserts that altitudinal migration of the species outbreak severity has been aided by a (NRDC 2008, p. 30), a necessary The petitioner states that Pinus series of warm winters and extensive albicaulis forests are suffering heavy adaptation to climate change. The availability of susceptible mature pine mortality from mountain pine beetles, petitioner indicates that changes in forests (NRDC 2008, p. 27). frequency or persistence of rainfall which usually colonize larger, mature The petitioner indicates that warming patterns from climate change may also trees where inner bark is thick enough temperatures in recent years have contribute to favorable white pine to support beetle larvae. In addition, the blister rust conditions, resulting in beetles carry a blue-stain fungus provided favorable conditions for disease proliferation and intensification (Grosmannia clavigera) on their mouth increasing widespread mountain pine parts. The fungi interrupt the flow of beetle outbreaks. The petitioner cites in various locations. The petitioner ° ° states that these conditions, combined resins that would ordinarily pitch out or literature indicating that a 2 F (1.11 C) with the buildup of white pine blister kill the beetles, thus promoting beetle temperature increase is the amount rust over the past decades, will likely invasions and reducing a tree’s defenses predicted to shift the mountain pine result in larger transmission events in to beetle attack. The fungi also interrupt beetle’s life cycle from semivoltine the future (NRDC 2008, p. 31). water flow to the tree’s crown and (more than one year required to produce within approximately 2 weeks of a brood of offspring) to univoltine Evaluation of Information Available in colonization, the tree’s phloem layer is (produces one brood of offspring per Service Files damaged enough to cut off water and year) and allow for synchronous nutrient flows and the tree starves to Information in our files indicates that emergence (from overlapping death. This impact is visible by the in the Rocky Mountains, the highest generations) – conditions that are presence of reddened needles, often conducive to massive beetle outbreaks mortality from white pine blister rust encompassing entire stands of trees (NRDC 2008, p. 32). Further, while generally occurs in northwestern (NRDC 2008, p. 23). The petitioner cites mountain pine beetles are a native Montana, northern Idaho, and the one study indicating that historically, southern Canadian Rockies, where cool, conditions in high-elevation P. species in western North American moist climatic conditions are more albicaulis habitat prevented sustained forests, they have been rare in cold, favorable to white pine blister rust mountain pine beetle outbreaks, but high-elevation areas; however, growth (Tomback et al. 2001, p. 15). today, climate change appears to be outbreaks have occurred earlier than Blister rust infections attack seedlings allowing outbreak populations to predicted in climate change models and and mature trees, causing damage to expand into these previously are expanding into previously upper canopy and cone-bearing inhospitable areas (NRDC 2008, p. 22). unoccupied areas (NRDC 2008, p. 33). branches, or death to branches or the The petitioner summarizes literature Evaluation of Information Available in entire tree (Tomback et al. 2001, pp. 15, on Pinus albicaulis declines from Service Files 116, 195); however, some trees may mountain pine beetle outbreaks in the persist, and long-term survival depends Yellowstone Ecosystem; in the Selkirk Information in our files (Tomback et on local environmental conditions and Mountains of northern Idaho, al. 2001, pp. 14 and 299) indicates that specific tree health (Tomback et al. Washington, and Oregon; and in British large-scale outbreaks of mountain pine 2001, p. 195). Survey information in our Columbia and Alberta, Canada (NRDC files indicates that many stands have beetle have caused widespread Pinus 2008, pp. 24–27). In the Yellowstone albicaulis mortality. Mountain pine been infected with white pine blister Ecosystem, the petitioner cites survey beetle infestations killed many P. rust, but we do not know how much data within the last 3 years indicating P. albicaulis trees in the Selway-Bitterroot regeneration is occurring in these areas; albicaulis mortality from mountain pine Wilderness in the late 1870s, 1930s, and however, most remaining high-elevation beetles was 80 percent and 74 percent P. albicaulis stands in the U.S. of trees greater than 5 inches diameter late 1980s. Further, mountain pine Intermountain West that are climax at breast height (DBH) on plots in beetles have expanded throughout the communities have little regeneration Yellowstone National Park and the range of P. albicaulis, and because (Tomback et al. 2001, p. 228). White Gallatin National Forest, respectively beetles preferentially attack larger cone- pine blister rust has spread throughout (NRDC 2008, pp. 24–27). In northern bearing trees, there has been a decrease the range of P. albicaulis since Idaho’s Selkirk Mountains, a loss of 45 in P. albicaulis seed production. Our introduction into the United States a to 82 percent of P. albicaulis trees information also states that absence of century ago, and a summary of white greater than 5 inches DBH, primarily fire has resulted in P. albicaulis and pine blister rust analyses suggests that due to mountain pine beetle, was Abies lasiocarpa forests increasing in blister rust will continue to cause documented in 2000. In Washington age, thereby increasing their damage to P. albicaulis in the central and Oregon, overall mountain pine susceptibility to mountain pine beetle Rocky Mountains (Tomback et al. 2001, beetle incidence ranged from 0 to 34 infestations. Trees infected by white pp. 197 – 211). percent and mortality from both pine blister rust are stressed and appear Based on information in our files mountain pine beetle and white pine to be more attractive to mountain pine (Tomback et al. 2001, pp. 15–16, 193– blister rust averaged 33 percent. In beetles or more vulnerable to attack 214, 221, and 234–237), the geographic British Columbia and Alberta, the (Tomback et al. 2001, p. 225). As a extent of white pine blister rust appears petitioner cites literature from 2008, result, P. albicaulis has declined to have changed little during the past 30 stating that given the extent of the throughout major portions of its range years; however, the incidence and current mountain pine beetle outbreak during the past 50 years from several intensity of infections have increased in lower elevation forests, a massive and factors, including white pine blister rust sharply, and it appears unlikely that any imminent Pinus albicaulis decline is and mountain pine beetle. Therefore, Pinus albicaulis stand is safe from expected (NRDC 2008, p. 27). Losses by the information in our files corroborates damage by white pine blister rust. 2002 were considered minor, but more the petitioner’s information.

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Summary of Factor C to its ‘‘blue-list,’’ which lists special have determined that the petition We find that the information provided conservation concerns, in this case due presents substantial scientific or in the petition, as well as other to a ‘‘severe negative long-term trend commercial information indicating that information in our files, presents expected from mountain pine beetle listing Pinus albicaulis throughout all or substantial scientific or commercial infections, white pine blister rust a significant portion of its range may be information indicating that the epidemics, climatic warming trends, warranted. This finding is based on petitioned action may be warranted due and successional replacement’’ (NRDC substantial information provided by the to disease or predation, specifically 2008, pp. 36–37). petitioners and in our files for Factor A, white pine blister rust and mountain Factor C, and Factor D. Evaluation of Information Available in Because we have found that the pine beetle. We will review the possible Service Files effects of these threats to Pinus petition presents substantial albicaulis more thoroughly in our 12– However, on December 18, 2009 (after information indicating that listing Pinus month status review. the NRDC petition was submitted and albicaulis may be warranted, we are received) (74 FR 67059), the U.S. Forest initiating a status review to determine D. The Inadequacy of Existing Service reinstated their 2000 Planning whether listing P. albicaulis under the Regulatory Mechanisms Rule, which does include standards (a Act is warranted. As part of our status Information Provided in the Petition required action in a land management review we will examine available plan) for timber management. Further, information on the threats to the species The petitioner provides information publications from the Forest Service in and make a final determination in a 12– indicating that there are few, if any, our files (Lorenz et al. 2008; Shoal et al. month finding on whether the species is regulatory mechanisms in place to 2008; Aubry et al. 2008) advocate warranted for listing as endangered or protect Pinus albicaulis from the threats actions to reduce threats from white threatened under the Act. To ensure that of climate change, white pine blister pine blister rust and mountain pine the status review is complete, we are rust, and mountain pine beetles, or the beetles to P. albicaulis. These strategies, requesting scientific and commercial combination of effects from some or all however, are relatively recent, are information regarding P. albicaulis (as of these threats. The petitioner also specific to the Pacific Northwest, and described above under the Information asserts there are no mechanisms to may be inadequate to reduce threats Requested section). The petition also effectively control greenhouse gas throughout the entire range of the taxon. asks us to designate critical habitat for emissions in the United States and Additionally, the need for funding to this species. If we determine in our 12– Canada (NRDC 2008, pp. 34–37). implement the actions may be month finding that listing P. ablicaulis Evaluation of Information Provided in inadequate to reduce threats rangewide. is warranted, we will address the the Petition While there is uncertainty about designation of critical habitat in the whether or not existing regulatory subsequent proposed listing rule, if we The petitioner states that existing mechanisms are adequate for protecting conclude critical habitat is prudent and forest management law in the United P. albicaulis, the petitioner presents determinable. States, in particular the Healthy Forest substantial information for further The ‘‘substantial information’’ Restoration Act of 2003 (916 U.S.C. consideration of this factor. standard for a 90–day finding differs 6501 et seq.), provides few regulatory from the Act’s ‘‘best scientific and standards or enforceable mandates to Summary of Factor D commercial data’’ standard that applies conserve Pinus albicaulis specifically In summary, we find that the to a status review to determine whether and forest diversity in general. The information provided in the petition, as a petitioned action is warranted. A 90– petitioner asserts there are only well as other information in our files, day finding does not constitute a status ineffective mechanisms in place to presents substantial scientific or review under the Act. In a 12–month control climate change pollution and commercial information indicating that finding, we will determine whether a there are inadequate mandates to the petitioned action may be warranted petitioned action is warranted after we conserve P. albicaulis. The petitioner due to the inadequacy of existing have completed a thorough status also states that the Forest Service has regulatory mechanisms addressing review of the species, which is not issued any directives mandating or threats specifically from climate change, conducted following a substantial 90– prescribing P. albicaulis conservation white pine blister rust, mountain pine day finding. Because the Act’s standards (NRDC 2008, p. 35). The petitioner notes beetle, fire suppression, and forest for 90–day and 12–month petition the Forest Service has put some effort management. We will review the findings are different, as described into conserving P. albicaulis by possible effects of these threats on P. above, a substantial 90–day finding does assessing it rangewide and developing a albicaulis more thoroughly in our 12– not mean that the 12–month finding conservation and restoration plan. month status review. will result in a warranted finding. However, the petitioner asserts that to date, efforts have been haphazard and E. Other Natural or Manmade Factors References Cited uncoordinated between regions and lack Affecting its Continued Existence A complete list of references cited is funding for successful implementation The petitioner discussed the threat of available on the Internet at http:// (NRDC 2008, p. 36). The petitioner notes climate change under this factor; www.regulations.gov and upon request the Forest Service has acknowledged however, we have addressed it under from the Wyoming Ecological Services that climate change is beyond the Factor A. We will investigate whether Field Office (see FOR FURTHER capacity of the agency itself to address there are any other natural or manmade INFORMATION CONTACT). effectively (NRDC 2008, p. 36). factors that are potential threats to Pinus Authors The petitioner asserts that Canadian albicaulis when we address Factor E in laws and regulations also lack adequate our 12–month status review. The primary authors of this notice are protections for Pinus albicaulis and its the staff members of the Wyoming habitat. However, the petitioner also Finding Ecological Services Field Office (see cites the British Columbia Ministry of On the basis of our determination FOR FURTHER INFORMATION Environment’s addition of P. albicaulis under section 4(b)(3)(A) of the Act, we CONTACT).

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Authority: The authority for this action is (TDD) may call the Federal Information Amargosa toad as endangered. At the the Endangered Species Act of 1973, as Relay Service (FIRS) at 800–877–8339. time we received the petition, the amended (16 U.S.C. 1531 et seq.). SUPPLEMENTARY INFORMATION: Amargosa toad was a category 1 candidate species. On March 23, 1995, Dated:July 9, 2010 Background we announced our 90–day finding that Wendi Weber, Section 4(b)(3)(B) of the Endangered the petitioned action may be warranted Acting Director, U.S. Fish and Wildlife Species Act of 1973, as amended (Act) and initiated a status review of the Service. (16 U.S.C. 1531 et seq.) requires that, for species (60 FR 15280). On July 26, 1995, any petition to revise the Federal Lists the Service recommended removal of [FR Doc. 2010–17650 Filed 7–19– 10; 8:45 am] of Endangered and Threatened Species the Amargosa toad from category 1 BILLING CODE S that contains substantial scientific or candidate status based on information commercial information that listing the we obtained during the status review. species may be warranted, we make a On February 28, 1996 (61 FR 7596), we DEPARTMENT OF THE INTERIOR finding within 12 months of the date of removed the Amargosa toad from receipt of the petition. In this finding, Fish and Wildlife Service candidate status. On March 1, 1996, we we will determine that the petitioned announced our 12–month finding that action is: (1) Not warranted, (2) 50 CFR Part 17 listing the Amargosa toad as endangered warranted, or (3) warranted, but the or threatened was not warranted (61 FR [FWS–R8–ES–2009–0047] immediate proposal of a regulation 8018). [92210–1111–0000 B2] implementing the petitioned action is On February 27, 2008, we received a precluded by other pending proposals to petition from the Center for Biological Endangered and Threatened Wildlife determine whether species are Diversity (CBD) and Public Employees and Plants; 12-Month Finding on a threatened or endangered, and for Environmental Responsibility Petition to List the Amargosa Toad as expeditious progress is being made to (PEER), hereinafter referred to as Threatened or Endangered add or remove qualified species from ‘‘petitioners,’’ requesting that the AGENCY: Fish and Wildlife Service, the Federal Lists of Endangered and Amargosa toad be listed as endangered Interior. Threatened Species. Section 4(b)(3)(C) or threatened and that critical habitat be of the Act requires that we treat a designated under the Act. The petition ACTION: Notice of 12–month petition petition for which the requested action clearly identified itself as such and finding. is found to be warranted but precluded included the requisite identification SUMMARY: We, the U.S. Fish and as though resubmitted on the date of information for the petitioners, as Wildlife Service (Service), announce a such finding, that is, requiring a required in 50 CFR 424.14(a). In a letter 12–month finding on a petition to list subsequent finding to be made within to the petitioners dated May 1, 2008, we the Amargosa toad (Anaxyrus nelsoni) 12 months. We must publish these 12– responded that we had reviewed the as threatened or endangered and to month findings in the Federal Register. petition and found that an emergency listing was not warranted and we designate critical habitat under the Previous Federal Actions Endangered Species Act of 1973, as anticipated making an initial finding on amended. After review of all available On August 2, 1977, the Service the petition during Fiscal Year 2008. On scientific and commercial information, included the Amargosa toad on a list of March 11, 2009, we received a 60–day we find that listing the Amargosa toad amphibians that we were reviewing to notice of intent to sue from CBD alleging is not warranted at this time. However, determine whether those species should violations of the Act because we did not we ask the public to submit to us any be proposed for listing as endangered or publish our 12–month finding within 12 new information that becomes available threatened (42 FR 39121). Subsequently, months of receiving the petition. On concerning the threats to the Amargosa we assigned the Amargosa toad as a September 10, 2009, we published a 90– category 1 candidate species under the toad or its habitat at any time. day finding stating the petition Act in 1982 (47 FR 58454, December 30, contained substantial information to DATES: The finding announced in this 1982) and 1994 (59 FR 58982, November indicate the petitioned action may be document was made on July 20, 2010. 15, 1994); and designated it as a warranted, and we announced the ADDRESSES: This finding is available on category 2 candidate in 1985 (50 FR initiation of a status review of the the Internet at http:// 37958, September 18, 1985); 1989 (54 species (74 FR 46551). www.regulations.gov at Docket Number FR 554, January 6, 1989); and 1991 (56 On April 26, 2010, CBD amended its FWS–R8–ES–2009–0047. Supporting FR 58804, November 21, 1991). A Complaint in Center for Biological documentation we used in preparing category 1 species was a taxon for which Diversity v. Salazar, U.S. Fish and this finding is available for public the Service has substantial information Wildlife Service, Case No.: 1:10–cv– inspection, by appointment, during on hand to support the biological 230–PLF (D.D.C.), adding an allegation normal business hours at the U.S. Fish appropriateness of proposing to list as that the Service failed to issue its 12– and Wildlife Service, Nevada Fish and endangered or threatened under the Act. month petition finding on the Amargosa Wildlife Office, 4701 N. Torrey Pines A category 2 species was a taxon for toad within the mandatory statutory Dr., Las Vegas, NV. Please submit any which the Service has information timeframe. This notice constitutes the new information, materials, comments, indicating that proposing to list the 12–month finding on the February 27, or questions concerning this finding to species as endangered or threatened is 2008, petition to list the Amargosa toad the above address. possibly appropriate, but that as threatened or endangered with FOR FURTHER INFORMATION CONTACT: information is not conclusive data on critical habitat. Robert D. Williams, State Supervisor, biological vulnerability or threats that Nevada Fish and Wildlife Office; by would support a proposed listing. Species Information mail (see ADDRESSES); by telephone at On September 21, 1994, the Service In addition to the information 775–861–6300; or by facsimile at 775– received a petition from the Biodiversity provided below, refer to the 90–day 861–6301mailto:. Persons who use a Legal Foundation of Boulder, Colorado, finding (74 FR 46551) for additional telecommunications device for the deaf requesting emergency listing of the information on the Amargosa toad.

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Taxonomy and Species Description Current and Historic Ranges not present (NDOW 2000, p. A–2). Amargosa toads are endemic to the Toads can be abundant in irrigated and The Amargosa toad is a member of the disturbed areas. family Bufonidae, which includes North Amargosa River drainage in southwestern Nevada (Goebel et al. The breeding season for the Amargosa American true toads. Stejneger (1893, 2009, p. 210). Available historic toad begins in mid-February and may cited in Lannoo 2005, p. 427) described accounts (Maciolek 1983a, p. 11) do not extend into July, during which time the Amargosa toad as Bufo boreas provide any specific indication of wider adults congregate at breeding sites. A nelsoni, a subspecies of the western toad distribution. Toads that occur in female toad may produce over 6,000 (Bufo boreas). Savage (1959, pp. 251– downstream reaches of the Amargosa eggs in a single reproduction event 254) was the first to refer to the River corridor (e.g., Ash Meadows area) (Altig 1987, p. 277; Heinrich 1995, p. 2). Amargosa toad as Bufo nelsoni in anecdotally exhibit some taxonomic Amargosa toad tadpoles require accordance with the rules of the similarities; however, they have not relatively open water that persists long International Code of Zoological been identified as Amargosa toads. The enough for the completion of Nomenclature. Feder (1997, cited in area occupied by the Amargosa toad is metamorphosis and development into Lannoo 2005, p. 428) diagnosed Bufo isolated, with no known or probable toadlets, which occur over nelsoni by allozymic data and connections to members of the western approximately 30 days. Predation and concluded that the Amargosa toad toad complex (NDOW 2000, p. A–1). early desiccation of wetlands needed for warrants species status. Mitochondrial The nearest known record for a western breeding may destroy an entire breeding DNA analyses by Goebel (1996, cited in toad is approximately 35 linear miles effort. Although Amargosa toads Lannoo 2005, p. 429) are consistent with (mi) (56 kilometers (km)) away at typically live 4 to 5 years, individual species status for the Amargosa toad. In Furnace Creek in Death Valley National toads are known to live up to 17 years 2002, Bufo nelsoni was listed as a full Park, California, where an introduced based on data from NDOW’s population species in the Integrated Taxonomic population of western toad occurs. The monitoring program (Hobbs 2010, p. 1.). Information System database compiled historical and current range of the Population Status and Trends by the Smithsonian Institution, with the Amargosa toad occurs within Oasis highest credibility rating by their Valley, along an approximately 10-mi In 1998, NDOW initiated a long-term Taxonomic Working Group (Lannoo (16–km) stretch of the Amargosa River population monitoring program for the 2005, p. 427). Frost et al. (2006) moved and nearby spring systems, roughly Amargosa toad using mark-recapture North American toads from Bufo to between the towns of Springdale and methods at 11 sites of the 18 known Anaxyrus (Tschudi 1845, cited in Frost Beatty. Oasis Valley occurs along U.S. sites occupied by toads. The 11 sites are et al. 2006, p. 363), which was accepted Highway 95 between Bullfrog Hills and grouped into 4 spatial areas described in 2008 by the Committee on Standard the Nevada Test Site. below (see distribution map available at In 2007, the Amargosa Toad Working http://www.fws.gov/nevada/nv_species/ and Scientific Names (Committee; _ Crother 2008, pp. 2–4). The Committee, Group (ATWG) prepared a map of all amargosa toad.html). The monitoring sanctioned by the Society for the Study known and potential habitat for the program was identified in the Amargosa of Amphibians and Reptiles, the species, including potential movement Toad Conservation Agreement and American Society of Ichthyologists and corridors, and posted the map on the Strategy (CAS) as an conservation action Herpetologists, and The Herpetologists’ Internet at: http://www.fws.gov/nevada/ (NDOW 2000, p. A–11) and involves League, is tasked to develop standard nv_species/amargosa_toad.html. The capture and marking (with implanted English names and publish a list of the total amount of known and potential tags) of all juvenile to adult age-class current scientific names of North Amargosa toad habitat delineated by the Amargosa toads found that are 2 in. (50 mm) or greater in length. The NDOW American herpetofauna. This is ATWG is approximately 8,440 acres (ac) maintains a database on Amargosa toad considered the official list for those (3,416 hectares (ha)). population monitoring data as societies. Life History and Ecology prescribed in the CAS (NDOW 2000, pp. Adult male Amargosa toads typically Amargosa toad habitat requirements A–12 and 13). As of November 2009, a have a snout-vent length of 1.6 to 2.7 for breeding and population recruitment total of 6,739 Amargosa toads had been inches (in.) (42 to 68 millimeters (mm)); include the presence of open, ponded, captured and tagged. In 2009, captures for females it is typically 1.8 to 3.5 in. or flowing water, with riparian increased 77 percent over 2008, with a (46 to 89 mm) (Nevada Department of vegetative cover in an early-to- total of 768 toads captured and tagged, Wildlife (NDOW) 2000, p. A–2). The intermediate successional stage to form 519 of which were captured for the first dorsal body of the Amargosa toad has a partial canopy for shade with minimal time. The 2009 population estimate for three paired rows of wart-like skin emergent vegetation at the water’s monitored sites is 1,623, which is 13.6 projections called tubercles. Their backs edges. Immature (metamorphs or percent less than the average of 1,826 have black speckling or asymmetrical toadlets) and adult Amargosa toads are for the period 1998 through 2008 (Hobbs spots. Background coloration ranges dependent upon the areas described 2009, p. 1). Unsuitable weather from almost black to brownish or pale above, as well as areas they can use for conditions during the 2007 and 2008 yellow-brown or olive, and may vary shelter, including burrows, debris piles, surveys may have resulted in lower than considerably among individual toads in spaces under logs or rocks, and areas of average toad activity (Figure 1; Hobbs the same population. A light mid-dorsal dense vegetation (NDOW 2000, p. A–2). 2009, p. 2). Habitat improvements and stripe occurs along the backbone. The Adult toads also require adjacent disturbance of aquatic systems at large, wart-like parotid glands located vegetated uplands for nocturnal monitored sites have resulted in behind the eye are tawny to olive. foraging. Dense vegetation and increases in toad captures and Underneath, the Amargosa toad is advanced successional stages of riparian reproduction (Hobbs 2009, pp. 2–4; whitish or pale olive, with scattered vegetation appear to limit habitat Saving Toads thru Off-Road Racing, black spots that merge above the legs to suitability and occupancy by all life Ranching, and Mining in Oasis Valley form the appearance of ‘‘pants.’’ stages, particularly where open water is (STORM–OV) 2009b, p. 1).

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Simandle (2006, p. 42) determined garden area and 200-square foot (ft2) Trespass Seep is a low-flow spring that Amargosa toads meet the criteria (18.6-square meter (m2)) pond; a spring site without any substantial ponded area and expectations of metapopulations. and associated pond (Crystal Spring); that has never supported many toads. This means that occupied habitats, and two seeps named Trespass and During surveys, the highest number of unoccupied but suitable habitats, and Wild Burro. Crystal Spring and the two toads captured at Trespass Seep was 12 intervening habitat that may be seeps occur on lands administered by in 1998. In August 2009, improvements occasionally used during infrequent the BLM. were made to Trespass Seep by a private migration events should all be The Harlan-Keal pond was restored in landowner that resulted in a substantial considered as conservation priorities. 2003–2004, and has early successional increase in ponded surface water and Metapopulations can be expected to habitat where toad reproduction occurs toad habitat. Within a few weeks after have local extirpations in some patches, and may serve as a source population. improvements to the seep, Amargosa resulting in the existence of empty but The 2009 population estimate for the tadpoles were observed at the site suitable habitat that subsequently may Harlan-Keal Group was 156, which was (STORM–OV 2009b, p. 1). Wild Burro seep consists of a low- be recolonized in the future (Simandle 22 percent below the 12–year average flow spring, an excavation with 2006, p. 8). Events such as floods may for this group of sites (Hobbs 2009, p. groundwater exposed, and wet meadow. simultaneously destroy existing 2). Because of its elevation, ambient air In 1998, 12 ac (4.9 ha) surrounding the occupied habitat, create new suitable temperatures at this site are always seep was fenced by BLM to exclude habitat, and facilitate infrequent cooler than at other sites. This will wild burros that overused the site. movement among different sites. Habitat likely affect the number of toads Currently this site provides little habitat conditions and the number of toads that captured during surveys. occur at specific sites and for the Amargosa toad, with only a few metapopulations change from year to The Crystal Spring site consists of a toads documented at this site each year. year, thus requiring site-specific spring, pond, and outflow on BLM land. In November 2009, STORM–OV management strategies. In 1995, a wild burro exclosure was submitted a plan to the BLM to create constructed around Crystal Spring to and enhance toad habitat at this site Population Groups reduce trampling and overuse of the (STORM–OV, 2009c, pp. 1–6). STORM– The 11 monitored sites occupied by spring. This caused an increase in OV is a local nonprofit organization the Amargosa toad occur in three emergent vegetation that has reduced representing the off-road, ranching, and groups: Harlan-Keal, Amargosa River, the extent of open water, which in turn mining interests, dedicated to Amargosa and Spicer/Mullin/Torrance; and resulted in few toads remaining at the toad conservation projects. Angel’s, a single site outside the three site. Historically, this site was Amargosa River Group groups. The sites associated with each maintained by ranchers and other group are discussed below. private efforts which removed sediment The Amargosa River consists of three and excess vegetation that maintained monitored segments characterized by Harlan-Keal Group open water in the pond. Planning is riparian vegetation interspersed with The Harlan-Keal Group consists of under way to rehabilitate this site in flowing, open water. Amargosa toad four sites: 5 ac (2 ha) of private land 2010 to benefit Amargosa toads population monitoring occurs along a 2- (Harlan-Keal), including an irrigated (STORM–OV 2009a, pp. 1–3). mi (3.2-km) section of the Amargosa

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River that is mostly perennial, from just p. 5). Crayfish and bullfrogs occur at determine when cattle should be moved north of the Stagecoach Casino and this site. to other properties in Oasis Valley. The Hotel to the Narrows, south of Beatty, newly constructed stream channel and Other Sites Nevada (see distribution map available toad pond system has been dry for at http://www.fws.gov/nevada/ A 2.6 mi (4.2 km) stretch of the almost 2 years due to insufficient water nv_species/amargosa_toad.html). Land Amargosa River north of the Stagecoach and overgrowth of emergent wetland ownership is a mosaic of private, local, Hotel and Casino, has intermittent and vegetation near the spring. Amargosa and Federal (BLM) lands. Most habitat perennial flow in sections, mostly toads continue to breed in the fenced- for the Amargosa toad exists along this associated with spring outflow. Land off spring and outflow channel on the 6- monitored section of the river, and most ownership is a mosaic of private and ac (2.5-ha) private inholding. No toads are found along the river corridor BLM lands. Cursory surveys conducted population estimates are available for where perennial water occurs and in this area by NDOW biologists have this area. bullfrogs (Lithobates (=Rana) detected Amargosa toads. Several The Indian Springs Complex consists catesbeiana) and crayfish (Procambarus private properties are known to have of Upper, Middle, and Lower Indian sp.) are few or absent. In a typical year, suitable Amargosa toad habitat. Surveys Springs. Lower Indian Spring consists of tens or hundreds of thousands of have not been conducted on these two springs, Lower Indian and Cave Amargosa toad tadpoles are produced properties; however, anecdotal Springs. Upper Indian Spring is the within the Amargosa River. The 2009 observations of toads have been location of a municipal well that population estimate for this group was reported (Maciolek 1983a, pp. 9–10; provides water to the town of Beatty. 14 percent lower than the 12–year 1983b, pp. 4, A1–4). In 1993 and 1994, Middle Indian Spring is mostly dry, average (Hobbs 2009, p. 3). This lower Heinrich (1995, p. 8) documented toads with several mature cottonwood trees. population estimate for the Amargosa at eight sites, including the Manley Little if any toad habitat currently River may be the result of low property (spring and outflow), Parker occurs at either Upper or Middle Indian detectability of Amargosa toads due to Ranch (Ute Spring), and LaFleur Spring Springs. At Lower Indian Spring, an dense vegetation, no substantial habitat site (Roberts Field). No population size approximate 10-ac (4-ha) wild burro/ improvements during the last few years, estimates or trends have been made for livestock exclosure that surrounds two and predation from bullfrogs and these other sites. Amargosa toads at springs was constructed by the BLM in crayfish. these sites are not included in the 1994, along with a water pipe and rangewide population estimates. trough outside the exclosure to provide Spicer/Mullin/Torrance Group LaFleur Spring is a historic site for water to burros, livestock, and wildlife. Amargosa toads near the northern range Currently, this site is nearly dry, with This group consists of three privately limit of the species. Altig (1987, p. 277) no water exiting the exclosure. Toads held properties which include the found up to 74 toads at this site during have been captured at Lower Indian Spicer site (320 ac; 129 ha); Mullin site 5 visits to the site in 1981. Altig further Spring as recently as 1996. No (80 ac; 32 ha); and Torrance Ranch (130 concluded that the toad population at population estimates are available for ac; 52 ha). The Torrance Ranch was the LaFleur site is small, with no this area. Attempts to restore toad purchased by The Nature Conservancy recruitment observed in 1980 or 1981. habitat at this site in 1998 were (TNC) in 1999 to protect the Amargosa No surveys have been conducted at this unsuccessful, but new techniques have toad and to provide a site for site since the 1980s. The Springdale site been developed, and the ATWG experimental habitat management to provides approximately 1 ac of (2.5 ha) proposed habitat rehabilitation in 2010. benefit the Amargosa toad. All three toad habitat; toads were reported to be Other private lands have been or sites are contiguous or in close present in July and August 1983 by could be occupied by Amargosa toads. proximity to each other, which allows Maciolek (1983a, p. 8). Habitat Revert Spring (303 ac; 123 ha) is movement of Amargosa toads among all improvements have occurred, including privately owned by the owner of the three sites. The 2009 population the removal of salt cedar. The Stagecoach Hotel and Casino. Revert estimate for this group was 86 percent Springdale site is not included in the Spring is an important water source for above the 12–year average for these population monitoring program for Amargosa toad habitat in the river. sites. All three property owners are Amargosa toads. Although Maciolek (1983a, p. 10) conservation partners with the Service Parker Ranch (24 ac; 212 ha) was documented Amargosa toads at Revert and NDOW, and have accomplished or purchased by TNC in December 2000, Spring in July and August 1983, the cooperated on numerous toad habitat with assistance from the State of current status of toads at the Revert improvement projects. Nevada, the National Fish and Wildlife Spring site is unknown. Coffer Ranch Angel’s Site Foundation, and the U.S. Department of (900 ac; 364 ha) occurs at the Agriculture, Natural Resource northernmost edge of the range of the This 296-ac (120-ha) site consists of a Conservation Service (NRCS), to protect Amargosa toad and is owned and single location on private property. A and restore unique biological resources, managed by a cattle company. Maciolek spring-fed, cement lined pond that has including Amargosa toad habitat. Parker (1983b, p. A–1) reported that Amargosa an outflow to a wetland pasture Ranch is approximately 4 mi (6.4 km) toads were present at the Coffer Ranch, provides breeding and oviposition north of Beatty and includes Ute Spring. and suitable Amargosa toad habitat was habitat for the Amargosa toad. No Parker Ranch is currently being grazed present. However, no population habitat changes have been observed in by 74 cattle by a local rancher to reduce estimates are available for these or other at this site since monitoring efforts the amount of emergent wetland privately owned lands where Amargosa began in the mid-1990s. The pond was vegetation to increase open water areas toads may occur. dry in 2007 and no evidence of (Moore 2010, p. 3). The spring source reproduction was observed in 2008. The was fenced off and outflow stream Amargosa Toad Working Group (ATWG) population estimate for this site channels were reconstructed in recent and Amargosa Toad Conservation declined 33 percent in 2009 compared years to prevent damage to stream banks Agreement and Strategy (CAS) to 2008, and 23 percent below the 12– (Moore 2010, p. 3). The NRCS is In 1996, the ATWG was organized to year average for this site (Hobbs 2009, monitoring the vegetation condition to provide recommendations for

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management and conservation of the achieving these goals. CAS (1) The present or threatened Amargosa toad. The ATWG consists of accomplishments that have contributed destruction, modification, or representatives of the Service, NDOW, towards success include 12 years of curtailment of its habitat or range; (2) TNC, Nevada Department of population monitoring and maintaining overutilization for commercial, Conservation and Natural Resources, population data in a database; salt cedar recreational, scientific, or educational Bureau of Land Management (BLM), removal; habitat rehabilitation and purposes; (3) disease or predation; (4) Nye County, Beatty Town Board, Beatty enhancement; research; public the inadequacy of existing regulatory Habitat Committee, The Amargosa education and outreach; and habitat mechanisms; or (5) other natural or Conservancy, private landowners in the acquisition as discussed in Factor A. manmade factors affecting its continued Beatty community, the University of Other CAS accomplishments include existence. In making this finding, Nevada at Reno, and others. The ATWG control of predators through habitat information pertaining to the Amargosa meets semiannually to present and manipulation and work with the local toad in relation to the five factors exchange information on the toad and community to achieve conservation provided in section 4(a)(1) of the Act is its habitat, including the status of such as an open space plan. The CAS discussed below. habitat conditions and ongoing habitat signatories and the ATWG, in In making our 12–month finding on a projects, potential threats to the toad, cooperation with local landowners, petition to list the Amargosa toad, we and population monitoring data, and to have planned and initiated multiple considered and evaluated the best identify new conservation tasks. projects to protect, restore, and enhance available scientific and commercial In 2000, the ATWG completed the toad habitat, and create new habitat. information. The analysis of potential Amargosa Toad CAS (NDOW 2000, pp. Overall success is measured by threats to the Amargosa toad discussed 1–12), which provides management and population monitoring data that show below includes those identified in the conservation guidance for the Amargosa that rangewide, Amargosa toad petition and those that we considered to toad. The CAS informs management of populations are relatively stable and be substantial in our 90–day finding (74 the conservation needs of the toad, respond promptly and positively to FR 46551). prioritizes tasks, and provides an habitat improvements. Previous habitat Factor A. The Present or Threatened implementation schedule. The ATWG is improvements on the Amargosa River, currently updating the CAS to include Destruction, Modification, or Harlan-Keal, Mullin, and Spicer sites Curtailment of Its Habitat or Range accomplishments and updated have all resulted in substantial conservation needs for the toad. population increases of toads. In 2005, Private Land Development The CAS was developed to expedite vegetation was removed by NDOT at the toad conservation over a period of 10 The petition identified several U.S. 95 Highway bridge over the potential residential or commercial years by providing guidance and a Amargosa River in Beatty. This resulted framework for implementation of developments on private land that could in a positive response by toads as shown cooperative long-term conservation adversely affect the Amargosa toad or its by a large reproductive event and a 2006 actions to benefit the toad and co- habitat. However, based on information population estimate of 1,854 for the occurring species. Signatories to the provided by TNC during our review river which was the highest on record CAS include NDOW, Nye County (Moore 2010, pp. 1–3), none of the (ATWG 2005, p. 2; Wixson 2006, p. 3). Department of Natural Resources, the proposed developments appear to be Again in 2005, vegetation was cleared Service, BLM, TNC, the Nevada Natural viable. Real estate and development from the pond at the Harlan-Keal site Heritage Program, and the University of markets in nearby Pahrump and Las with funding from the Service and Nevada at Reno. The signatories provide Vegas influence markets in the Beatty NDOW which resulted in an estimated representatives to the ATWG. The area, and each of these three areas have signatories and ATWG are committed to 90 percent increase in the population in experienced a downturn in both the implementing specific conservation 2006 over the 2005 estimate (Wixson general economy and the housing actions (tasks) which identify, reduce, 2006, p. 2). market. Plans for a shooting range across or eliminate threats to the species, and The ATWG is in the process of from Torrance Ranch have been maintain and enhance a properly updating the CAS and anticipates a abandoned and the property was functioning ecosystem for the Amargosa revised CAS by the end of 2010. The recently sold to an individual who plans toad and other indigenous species of revised CAS will acknowledge to build a home on the 40-ac (16-ha) site Oasis Valley. The ATWG meets accomplishments and identify the (Moore 2010, p. 3). A geothermal project semiannually to plan Amargosa toad conservation needs of the toad for the at a hot spring on private lands conservation actions. Most conservation next 10 years. The revised CAS will identified by CBD as a threat (2009, p. actions in the CAS are implemented by operate in a similar manner as the 2) has been abandoned (Moore 2010, pp. local private land owners, and land and existing one. The CAS has proven, 1–3). Although development may occur resource managers. based on its 10 year track record, to be within the range of the Amargosa toad Many of the conservation actions an effective tool in furthering the long- over the near term, it is difficult to implemented by the ATWG and its term conservation of the species. predict the scope of that development based on the available information. various partners are a direct result of the Summary of Information Pertaining to Furthermore, humans and Amargosa commitments made in the CAS for the the Five Factors Amargosa toad (NDOW 2000, pp. 1–12). toads have coexisted in the Beatty area The goals of the CAS are to manage Section 4 of the Act (16 U.S.C. 1533) since the early 1900s. Amargosa toads at threats, maintain habitats, monitor and implementing regulations (50 CFR the Harlan-Keal site and other sites populations, and test and evaluate part 424) set forth procedures for adding where residential or commercial habitat manipulations. Completed species to the Federal Lists of development and toads co-occur conservation actions identified in the Endangered and Threatened Wildlife demonstrate that toad and human CAS have addressed threats identified and Plants. Under section 4(a)(1) of the interface can be compatible. Toads in Factors A, B, C, and E (see below). Act, a species may be determined to be occur in most disturbed and developed We consider the CAS successful if endangered or threatened based on any areas with surface water and may be considerable progress is made towards of the following five factors: locally abundant. During our review, we

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found no indication that the economic completed, and cannot be certain that surveys. This suggests that any growth of Beatty will change these rights will be secured. reduction in population is limited to the substantially in the foreseeable future. Groundwater level records for Oasis area of Indian Springs. BWSD pumping Due to the absence of potential Valley, which are both recent and long at the Indian Springs well has decreased developments identified in the petition enough to assess trends (e.g., over the since the late 1990s, but Indian Springs and the ability of toads to coexist with last 10 years or more), are limited to remains one of three primary supply humans in developed and disturbed monthly and bimonthly measurements wells in Oasis Valley for the town of areas, we conclude habitat loss as a collected by the U.S. Geological Survey Beatty. With respect to the potential for result of development on private land is (USGS) for the U.S. Department of additional groundwater pumping in not a substantial threat to the Amargosa Energy (USDOE) as part of the USDOE Oasis Valley, actual groundwater toad now or in the foreseeable future. Environmental Restoration Program withdrawals by the BWSD have been Groundwater Development and (USGS/U.S. DOE Cooperative Studies in limited to approximately 10 to 15 Extraction Nevada, http://nevada.usgs.gov/doe_nv/ percent of their existing rights over most The petitioners provided information ). Specifically, groundwater level of the last decade (Eng 2010, p. 1). that claimed existing and future water measurements are available for seven Whereas substantially more uses and developments are important wells or nested wells along or near the groundwater could be pumped for threats that reduce surface water Amargosa River channel in Oasis Valley municipal purposes under existing available for Amargosa toads in Oasis and a number of additional wells to the BWSD rights, their pumping within Valley and that result in habitat loss. north and east within the valley and up Oasis Valley has been fairly constant. The majority of water right allocations gradient basins for the period 1998 to Overall demand has decreased within the basin are spring diversions late 2009. The wells range in depth from approximately 25 percent (coupled with for irrigation and livestock watering. 200 ft (61 m) or less in consolidated a decrease in pumping at the Barrick Priority dates for groundwater rights, sedimentary deposits to thousands of Mine) over this same period of time including those of Beatty Water and feet in the volcanic rock aquifer. Trends based on pumping inventories provided Sanitation District (BWSD), range from in groundwater levels along the by the Nevada State Engineer (NSE). the 1920s to 1996, with the majority Amargosa River channel from 1998 to Additionally, BWSD demand varies dating to the late 1980s or earlier. The 2009 are mixed, some increasing seasonally, with demand at a minimum priority dates are the dates the moderately, some decreasing from December through March, the application are submitted and moderately, and some relatively latter of which coincides with the determine the seniority of the water constant on an annual basis. Water beginning of the Amargosa toad right relative to other water rights in the levels in two of the seven monitoring breeding season. Moreover, the NSE has affected basin. Spring diversions are wells located along or near the ruled that the degree of hydraulic located primarily along or near the Amargosa River channel (well ER–OV– connection between groundwater and Amargosa River channel. Groundwater 03 and the Beatty Wash Terrace Well) surface water in Oasis Valley is such rights are limited to approximately one decreased 1.3 to 1.5 ft (0.4 to 0.5 m) that they constitute a single source (NSE sixth of water right allocations in the from 2000 to late 2009. However, these Ruling 4669, 1998) and that no valley (by volume), 85 percent of which declines occurred in no clear relation to unappropriated water existed in the are held by the BWSD as a source of permitted or certificated groundwater basin as of 1995 (NSE Ruling 4174, supply for homes and businesses in the rights (pumping at permitted supply 1995), making additional allocations, town of Beatty. The BWSD holds water wells). Rather, they may be indicative of groundwater or surface water, unlikely. rights for three wells in the town of local evapotranspiration responses. Beatty and two wells several miles Elsewhere along the river channel, Excessive groundwater withdrawals northwest of town (including one at groundwater levels were unchanged, or have the potential to affect springs and Indian Springs), in addition to a increased a few tenths of a foot from rivers that depend on groundwater for groundwater right at the Barrick Mine in 2000 to late 2009 (ER–OV04a, recharge or base flows. Field Amargosa Valley (Nevada Division of Springdale Upper Well, ER–OV–02, ER– reconnaissance and Nevada Division of Water Resources, http://water.nv.gov/). OV–05, and ER–OV–06a). Water Resources well drilling records Other groundwater rights in Oasis In areas to the north and east which identified approximately 15 springs and Valley (a total of 8) are for irrigation, supply groundwater to the vicinity of 20 nonmunicipal wells that supply recreation, livestock watering, and the Amargosa River channel and water to individual homes and ranches minor commercial and mining Amargosa toad habitat in Oasis Valley, in Oasis Valley (Reiner et al. 2002, p. activities, most in the amount of 20 specifically northeastern Oasis Valley 33). A reasonable estimate of acre-feet per year (afy) or less. and the area of Pahute Mesa (the latter groundwater withdrawal consumed Currently, TNC is negotiating located in the Gold Flat and Forty mile from each of these sources is 1 afy purchase of the water rights (500 afy) at Canyon-Buckboard Mesa basins) (Reiner et al. 2002, p. 33). Based on this Revert Spring with the owner of the (Laczniak et al. 1996, pp. 18–19; Reiner consumption rate and the number of Stagecoach Hotel and Casino to et al. 2002, pp. 8–9; Fenelon et al. 2010, supply sources, a reasonable estimate of establish long-term protection measures pp. 22–23 and Plate 5), water levels in the nonmunicipal use of groundwater for the water flowing from the spring USDOE Environment Restoration from Oasis Valley is 35 afy. Estimates of source into the Amargosa River. Program wells increased a few tenths of the total annual groundwater Acquisition of this important water a foot to approximately 1.5 ft over this withdrawal from Oasis Valley, source can reduce the threat of its use same period. computed by combining municipal and for commercial purposes and enable No groundwater level data are non-municipal estimates, declined from TNC to meet its commitment in the CAS available for the vicinity of the BWSD 440 afy in 1996, when Beatty’s human to work with private landowners to supply wells. As such, the effects of population was 2,068, which was the pursue conservation actions such as BWSD pumping on surface water highest during the period 1991–2007 acquisitions and easements (NDOW resources cannot be evaluated at this (Stantec 2009, p. 22), to 210 afy in 1999, 2000, p. A–20). However, we recognize time except as they may be judged from when Beatty’s population declined to that this transaction has yet to be the results of biannual Amargosa toad 1,703.

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The population estimates for Beatty in The petitioners state that BLM failed of the team is to monitor habitat 2007 indicate a resident base of to initiate planning for habitat conditions of the river, develop approximately 1,068 persons (Stantec enhancement projects including Wild management recommendations, and Consulting 2009, p. 22). This estimate Burro Seep and Upper Cave Spring in coordinate habitat improvement with reflects a declining population trend the Lower Indian Spring system (CBD landowners and managers on behalf of during the period 1991–2007. While the 2009, p. 20). In fall 2009, STORM–OV, the signatories of the CAS and the future population size of Beatty is in cooperation with BLM and the ATWG. unknown, we found no indication that ATWG, modified Wild Burro Seep and The overall habitat suitability of the human population will increase greatly increased the extent of surface individual sites varies from year to year beyond historic levels and we do not water and toad habitat at the site. depending on conditions and may anticipate an increase in use of STORM–OV and BLM developed plans become unsuitable for toads. Because groundwater to support new residential to restore Lower Indian Springs and the Amargosa toad occurs as development. We conclude that future Crystal Spring in 2010 and 2011 metapopulations, toads will move back human population effects on the (STORM–OV 2009a, pp. 1–3; Spicer into these sites from neighboring sites Amargosa toad are driven by the 2009, pp. 1–5). Habitat enhancement is once the habitat becomes more suitable. economic status and growth of the a conservation action in the CAS In the absence of natural disturbance Beatty. Since there is no indication that (NDOW 2000, p. A–11). such as flood events and wildfires, toad growth will increase, we conclude that The Stagecoach Hotel and Casino habitat will likely require periodic demand for groundwater is not likely to owner is a conservation partner with manipulation or other forms of rise. TNC and the Service. In 2001, the disturbance such as burro or cattle use The petitioners submitted comments Service’s Partners for Fish and Wildlife to sustain toad populations. Based on that identified a proposed solar energy Program funded habitat improvements the metapopulation structure of the project in Amargosa Valley requiring in the vicinity of the Stagecoach to toad, successful habitat projects and 3,000 afy of groundwater for wet-cooling benefit the Amargosa toad. The owner disturbance by burros and cattle, we and operation (CBD 2009, pp. 1–2). This and TNC continue to improve habitat anticipate that habitat planning and energy project remains proposed but has along the river behind the property, implementation have resulted in been modified to use dry-cooling that which is part of a parcel identified as a positive responses by toads. We expect would reduce groundwater use to 400 fee-title donation to TNC for the Amargosa River Planning Team, afy. The 400 afy of groundwater conservation purposes pursuant to TNC, BLM, Service, and private proposed for the project is currently prescribed conservation actions in the landowners to continue their efforts to used for agriculture and, therefore this CAS. In addition, TNC and the Nevada maintain and improve toad habitat into level of groundwater use is not Department of Transportation (NDOT) the foreseeable future in accordance anticipated to significantly affect are working to remove debris from the with the CAS. We expect members of existing groundwater levels in the up riverbank, which should improve the ATWG and private landowners to gradient areas where Amargosa toads habitat for the Amargosa toad. continue their current efforts to occur (Peterson 2010, p. 1). In 2007, 30 ac (12 ha) of nonnative maintain and improve toad habitat, as The petitioners also identified 11 trees were removed from the Mullin site they have in the past, in accordance Department of Energy (DOE) and replaced with native willows and with the CAS into the future. As a applications for water rights in Oasis cottonwoods as prescribed in the CAS result, we have determined that habitat Valley as a potential threat to the toad (NDOW 2000, p. A–11). During the 2009 planning and implementation is not a through groundwater withdrawal effects survey, 137 Amargosa toads larger than threat to the Amargosa toad now, nor is (CBD 2009, p. 2). The DOE applications 2 in (50 mm) were captured on the it expected to be so in the foreseeable were submitted for construction of a Mullin site. This was the highest future. railroad to a proposed nuclear waste number of captures for this site (Hobbs repository and were protested by the 2009, p. 4). Vegetation Overgrowth petitioners and others. The Service Three springs on the Spicer site have Overgrowth of vegetation in aquatic recommended that DOE transport water been enhanced for the Amargosa toad by habitats is an ongoing management needed for this project from sources the landowner. Surface water is objective for the Amargosa toad as other than those associated with the distributed on the Spicer site through a specified in the CAS (NDOW 2000, pp. Amargosa toad, Ash Meadows, and system of pipes which provides most of A–11 and A–16). Habitat for Amargosa Devils Hole. In February 2010, DOE the water for toad habitat. Manipulation toads at several spring sites including withdrew their applications for water of the distribution pipes provides a Torrance Ranch, Lower Indian Spring, rights in the Oasis Valley. habitat management tool to allow ponds and Crystal Spring, has degraded as a Based on the available information on to be created, or dried to remove result of overgrowth of emergent volume, timing, and location of crayfish and bullfrogs as prescribed in vegetation and loss of open water. groundwater withdrawals, historic use the CAS (NDOW 2000, pp. A–11 and A– Overgrowth of vegetation occurs mostly of groundwater, and water-level 12). Amargosa toads responded at small spring sites and in the absence measurements, we conclude that water positively to the habitat improvements of disturbance or management. use and development in Oasis Valley is in 2009, increasing by 300 percent of Although Lower Indian Spring and not a substantial threat to the Amargosa captured and marked toads since 2008 Crystal Spring are small spring sites and toad at this time or in the foreseeable (Hobbs 2009, p. 4). represent only a small fraction of the future. No declines in groundwater or The Amargosa River Planning Team species’ individuals and distribution, toad numbers have been observed at was formed in October 2009 as a result the ATWG considers vegetation monitored sites as a result of pumping. of a recommendation by the ATWG that management a priority for these sites. The current and foreseeable demand for was included in the CAS (NDOW 2000, Mechanical removal, controlled burns, groundwater in Oasis Valley remains p. A–14). The team consists of ATWG and grazing are proven tools to manage consistent with historical uses. representatives including the Service, vegetation in spring systems at Harlan- Inadequate Habitat Enhancement NDOW, Nye County, BLM, and TNC, Keal (ATWG 2004, p. 3) and Torrance Planning and Implementation but also local landowners. The purpose Ranch (ATWG 2007, attachment 1, p. 1).

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Spring-supplied ponds typically require spring sites to exclude feral burros most resulting from recreation or OHV use in disturbance or periodic removal of likely has contributed to declines in toad habitat and the location of many of vegetation to maintain suitable habitat toad populations at these sites by the spring sites on private land that conditions (e.g., open water) for the reducing habitat disturbance. BLM have no OHV use, we do not expect Amargosa toad. Local ranchers manages the burro population and effects from recreation and OHV use to historically managed Crystal Spring and conducts burro ‘‘gathers’’ when the burro increase or become a threat to the toad other springs to maintain open water numbers exceed the appropriate in the foreseeable future. (Spicer 2010, p. 1). Limited use by management level for the area in Invasive Plant Species livestock or feral burros provides accordance with the CAS (NDOW 2000, disturbance that benefits toads; p. A–16). Most feral burro use of The petitioners assert that introduced however, excessive use by livestock or monitored sites occurs along the river. invasive trees have become established feral burros result in degradation of We conclude that light to moderate along stretches of the Amargosa River habitat. Current and future habitat ungulate use is not a substantial threat and springs, which may reduce prey projects at spring sites are designed to to the toad and likely provides some and microhabitat available for the minimize vegetation growth, benefit to the Amargosa toad. Although Amargosa toad (CBD and PEER 2008, compensate for potential reductions in the number of feral burros fluctuates, we pp. 24 and 26). spring flow due to overgrowth of do not anticipate the level of burro use Salt cedar is an exotic, invasive vegetation, and maintain proper habitat in Amargosa toad habitat to increase so species that grows in shrub form to conditions for the toad. Currently, that it would affect toad populations in medium tree size and is native to excess vegetation conditions occur at the foreseeable future. Eurasia. Removal of salt cedar is Crystal and Lower Indian Springs, but identified as a conservation action in Recreation and Off-Highway Vehicle habitat modification proposed for 2010 the CAS (NDOW 2000, p. A–11). Native (OHV) Activity and 2011 at these sites (STORM–OV aquatic and wetland herpetofauna may 2009a, pp. 1–3; Spicer 2009, pp. 1–5) is OHV activity affects Amargosa toads be negatively impacted in areas where anticipated to substantially improve most during the breeding season and salt cedar draws down surface water habitat conditions for the toad. As stated during the especially vulnerable egg and (Shafroth et al. 2005, pp. 237–238). previously, we expect the efforts to tadpole stages of development. OHV Water-use studies indicate that maintain and improve toad habitat effects are only known to be a concern increases in water yield following salt which includes control of vegetation to along the Amargosa River near the cedar control are likely to occur only continue in accordance with the CAS. Stagecoach Hotel and Casino. TNC when a salt cedar stand containing high Therefore vegetation overgrowth is not a biologists have observed small isolated leaf area is replaced by vegetation with significant threat to the Amargosa toad pools containing egg strands or tadpoles a lower leaf area (Shafroth et al. 2005, now, nor is it expected to be so into the in various stages of development that pp. 237–238). The native vegetation in foreseeable future. were affected by OHVs in the riverbed Oasis Valley requires more water than is within the Town of Beatty. The local provided by local rainfall. As a result of Grazing and Trampling nonprofit group, STORM–OV, is high evapotranspiration rates during the The petitioners state that use of attempting to educate the OHV users summer, these plants must rely on local springs by feral burros and cattle may about the need to avoid ponded water groundwater for sustenance (Reiner et result in degraded habitat and reduced during the toad breeding season, a al. 2002, p. 42). Anderson et al. (2004, numbers of Amargosa toads (CBD and conservation action prescribed in the cited in Shafroth et al. 2005, pp. 237– PEER 2008, pp. 17–18, 21 and 23–25). CAS (NDOW 2000, p. A–18). In 238) present data from the lower The current level of burro occurrence in addition, TNC plans to use its river Colorado River suggesting that Amargosa toad habitat varies by site and properties behind the Stagecoach Hotel abundances of several of the most ranges from zero to moderate with most and Casino and northward in common insect families in riparian use along the Amargosa River. Cattle use educational opportunities. These two areas occur in comparable or greater of Amargosa toad habitat is limited to groups propose to conduct town abundance on salt cedar than on most the northern sites where a cattle meetings to inform Beatty residents of native vegetation. Efforts to remove salt operation is located (Coffer Ranch) and the need to avoid damaging toad cedar and other nonnative, invasive sites targeted for vegetation reduction. breeding pools during the defined plants from the Amargosa River While burros and livestock (ungulates) breeding season. While localized OHV watershed have occurred since 2003. may trample Amargosa toad eggs and use may cause a relatively small number Replacing salt cedar with native larvae, light to moderate disturbance is of eggs or tadpoles to be removed from vegetation may result in lower important to the Amargosa toad which the affected population, this level of loss evapotranspiration rates. Eleven grants is a disturbance-dependant species is not substantial in the context of the provided $118,500 for salt cedar (ATWG 2005, p. 2). In the absence of potentially tens or hundreds of removal from 11 private properties and disturbance, vegetation grows thousands of Amargosa toad eggs and BLM, NDOT, and BWSD-managed land. uncontrolled and reduces open areas tadpoles produced in a typical year. Salt cedar has been removed from necessary for the toads. Intensive and No landowners or managers have approximately 1,895 ac (767 ha) of uncontrolled use of Amargosa toad identified, nor are we aware of any Amargosa toad habitat, and salt cedar habitat by ungulates may threaten the spring sites that are substantially removal efforts will likely continue. species by degrading habitat and killing affected by OHV activity. The Amargosa toad population monitoring individual toads; however, light to petitioners identified an OHV race that data may be used to assess and measure moderate use is known to be beneficial passes near Crystal Spring as a potential the effect of salt cedar removal on the to the Amargosa toad. Complete removal threat to the toad. In 2008, BLM chose toad. We do not believe salt cedar is a of ungulates could lead to overgrowth of an alternate route away from toad significant threat to the Amargosa toad vegetation, and may pose a more serious habitat for OHV events near Crystal now or in the foreseeable future because threat to the Amargosa toad than Spring and continues to consider the salt cedar has been removed from toad moderate ungulate use. Fencing toad during OHV permitting actions. habitat and those efforts continue in installed at the Crystal and Indian Due to the absence of substantial effects accordance with the CAS.

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Failure of the CAS to Protect Toads and habitat. Overall success is measured by distribution. Habitat has been improved Habitat population monitoring data that show at several sites and improvements at The petitioners claim that the CAS that rangewide, Amargosa toad other sites are planned for 2010 and failed to protect Amargosa toads and populations are relatively stable and 2011. Although some sites are affected increase toad populations. The CAS is a respond promptly and positively to by overgrowth of vegetation, past and voluntary, non-regulatory agreement. habitat improvements. Previous habitat ongoing conservation and management The CAS was developed to expedite improvements on the Amargosa River, actions have improved toad habitat and Amargosa toad conservation over a Harlan-Keal, Mullin, and Spicer sites contributed to stable Amargosa toad period of 10 years by providing have all resulted in substantial populations, as reflected in the 11 years guidance and a framework for population increases of toads. In 2005, of population monitoring. In one implementation of cooperative long- vegetation was removed by NDOT at the particular instance, a habitat term conservation actions to benefit the U.S. 95 Highway bridge over the manipulation project was developed toad and co-occurring species. Amargosa River in Beatty. This resulted and implemented, and was very Signatories to the CAS include NDOW, in a positive response by Amargosa successful in transforming a small seep Nye County Department of Natural toads as shown by a large reproductive into a new breeding site for toads Resources, the Service, BLM, TNC, the event and a 2006 population estimate of (STORM–OV 2009a, p. 1). Amargosa Nevada Natural Heritage Program, and 1,854 for the river which was the toad population estimates are an highest on record (ATWG 2005, p. 2; the University of Nevada at Reno. The indication of habitat quality at a given Wixson 2006, p. 3). In 2005, vegetation signatories provide representatives to site, and in those areas where habitat was cleared from the pond at the the ATWG. The signatories and ATWG improvements have been conducted, Harlan-Keal site with funding from the are committed to implementing specific Amargosa toad populations have Service and NDOW which resulted in conservation actions (tasks) which increased substantially. Grazing by an estimated 90 percent increase in the identify, reduce, or eliminate threats to cattle and feral burros may be locally population in 2006 over the 2005 the species, and maintain and enhance excessive, but moderate use provides estimate (Wixson 2006, p. 2). needed disturbance to the aquatic a properly functioning ecosystem for the The ATWG is in the process of systems that improves Amargosa toad Amargosa toad and other indigenous updating the CAS and the group habitat. Some local areas are impacted species of Oasis Valley. The ATWG anticipates a revised CAS by the end of by OHV use but not to the extent that meets semi-annually to assess the 2010. The revised CAS will conservation needs of the toad and plan acknowledge accomplishments and population declines can be identified. Amargosa toad conservation actions. identify the conservation needs of the There has been no apparent reduction in Most conservation actions in the CAS Amargosa toad for the next 10 years. the current range of the Amargosa toad are implemented by local private land The existing CAS and revision will compared to the historical range. As a owners, and land and resource function similarly. Although the CAS is result of conservation efforts managers. a voluntary, non-regulatory agreement, accomplished by TNC through habitat Many of the conservation actions we conclude that the CAS efforts have acquisition and improvements, and by implemented by the ATWG and its been very successful in establishing a various groups through other habitat various partners are a direct result of the coalition of partners, including State improvement projects at Mullins, commitments made in the CAS for the and Federal agencies, local government, Harlan-Keal, Spicer, and Torrance, Amargosa toad (NDOW 2000, pp. 1–12). private landowners, and conservation along the River, and at Parker Ranch The goals of the CAS are to manage organizations committed to reduce or and Trespass Seep, there has been an threats, maintain habitats, monitor eliminate the threats to the species and increase in habitat quality or quantity populations, and test and evaluate assure long-term conservation for the for the Amargosa toad at these sites. habitat manipulations. Completed Amargosa toad. In the absence of the Additionally, private landowners have conservation actions in the CAS have CAS, conservation progress would recently become and remain involved in addressed threats identified in Factors proceed at a reduced rate but would not conservation efforts. Salt cedar has been A, C, and E. We consider the CAS result in the species becoming substantially removed from private and successful as considerable progress has threatened. Therefore, based on BLM land. Completed actions been made towards achieving these implementation of various conservation prescribed in the CAS to conserve the goals. The CAS accomplishments that actions resulting from the CAS as Amargosa toad have been shown to be have contributed towards success discussed in the factor above, we find successful in meeting the objectives in include 12 years of population that the existence and implementation the CAS and reducing or eliminating the monitoring and maintaining population of the CAS do not pose a threat to the threats to the Amargosa toad under data in a database; burro management species. Factor A. We conclude that the present through monitoring and gathers; salt or threatened destruction, modification, cedar removal; habitat rehabilitation Summary of Factor A or curtailment of the habitat or range of and enhancement; research; public Development on private lands and use the Amargosa toad is not a significant education and outreach; and habitat of groundwater are not significant threat to this species now or in the acquisition as discussed above in this threats to the Amargosa toad. Most foreseeable future, due to the limited factor. Other CAS accomplishments previously proposed developments have growth projected for Beatty, current and include control of predators through been abandoned. With potential anticipated groundwater use and levels; habitat manipulation and work with the development stalled, growth activity completed and proposed habitat local community to achieve within Beatty is not expected to change improvements including removal of salt conservation such as an open space substantially in the foreseeable future. cedar; continuing management of the plan. The CAS signatories and the Groundwater use in the Beatty area has Amargosa River and adjacent habitat ATWG in cooperation with local decreased or remained constant, and under the direction of the Amargosa landowners have planned and initiated groundwater levels have fluctuated but River Planning Team, a subcommittee of multiple projects to protect, restore, and these fluctuations do not appear to the ATWG; and continued enhance toad habitat, and create new affect Amargosa toad numbers or implementation of conservation

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measures in accordance with the revised predator and prey are not present in all we cannot assess the potential impact of CAS. occupied patches all of the time predators on the Amargosa toad (Simandle 2006, p. 9). population. However, we do have Factor B. Overutilization for Currently, the most promising Amargosa toad survey data collected Commercial, Recreational, Scientific, or management tool for nonnative since 1998 for sites occupied and Educational Purposes predators involves manipulating and unoccupied by bullfrogs and crayfish. The petitioners provided no enhancing habitat for Amargosa toads Population numbers at sites with information regarding threats under this while making habitat less suitable for predators and without predators have factor, nor do we have information on bullfrogs and crayfish, as prescribed in fluctuated in a similar manner, which the potential threat of overcollection or the CAS (NDOW 2000, p. A–12). This is indicates there is no population level of overutilization for commercial, accomplished by drawing down ponded effect that can be attributed to recreational, scientific, or educational areas that contain nonnative predators predation. This is consistent with the purposes. There is no information to and allowing them to be dry for a period way in which a metapopulation indicate this factor will become a threat of time long enough to kill the structure of interconnected populations to the species in the foreseeable future. nonnative predators and cause toads to functions; thus, in certain areas We find overutilization for commercial, move to nearby sites. Recently Amargosa toads may become extirpated, recreational, scientific, or educational completed and proposed habitat but repopulate those areas at a later purposes does not threaten the projects have incorporated the time. The capability of toads to move Amargosa toad. Based on a review of the capability of adding or removing water among these sites in response to threats best available scientific and commercial to allow sites to dry to remove or reduce and habitat condition allows toads to data, we find no indication that numbers of bullfrogs and crayfish, and coexist with nonnative predators. For overutilization for commercial, are designed to provide an advantage to instance, the population estimate for the recreational, scientific, or educational Amargosa toads including substrate Spicer property in 2009 increased from purposes is a threat to the Amargosa selection and water depth. One of the 53 to 167, even though it is a site where toad now or in the foreseeable future. goals of the CAS is to manage threats to crayfish and bullfrogs are abundant. The the Amargosa toad. We consider the increase in Amargosa toad numbers in Factor C. Disease or Predation CAS successful as considerable progress 2009 at the Spicer site is most likely a Disease has been made towards achieving this result of habitat improvements, which goal and addressing threats to the demonstrates the success of habitat Chytridiomycosis is an infectious Amargosa toad under Factor C. condition. We are unaware of any disease of amphibians caused by the The life history of the toads further extirpations that can be attributed to chytrid fungus Batrachochytrium reduces the threat of nonnative crayfish or bullfrogs, but Amargosa dendrobatidis. Although the fungus has predators. Under average conditions, toads have been extirpated or nearly been detected in bullfrogs in the Oasis toads produce tens or hundreds of extirpated from Lower Indian Spring Valley, it has not been detected in thousands of eggs, larvae, and toadlets and Crystal Spring as a result of poor Amargosa toad populations. Chytrid each year, most of which will not habitat conditions mostly due to fungus has been identified in western survive to adults with or without overgrowth of vegetation. toad (Anaxyrus boreas) populations in predatory pressure. In 2009, NDOW, TNC World Wide Colorado where western toad Although bullfrogs are known to Office, and Arizona Game and Fish occurrence is restricted to high occur at 10 of 18 sites occupied by Department provided funding to TNC to elevations (7,200 to 11,150 ft [2,200 to Amargosa toads, the monitoring data do develop crayfish removal strategies 3,400 m]; Muth et al. 2003, p. 358). The not indicate a declining toad population which included habitat characterization, Service and NDOW have no evidence trend. We have documented Amargosa crayfish distribution, and control that chytrid or other diseases are toads in the stomach contents of techniques in a five-state effort (AZ, affecting or will affect the Amargosa bullfrogs (ATWG 2003, p. 2). While NM, CA, UT, and NV). These studies are toad population. No sign of chytrid there is no coordinated control effort, currently under contract; the first phase fungus or other disease has been bullfrogs are removed from the is to be completed by June 30, 2010. observed in the hundreds of Amargosa Amargosa River and other sites We expect the current level of toads captured and inspected rangewide occupied by Amargosa toads during predation by crayfish and bullfrogs to every year since 1995. Further, no ill or population surveys. All toad habitat continue into the foreseeable future, but dying toads have been reported by improvement projects consider the do not consider this level of predation landowners or agency biologists. needs of the toad and select against a significant threat due to the life Population monitoring data do not bullfrogs. Bullfrogs generally require history characteristics of the Amargosa indicate a decline in Amargosa toad deeper, impounded perennial waters, toad and their ability to coexist with numbers. Therefore, we find disease is which are more limited than shallow nonnative predators and move among not a threat to the Amargosa toad now stream and spring outflow habitat in metapopulations. This determination is or in the foreseeable future. Oasis Valley. Observation and removal based on the Amargosa toad of bullfrogs from stream and spring Predation metapopulation structure; habitat outflows can be very effective in projects that select for toads; the life Predation of all life stages of the controlling bullfrog numbers. history of the toad; and 12 years of toad Amargosa toad by nonnative crayfish Since their introduction in the mid- population monitoring data that shows and bullfrogs is a threat to the Amargosa 1980s, nonnative crayfish have become toads can coexist with nonnative toad at the metapopulation level. established along most of the Amargosa predators. However, metapopulations of a species River and at seven spring sites occupied allow for the coexistence of predators by the Amargosa toad. We have no Predation by Fish Species and prey, or coexistence of competitors. Amargosa toad population data prior to The majority of habitats in Oasis While local extinctions may occur, the the introduction of crayfish, bullfrogs, Valley supporting Amargosa toad species may persist regionally if the or other nonnative Amargosa toad populations are not structurally capable metapopulation structure ensures that predators into Oasis Valley; therefore, of supporting the large-bodied predatory

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fish that would be capable of significant reducing or eliminating the threats to BLM sensitive species. This requires predation on Amargosa toads (NDOW the Amargosa toad under Factor C. BLM to ensure that actions they 2009, p. 4). Largemouth bass Therefore, after a review of the best authorize, fund, or carry out do not (Micropterus salmoides) are known to scientific and commercial information, contribute to the need to list the species occur in at least one pond on private we conclude disease and predation are as threatened or endangered (BLM property in Oasis Valley, but Amargosa not significant threats to the Amargosa Manual section 6840.06 C). The BLM’s toads are not a primary component of toad and are not likely to become Tonopah Resource Management Plan their diet. Black bullhead catfish significant threats in the foreseeable and Record of Decision (RMP) (Ictalurus melas) and Amargosa toads future. This determination is based on determined that habitat for BLM have co-occurred at one pond on private the absence of signs of disease; sensitive species be managed to land at the Harlan-Keal site for at least Amargosa toad metapopulation maintain or increase current 10 years; however, the pond dried structure; habitat projects that select for populations of these species (BLM 1997, during the summer 2009, and catfish are toads; the life history of the toad; and 12 p. 9). not expected to persist at this site. years of toad population monitoring The petitioners identified privately Therefore, we do not consider data that shows toads can coexist with owned Amargosa toad habitat and the largemouth bass or catfish to be a nonnative predators. lack of a final master plan for the Oasis significant threat to the Amargosa toad Factor D. The Inadequacy of Existing Valley as potential threats to the toad. now or in the foreseeable future. Regulatory Mechanisms Considering the limited extent and use Mosquito fish (Gambusia affinis) have of private lands in Oasis Valley, a been introduced into waters of Oasis The petitioners claim the existing master plan would likely be Valley and occur at most sites occupied regulatory mechanisms, including unnecessary to guide development. by toads. Mosquito fish have been Nevada State law protections, have been However, on November 3, 2009, the Nye observed to prey on eggs of the arroyo ineffective in preventing the decline of County Board of County Commissioners toad (Anaxyrus (=Bufo) californicus; and mitigating the principal threats to approved the Beatty Open Space Plan Lannoo 2005, p. 399) and may also prey the species. The petitioners claim that (Stantec Consulting 2009, pp. 1–45 plus on Amargosa toad eggs. During our the State of Nevada fails to provide appendices). This final plan provides review of the status of the Amargosa adequate protection for the Amargosa the framework by which the County toad, no information was available that toad through existing statutes, may pursue more specific actions to suggests mosquito fish are important particularly regarding permit predators of toad eggs. No observations exemptions for residential groundwater preserve BLM land for the benefit of the of mosquito fish preying on toad eggs use up to 1,800 gallons per day (CBD Town of Beatty and private land for the have been reported during the 12 years and PEER 2008, pp. 20 and 28). preservation of Amargosa toad habitat of population monitoring. NDOW is Generally, domestic wells that draw less and a walking trail along the Amargosa actively working with a variety of than 1,800 gallons per day do not River. Open space in the plan is defined partners, including Nye County, to limit require a permit (NRS 534.180). as land that is not intensively developed the use and distribution of mosquito However, the NSE may require the for residential, commercial, industrial, fish in the Oasis Valley and to develop registration of domestic wells in certain or institutional use. The plan identifies alternative vector control strategies that groundwater basins that it designates 26,778 ac (10,837 ha) of land do not use mosquito fish as the control and may limit the amount of administered by the BLM as open space, agent. We have no information to groundwater extracted from a permitted which includes most of the range of the indicate that the presence of, or well to an amount below the full Amargosa toad (Stantec Consulting predation by, mosquito fish is a permitted amount under certain 2009, Appendix A). The broad goals for significant threat to the Amargosa toad conditions. No declines in groundwater the Beatty Open Space Plan as defined or that such predation will become a levels or toad numbers have been by the stakeholders include: Install threat in the foreseeable future. observed at monitored sites as a result signage and implement a community- of groundwater pumping. In our review wide education program on the Summary of Factor C in Factor A, we concluded that importance of staying out of the Based on a review of the best Amargosa toad populations have not riverbed, particularly with ATVs, to available scientific and commercial been affected and are not likely to protect the toad habitat; protect data, we find no indication of a become affected by groundwater sensitive habitats; and identify potential threat of disease. We have no extraction. Groundwater use is currently appropriate activities in Amargosa toad reason to conclude disease is currently consistent with historic use and will not habitat (Stantec Consulting 2009, p. 24). or will become a threat to the species in likely increase due to lack of growth in As a signatory to the CAS, Nye County the foreseeable future, due to an absence the area. committed to coordinate conservation of sign of disease in Amargosa toads. The Amargosa toad was classified as with the local community such as Predation by bullfrogs, crayfish, and a protected amphibian by the State of development of the open space plan mosquito fish continues to affect Nevada through an action of the Nevada (NDOW 2000, p. A–15). We conclude Amargosa toad populations but not to Board of Wildlife Commissioners in that the completion of a final open an extent that threatens the species. 1998, under authority of NAC 503.075, space plan is an important conservation Largemouth bass do generally occur in and NAC 503.090 provides that no open achievement that demonstrates the waters occupied by toads and do not season shall be designated for species of cooperative relationship and strong substantially affect the toad. Based on resident wildlife classified as protected partnership among all levels of the best scientific information available, which includes collection or possession. government, Beatty landowners, and the there is no indication that predation is Through NDOW, the State plays an Beatty community. Adoption of an open resulting in negative population wide important role in ensuring conservation space plan and BLM’s protection of effects. Completed actions prescribed in actions are achieved for this species Amargosa toad habitat through the CAS to conserve the Amargosa toad under these and other authorities. implementation of the Tonopah RMP have been shown to be successful in The Amargosa toad is designated by provide some mechanisms that reduce meeting the objectives in the CAS and the BLM Nevada State Director as a the potential threats to the species.

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Summary of Factor D after localized population extirpations. are threats to the Amargosa toad because We have reviewed the best available Therefore, we conclude that the small of the limited distribution of the toad. scientific and commercial information, range and population size of the species Major flood events have occurred in the and conclude that the Amargosa toad is is not a significant threat to the species, Amargosa River; however, Amargosa not threatened by the existence of nor do we expect the range or toads continue to occur in the river and population size to decrease in the may benefit from the disturbance inadequate regulatory mechanisms. foreseeable future due for the reasons created by such events. Although floods There are no significant threats to the stated above. may result in short-term adverse effects species, and Amargosa toad populations to the Amargosa toad, the disturbance are stable based on annual population Climate Change created by flooding events may scour estimates. The Intergovernmental Panel on dense emergent vegetation and create Factor E. Other Natural or Manmade Climate Change (IPCC) has high and increase open water pools that are Factors Affecting Its Continued confidence in predictions that extreme preferred by the species. Existence weather events, warmer temperatures, Some studies suggest that amphibian and regional drought are very likely to responses to fire and associated habitat In our 90–day finding, we concluded increase in the northern hemisphere as alteration are species-specific, that natural or manmade factors, a result of climate change (IPCC 2007, incompletely understood, and variable particularly small populations, small pp. 15–16). Climate models show the among habitats and regions (Pilliod et range size, and environmental changes southwestern United States has al. 2003, p. 165). We found no due to climate change, could exacerbate transitioned into a more arid climate of information that any wildfire occurred threats identified under Factor A. In this drought that is predicted to continue in Amargosa toad habitat in recent 12–month finding, we determined that into the next century (Seager et al. 2007, history. However, controlled burns on no significant threats were found under p. 1181). In the past 60 years, the TNC properties have resulted in positive Factor A. frequency of storms with extreme responses by toads by reducing Small Range and Population Size precipitation has increased in Nevada emergent aquatic vegetation and by 29 percent (Madsen and Figdor 2007, providing open water (ATWG 2009, p. The range of the Amargosa toad is p. 37). Changes in local southern 3) that is beneficial to the species. approximately 8,440 ac (3,416 ha) and Nevada climatic patterns cannot be The metapopulation structure of the the rangewide total number of adult definitively tied to global climate Amargosa toad allows local extirpations toads is estimated at 2,500 to 4,000 change; however, they appear to be and recolonization following stochastic toads. No reductions in the range of the consistent with IPCC-predicted patterns events. Such fluctuation in Amargosa Amargosa toad have been documented. of extreme precipitation, warmer than toad numbers has been observed after Although no historic estimates of average temperatures, and drought. prescribed burns and habitat population size are known (NDOW Information on specific effects from improvement projects that resulted in 2009, p. 1), there is also no indication climate change to the Amargosa toad disturbance to Amargosa toad habitat. that historical population levels were and to individual habitats and aquatic Drought effects on the Amargosa toad significantly higher than current levels. systems is not available, and effects are may include a reduction of surface Population data collected over the past difficult to predict and likely to vary water, prey, and wetland habitat; 12 years show 5 years of population from site to site over time. However, as however, we found no evidence of long- increases, 6 years of declines, and data detailed under Factor A, previous term effects to the Amargosa toad as a for 2000 was essentially the same as habitat improvements on the Amargosa result of drought. We expect stochastic 1999; no declines occurred over any River, Harlan-Keal, Mullin, and Spicer events to occur periodically in the consecutive 3–year period (Hobbs 2009, sites have all resulted in substantial future; however toads may benefit from p. 2). Amargosa toad data collected by positive responses by Amargosa toads. the disturbance. If the number of toads NDOW as prescribed in the CAS To meet objectives under the CAS, at a given site is reduced or toads (NDOW 2000, p. A–13), and as part of Amargosa toad conservation partners become extirpated from a site, we the mark-recapture program document have implemented design strategies and expect recolonization to occur from individual toad movements among are continuing to develop and other metapopulations. Therefore, we metapopulations and across dry desert implement appropriate strategies that do not expect stochastic events to be a uplands to remote Trespass Seep and build resiliency into habitat projects. threat to the toad in the foreseeable from the Harlan-Keal site to the river We conclude that continuing to future. south of Beatty (approximately 8 mi (13 maintain and actively manage the Contaminants km)). Amargosa toad metapopulations matrix of habitats that support the are mostly limited by habitat conditions. population of the Amargosa toad Radiation poisoning through Amargosa toads disperse among sites reduces the potential threat of climate groundwater contamination from atomic when habitat conditions are suitable, change to the toad to the extent that testing on the Nevada Test Site (NTS) and Amargosa toad numbers at any Amargosa toads will continue to occupy was cited as a threat by the petitioners given site can range from historic lows most sites currently occupied by the (CBD and PEER 2008, p. 21). The to record highs in one year (Hobbs 2009, species which will continue into the movement of radiation in groundwater pp. 1–6). Small population and small foreseeable future. In the absence of in Oasis Valley is currently being range sizes are not necessarily threats to active management, several spring sites studied. Geologic faults allow alluvial a species. With the ability to move may become degraded; however, the groundwater connection between the across large expanses of unsuitable river and larger spring sites are expected Amargosa River and the Pahute Mesa habitat, and recolonize suitable habitat to maintain their function to provide the aquifer, which includes areas used for patches, the Amargosa toad exhibits a ecological needs for the species. atomic testing (Reiner et al. 2002, p. 61). classic and strong metapopulation There have been no reports of abnormal structure. This allows the Amargosa Stochastic Events toads, reduced reproduction, or death of toad to take advantage of newly The petitioners claim stochastic multiple toads at any given site that available resources, or quickly rebound events such as drought, floods, and fires would suggest radiation or contaminant

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effects. In 2006, DOE contracted information regarding the CAS in the responds to the factor in a way that sampling of nine wells and three springs background section of this finding. causes actual impacts to the species. If in Oasis Valley wells for radioactivity Based on implementation of various there is exposure to a factor, but no (tritium) in groundwater (DOE 2006, pp. conservation actions resulting from the response, or only a positive response, 4.1–4.30). The investigators concluded CAS as discussed in the factors above, that factor is not a threat. If there is that no groundwater (wells or springs) we find that the existence and exposure and the species responds sampled downgradient of the NTS, implementation of the CAS do not pose negatively, the factor may be a threat including Oasis Valley where Amargosa a threat to the species. and we then attempt to determine how toads occur, had been impacted by NTS significant a threat it is. If the threat is Summary of Factor E nuclear test operations as of 2006. In all significant, it may drive or contribute to cases, measured tritium levels in wells We have reviewed the best available the risk of extinction of the species such and springs sampled in Oasis Valley scientific and commercial information that the species warrants listing as were below or just above the laboratory and find that small range and threatened or endangered as those terms detection limit, and three orders of population size, climate change, are defined by the Act. This does not magnitude less than the U.S. stochastic events, or contaminants are necessarily require empirical proof of a Environmental Protection Agency not significant threats to the species. threat. The combination of exposure and established maximum contaminant level While we have no Amargosa toad some corroborating evidence of how the for drinking water. Because the Town of population estimates prior to the mid- species is likely impacted could suffice. Beatty uses groundwater from the Oasis 1990s, the best available information The identification of factors that could Valley, monitoring for potential indicates that the historic range of the impact a species negatively is not contaminants in groundwater will toad approximates its current range. sufficient to compel a finding that continue for human health. Based on Based on 12 years of population listing is appropriate; we require the available information, there is no monitoring data, toad populations evidence that these factors are operative indication that radioactive groundwater estimates are stable. The range and threats that act on the species to the is a concern for the Amargosa toad, or population numbers will not decrease in point that the species meets the that radioactive groundwater from the the foreseeable future in consideration definition of threatened or endangered Pahute Mesa aquifer will become a of the habitat improvements identified under the Act. threat to the toad in the foreseeable in Factor A and overall absence of We analyzed the potential threats to future. significant threats to the species. While the Amargosa toad including: Private The petitioners also assert that climate change effects are mostly land development resulting in habitat pollution of unknown levels on private uncertain, we conclude that sufficient loss and water use; groundwater land is a threat to the Amargosa toad resiliency has been provided to the toad development/extraction; habitat (CBD and PEER 2008, p. 25). During through project that established of a degradation including overgrowth of monitoring of toad populations from matrix of habitats and metapopulations. vegetation; grazing and trampling by 1998 to 2009 as prescribed in the CAS, Stochastic events will continue but will livestock; recreation and OHV activity; no environmental evidence was benefit the toads by providing invasive plants species; disease; observed to suggest that contaminants disturbance or result in recolonization predation by nonnative bullfrogs, from private lands are affecting from adjacent populations. Monitoring crayfish, and fishes; lack of regulatory Amargosa toads. Although Amargosa and oversight by the signatories of the control of residential groundwater toads have not been examined to assess CAS, ATWG, and local landowners will withdrawal; inadequate protection on contaminant levels, no Amargosa toad continue and detect any impacts to the privately owned land including lack of developmental anomalies or die-offs toad that may result from contaminants. a final master plan for the Oasis Valley; have been reported. Due to the high Therefore, we conclude that other small range and population size; climate level of monitoring and close proximity natural or manmade factors are not change; stochastic events; and to residents who consistently affecting the continued existence of the contaminants. communicate with the Service on the Amargosa toad, now or in the We found that habitat loss as a result Amargosa toad, we believe any foreseeable future. of development on private land is not a substantial threat to the Amargosa toad, detrimental environmental effects Finding would be observed and reported. and we do not believe that the toad Therefore, we conclude that As required by the Act, we considered population is declining rangewide. In contaminants are not a threat to the the five factors in assessing whether the addition, we found no indication that toad. We do not anticipate that Amargosa toad is threatened or the human population will increase contaminants will become a threat to endangered throughout all or a beyond historic levels, and we do not the toad in the foreseeable future due to significant portion of its range. We anticipate an increase in future use of our expectation that the metapopulation examined the best scientific and groundwater to support new residential structure will persist and monitoring commercial information available development in the Town of Beatty and will continue which would detect any regarding the past, present, and future Oasis Valley. Based on the volume, effects of contaminants at the level of threats faced by the Amargosa toad. We timing, and location of groundwater the individual or population. reviewed the petition, information withdrawal; historic use of The petitioners claim that the CAS available in our files and other available groundwater, and water-level failed to protect Amargosa toads and published and unpublished measurements, we concluded that water increase toad populations. The CAS is a information, and we consulted with use and development in Oasis Valley voluntary and non-regulatory recognized Amargosa toad experts and are not a substantial threat to the agreement. As discussed above, the CAS other Federal, State, local agencies, and Amargosa toad. Overgrowth of has proven to be an effective tool in nongovernment organizations. In vegetation in aquatic habitats is an furthering the long term conservation of considering what factors might ongoing management concern for the the species, as well as reducing or constitute threats, we must look beyond Amargosa toad because it can result in eliminating the threats to the species. the mere exposure of the species to the degraded habitat. However, various Please see our discussion for specific factor to determine whether the species tools, such as habitat improvement and

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enhancement projects, have been and nonnative predators. Therefore, we changed conditions from climate change continue to be implemented to manage conclude that disease or predation are in the future. No environmental this potential threat to the Amargosa not significant threats to the Amargosa evidence has been observed to suggest toad. Continued implementation of toad now or in the foreseeable future. that contaminants from private lands are conservation actions as outlined in the The Amargosa toad is classified as a affecting Amargosa toads. We believe CAS by regulatory agencies and a protected amphibian by the State of any detrimental environmental effects coalition of partners has reduced and Nevada under authority of NAC would be observed and reported to the continues to minimize threats to the 503.075, and it is also designated as a Service or NDOW. Continued Amargosa toad. Light to moderate BLM sensitive species in Nevada. implementation of conservation actions ungulate grazing and trampling are not Completion of a final open space plan as outlined in the 2000 CAS by NDOW, a substantial threat to the toad and for the Oasis Valley, approved by the other signatories, and a coalition of likely provide some benefit to the Nye County Board of Commissioners, partners has reduced and continues to habitat for the Amargosa toad. Excessive indicates a cooperative conservation minimize threats to the Amargosa toad. ungulate grazing in Amargosa toad effort among all levels of government, We conclude that other natural or habitat is localized and mostly occurs in Beatty landowners, and the Beatty manmade factors are not significant the Amargosa River channel south of community to protect Amargosa toad threats to the Amargosa toad now or in Beatty. Use by OHVs, particularly in wet habitat. the foreseeable future. areas (along the Amargosa River), can be The current range of the Amargosa Based on our review of the best an issue, especially when Amargosa toad is approximately the same, and available scientific and commercial toad eggs and tadpoles are present. possibly larger, than its historical range information pertaining to the five However, efforts have been undertaken as a result of conservation efforts factors, we find that the threats are not (e.g., rerouting of OHV races out of accomplished by the various entities of sufficient imminence, intensity, or habitat) or are proposed to reduce OHV working to ensure long-term magnitude to indicate that the Amargosa use in these areas so that OHV use is not conservation of the Amargosa toad. In toad is in danger of extinction a significant threat to the species. In summary, we concluded that inadequate (endangered), or likely to become addition, no spring sites have been regulatory mechanisms are not a threat endangered within the foreseeable identified that are substantially affected to the Amargosa toad now or in the future (threatened). Therefore, we find by OHV activity. Efforts to remove salt foreseeable future. that listing the Amargosa toad as a cedar and other nonnative, invasive The range and small population size threatened or endangered species is not plants from the Amargosa River of the toad have characterized the warranted. watershed have occurred since 2003. species during modern times with no Evaluation of Distinct Population Efforts will continue to remove salt significant changes. Current monitoring Segment (DPS) cedar and replace it with native shrubs efforts will continue and inform the and trees, which may improve toad ATWG and others of any habitat Having determined that the Amargosa habitat and increase toad numbers. We improvement needs for the species. toad does not meet the definition of a conclude that the present or threatened Climate change is likely to continue for threatened or endangered species, we destruction, modification, or the foreseeable future, but there is must next consider whether there are curtailment of toad habitat or its range substantial uncertainty as to how any segments within the population that is not a significant threat to the climate change will affect the Amargosa meet the Service’s DPS policy. Under Amargosa toad now or in the foreseeable toad and its habitat. We found no the DPS policy (61 FR 4722; February 7, future. information to suggest that climate 1996), three elements are considered in We found no information that change will result in an altered the decision concerning the overcollection or overutilization for landscape to the extent that it will establishment and classification of a commercial, recreational, scientific, or negatively affect Amargosa toads. possible DPS. These are applied educational purposes is a threat or will Stochastic events (such as floods, fire similarly for additions to or removal become a threat to the species in the and drought) have occurred on the from the Federal List of Endangered and future. Therefore, we find landscape where Amargosa toads occur Threatened Wildlife. These elements overutilization for commercial, in Oasis Valley. The metapopulation include: recreational, scientific, or educational structure of the Amargosa toad would (1) The discreteness of a population in purposes does not threaten the allow local extirpations as a result of relation to the remainder of the species Amargosa toad now or in the foreseeable these stochastic events, but also to which it belongs; future. recolonization following the events. (2) The significance of the population We also found no evidence that Controlled burns have resulted in segment to the species to which it chytrid or other diseases are affecting positive responses by Amargosa toads belongs; and the Amargosa toad population, and by reducing vegetation and providing (3) The population segment’s therefore, disease does not threaten the open water. By maintaining and actively conservation status in relation to the Amargosa toad. Predation by nonnative managing the matrix of habitats that Act’s standards for listing, delisting, or species has affected, and will continue support the population of the Amargosa reclassification (i.e., is the population to affect Amargosa toad populations; toad, the uncertainties and threats of segment endangered or threatened). however, metapopulations are allowing climate change and stochastic events Under the DPS Policy, we must first the coexistence of the Amargosa toad should be reduced. The ability to determine whether the population with predators and competitors. modify site conditions where Amargosa qualifies as a DPS; this requires a Amargosa toad populations appear to be toads occur in response to finding that the population is both: (1) generally stable over the long-term, environmental changes has been Discrete in relation to the remainder of including sites where toads coexist with demonstrated as a significant the species to which it belongs; and (2) nonnative predators and competitors. management tool for Amargosa toad biologically and ecologically significant Habitat projects have been designed and conservation efforts to address various to the species to which it belongs. If the constructed to provide an advantage to threats, including stochastic events and population meets the first two criteria Amargosa toads and reduce numbers of invasive species, as well as possible under the DPS policy, we then proceed

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to the third element in the process, further consideration. We found that from the Nevada Fish and Wildlife which is to evaluate the population there is no area within the range of the Office (see ADDRESSES section). segment’s conservation status in relation Amargosa toad where the potential Author(s) to the Act’s standards for listing as an threat of development or groundwater endangered or threatened species. The withdrawal is significantly concentrated The primary authors of this notice are DPS evaluation in this finding concerns or may be substantially greater than in staff with the Nevada Fish and Wildlife the Amargosa toad that we were other portions of the range. Some sites Office, Las Vegas. petitioned to list as threatened or including Crystal and Lower Indian Authority endangered. Springs may become overgrown with The authority for this section is Discreteness vegetation and cause the site to become unsuitable and require rehabilitation. section 4 of the Endangered Species Act Under the DPS Policy, a population Cattle and feral burros may provide the of 1973, as amended (16 U.S.C. 1531 et segment of a vertebrate taxon may be necessary disturbance to improve and seq.). considered discrete if it satisfies either maintain Amargosa toad habitat but may Dated: July 9, 2010 one of the following conditions: cause short-term overuse of some sites. Wendi Weber, (1) It is markedly separated from other Use by OHVs may cause localized Acting Director, Fish and Wildlife Service. populations of the same taxon as a impacts but we do not anticipate these consequence of physical, physiological, [FR Doc. 2010–17647 Filed 7–19– 10; 8:45 am] effects to result in population declines. BILLING CODE S ecological, or behavioral factors. Although nonnative toad predators such Quantitative measures of genetic or as crayfish, bullfrogs, and mosquito fish morphological discontinuity may occur throughout much of the range of DEPARTMENT OF THE INTERIOR provide evidence of this separation. (2) the toad and likely impact the toad to It is delimited by international some extent, we have found that toads Fish and Wildlife Service governmental boundaries within which have, and will continue to coexist with differences in control of exploitation, these predators. There is no indication 50 CFR Part 17 management of habitat, conservation that stochastic events, climate change, status, or regulatory mechanisms exist [Docket No. FWS–R8–ES–2009–0073] or environmental contaminants [92210–1117–0000–B4] that are significant in light of section differentially affect any given site. 4(a)(1)(D) of the Act. On the basis of our review, we found RIN 1018–AW54 no areas within the species’ range where Markedly Separated From Other Endangered and Threatened Wildlife threats are geographically concentrated. Populations of the Taxon and Plants; Revised Critical Habitat for The species is characterized by As described previously (see Species Brodiaea filifolia (Thread-leaved metapopulations across its range which Information above), the Amargosa toad Brodiaea) is characterized by metapopulations allows for an individual site to be across its range. Individual Amargosa extirpated and become repopulated AGENCY: Fish and Wildlife Service, toads move among these from neighboring populations. The Interior. metapopulations, and there is no factors affecting the species are ACTION: Proposed rule; reopening of indication that physical, physiological, essentially uniform throughout its comment period. ecological, or behavioral barriers exist range, indicating that no portion of the SUMMARY: We, the U.S. Fish and that would render any portions of the Amargosa toad’s range warrants further Wildlife Service (Service), announce the species’ range markedly separate from consideration of possible threatened or reopening of the public comment period other portions. Furthermore, we have no endangered status. on our December 8, 2009, proposed quantitative data such as genetic We do not find that the Amargosa revised designation of critical habitat for information to suggest any portions of toad is in danger of extinction now, nor Brodiaea filifolia (thread-leaved the species to be markedly separate from is it likely to become endangered within brodiaea) under the Endangered Species others. Therefore, we conclude there are the foreseeable future throughout all or Act of 1973, as amended. We also no portions of the species’ range that a significant portion of its range. announce the availability of a draft meet the discreteness criterion of the Therefore, listing the Amargosa toad as economic analysis (DEA) and an Service’s DPS policy. Since both threatened or endangered under the Act amended required determinations discreteness and significance are is not warranted throughout all or a section of the proposal. We are required to satisfy the DPS policy, we significant portion of its range at this reopening the comment period for an have determined that there are no time. additional 30 days to allow all populations of the Amargosa toad that We request that you submit any new interested parties an opportunity to qualify as a DPS under our policy. As information concerning the status of, or comment on all of the above. If you a result, no further analysis under the threats to, the Armargosa toad to our submitted comments previously, you do DPS policy is necessary. Nevada Fish and Wildlife Office (see ADDRESSES section) whenever it not need to resubmit them because we Significant Portion of the Range becomes available. New information have already incorporated them into the Having determined that the Amargosa will help us monitor the Amargosa toad public record and will fully consider toad does not meet the definition of a and encourage its conservation. If an them in our final determination. threatened or endangered species, we emergency situation develops for the DATES: We will consider public must next consider whether there are Amargosa toad, we will act to provide comments received on or before August any significant portions of the range immediate protection. 19, 2010. Any comments that we receive where the Amargosa toad is in danger of after the closing date may not be References Cited extinction or is likely to become considered in the final decision on this endangered in the foreseeable future. A complete list of references cited is action. We considered whether any portions available on the Internet at http:// ADDRESSES: You may submit comments of the Amargosa toad’s range warrant www.regulations.gov and upon request by one of the following methods:

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Federal eRulemaking Portal: http:// conservation of B. filifolia that we designation that are not appropriately www.regulations.gov. Follow the should include in the final critical identified or considered in our instructions for submitting comments habitat designation and why. Include economic analysis. on Docket No. FWS–R8–ES–2009–0073. information on the distribution of these (9) The potential effects of climate U.S. mail or hand-delivery: Public essential features and what special change on this species and its habitat Comments Processing, Attn: FWS–R8– management considerations or and whether the critical habitat may ES–2009–0073; Division of Policy and protections may be required to maintain adequately account for these potential Directives Management; U.S. Fish and or enhance them. effects. Wildlife Service; 4401 N. Fairfax Drive, • Areas we proposed as revised (10) Whether we could improve or Suite 222; Arlington, VA 22203. critical habitat that do not contain the modify our approach to designating We will post all comments on http:// physical and biological features critical habitat in any way to provide for www.regulations.gov. This generally essential to the conservation of the greater public participation and means that we will post any personal species and that should therefore not be understanding, or to better information you provide us (see the designated as critical habitat. accommodate concerns and comments. Public Comments section below for • Areas not occupied at the time of If you submitted comments or more information). listing that are essential for the information on the proposed revised FOR FURTHER INFORMATION CONTACT: Jim conservation of the species and why. rule (74 FR 64930) during the initial Bartel, Field Supervisor, U.S. Fish and (3) Land use designations and current comment period from December 8, Wildlife Service, Carlsbad Fish and or planned activities in the areas 2009, to February 8, 2010, please do not Wildlife Office, 6010 Hidden Valley occupied by the species, and their resubmit them. These comments are Road, Suite 101, Carlsbad, CA 92011; possible impacts on proposed revised included in the public record for this telephone (760) 431–9440; facsimile critical habitat. rulemaking, and we will fully consider (760) 431–5901. Persons who use a (4) How the proposed revised critical them in the preparation of our final telecommunications device for the deaf habitat boundaries could be refined to determination. Our final determination (TDD) may call the Federal Information more closely circumscribe landscapes concerning the revised critical habitat Relay Service (FIRS) at (800) 877–8339. identified as containing the physical for Brodiaea filifolia will take into SUPPLEMENTARY INFORMATION: and biological features essential to the consideration all written comments and conservation of the species. any additional information we receive Public Comments (5) Any foreseeable economic, during both comment periods. On the We intend that any final action national security, or other relevant basis of public comments, we may, resulting from the proposed rule is impacts that may result from during the development of our final based on the best scientific data designating particular areas as critical determination, find that areas within the available and will be accurate and as habitat, and, in particular, any impacts proposed revised critical habitat effective as possible. Therefore, we to small entities (e.g., small businesses designation do not meet the definition request comments or information from or small governments), and the benefits of critical habitat, that some other concerned government agencies, of including or excluding areas from the modifications to the described the scientific community, industry, or proposed revised designation that boundaries are appropriate, or that areas any other interested parties during this exhibit these impacts. may or may not be appropriate for reopened comment period on our (6) Whether any specific subunits exclusion under section 4(b)(2) of the proposed rule to revise critical habitat being proposed as revised critical Act. for Brodiaea filifolia, which we habitat should be excluded under You may submit your comments and published in the Federal Register on section 4(b)(2) of the Act, and whether materials concerning our proposed rule, December 8, 2009 (74 FR 64930), the the benefits of potentially excluding any the associated DEA, and our amended DEA of the proposed designation, and particular area outweigh the benefits of required determinations section by one the amended required determinations including that area in critical habitat. of the methods listed in the ADDRESSES provided in this document. We are (7) The likelihood of adverse social section. particularly interested in comments reactions to the designation of critical If you submit a comment via http:// concerning: habitat, and how the consequences of www.regulations.gov, your entire (1) The reasons why we should or such reactions, if they occur, would submission—including any personal should not revise the critical habitat relate to the conservation of the species identifying information—will be posted under section 4 of the Endangered and regulatory benefits of the proposed on the website. If your submission is Species Act of 1973, as amended (Act) revised critical habitat designation. made via a hard copy that includes (16 U.S.C. 1531 et seq.), including (8) Information on the extent to which personal identifying information, you whether there are threats to Brodiaea the description of potential economic may request at the top of your document filifolia from human activity, the type of impacts in the DEA is complete and that we withhold this information from human activity causing these threats, accurate, and specifically: public review. However, we cannot the degree of which can be expected to • Whether there are incremental costs guarantee that we will be able to do so. increase due to the designation, and of critical habitat designation (e.g., costs We will post all hard copy comments on whether that increase in threats attributable solely to the designation of http://www.regulations.gov. Please outweighs the benefit of designation, critical habitat for Brodiaea filifolia) that include sufficient information with your such that the designation of critical have not been appropriately identified comments to allow us to verify any habitat is not prudent. or considered in our economic analysis, scientific or commercial information (2) Specific information on: including costs associated with future you include. • Areas that provide habitat for administrative costs or project Comments and materials we receive, Brodiaea filifolia that we did not discuss modifications that may be required by as well as supporting documentation in our proposed revised critical habitat Federal agencies related to section 7 used to prepare this notice, will be rule (December 8, 2009; 74 FR 64930). consultation under the Act; and available for public inspection at http:// • Areas containing the physical and • Whether there are incremental www.regulations.gov, or by biological features essential to the economic benefits of critical habitat appointment, during normal business

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hours, at the U.S. Fish and Wildlife conservation of the species. If the incremental impacts likely to occur if Service, Carlsbad Fish and Wildlife proposed rule is made final, section 7 of we finalize the proposed revised critical Office (see FOR FURTHER INFORMATION the Act will prohibit destruction or habitat. CONTACT). You may obtain copies of the adverse modification of critical habitat The 2010 DEA (made available with proposed revision of critical habitat (74 by any activity funded, authorized, or the publication of this notice and FR 64930) and the DEA on the Internet carried out by any Federal agency. referred to as the DEA throughout this at http://www.regulations.gov at Docket Federal agencies proposing actions document unless otherwise noted) No. FWS–R8–ES–2009–0073, or by mail affecting critical habitat must consult estimates the foreseeable economic from the Carlsbad Fish and Wildlife with us on the effects of their proposed impacts of the proposed revised critical Office (see FOR FURTHER INFORMATION actions under section 7(a)(2) of the Act. habitat designation for Brodiaea filifolia. CONTACT). The economic analysis identifies Draft Economic Analysis potential incremental costs as a result of Background Section 4(b)(2) of the Act requires that the proposed revised critical habitat It is our intent to discuss only those we designate or revise critical habitat designation, which are those costs topics directly relevant to the proposed based upon the best scientific data attributed to critical habitat over and revised designation of critical habitat for available after taking into consideration above those baseline costs coextensive Brodiaea filifolia in this notice. For the economic impact, impact on with listing. It also discusses the more information on previous Federal national security, and any other relevant benefits of critical habitat designation. actions concerning B. filifolia, see the impact of specifying any particular area These benefits are primarily presented 2005 designation of critical habitat as critical habitat. in a qualitative manner. The DEA published in the Federal Register on We prepared a DEA (Industrial describes economic impacts of B. December 13, 2005 (70 FR 73820), see Economics, Incorporated (IEc) 2010) filifolia conservation efforts associated the proposed revised designation of that identifies and analyzes the with the following categories of activity: critical habitat published in the Federal potential impacts associated with the (1) Residential and commercial Register on December 8, 2009 (74 FR proposed revised designation of critical development; (2) transportation, utility, 64930), or contact the Carlsbad Fish and habitat for Brodiaea filifolia that we and flood control projects; and (3) Wildlife Office (see FOR FURTHER published in the Federal Register on public and conservancy lands INFORMATION CONTACT). December 8, 2009 (74 FR 64930). The management. The Center for Biological Diversity DEA looks retrospectively at costs Baseline economic costs are those that filed a complaint in the U.S. District incurred since the October 13, 1998 (63 result from listing and other Court for the Southern District of FR 54975), listing of B. filifolia as conservation efforts for Brodiaea California on December 19, 2007, threatened. The DEA quantifies the filifolia. The baseline costs are assuming challenging our designation of critical economic impacts of all potential a 7 percent discount rate and are habitat for Brodiaea filifolia and conservation efforts for B. filifolia; some identified in Appendix E of the DEA Navarretia fossalis (Center for Biological of these costs will likely be incurred (IEc 2010, Appendix E–1). Impacts Diversity v. United States Fish and regardless of whether or not we finalize associated with baseline protection for Wildlife Service et al., Case No. 07–CV– the revised critical habitat rule. The B. filifolia within the proposed revised 2379–W–NLS). This lawsuit challenged economic impact of the proposed critical habitat designation are estimated the validity of the information and revised critical habitat designation is to be $5.31 million to $8.16 million reasoning we used to exclude areas from analyzed by comparing a ‘‘without (approximately $486,000 to $720,000 the 2005 critical habitat designation for critical habitat’’ scenario with a ‘‘with annualized) over the next 20 years B. filifolia. We reached a settlement critical habitat’’ scenario. The ‘‘without (2011–2030). Baseline impacts to agreement on July 25, 2008, in which critical habitat’’ scenario represents the development are estimated to be $4.60 we agreed to reconsider critical habitat baseline for the analysis, considering million to $7.46 million. This represents designation for B. filifolia. The protections already in place for the approximately 83 to 89 percent of the settlement stipulated that we submit a species (for example, under the Federal total baseline impacts. Baseline impacts proposed revised critical habitat listing and other Federal, State, and to transportation, utility, and flood designation for B. filifolia to the Federal local regulations). The baseline, control activities are estimated to be Register for publication by December 1, therefore, represents the costs incurred $657,000. This represents 2009, and submit a final critical habitat regardless of whether critical habitat is approximately 8 to 12 percent of the designation to the Federal Register for designated. The ‘‘with critical habitat’’ total baseline impacts. Baseline impacts publication by December 1, 2010. We scenario describes the incremental to public and conservancy lands published the proposed revised critical impacts associated specifically with the management are estimated to be habitat designation in the Federal designation of critical habitat for the $49,500. This represents approximately Register on December 8, 2009 (74 FR species. The incremental conservation 0.6 to 0.9 percent of the total baseline 64930). efforts and associated impacts are those impacts. Section 3 of the Act defines critical not expected to occur absent the critical Incremental impacts associated with habitat as the specific areas within the habitat designation for B. filifolia. In the proposed revised critical habitat geographical area occupied by a species, other words, the incremental costs are designation are estimated to be $425,000 at the time it is listed in accordance those attributable solely to the to $529,000 (approximately $37,500 to with the Act, on which are found those designation of critical habitat above and $46,700 annualized), assuming a 7 physical or biological features essential beyond the baseline costs; these are the percent discount rate, over the next 20 to the conservation of the species and costs we may consider in the final years (2011–2030). These impacts are which may require special management designation of critical habitat relative to due to a reduction in land value considerations or protection, and areas that may be excluded under following the designation of critical specific areas outside the geographical section 4(b)(2) of the Act. The analysis habitat for Brodiaea filifolia and the cost area occupied by a species at the time looks retrospectively at baseline impacts of section 7 consultation for pipeline it is listed, upon a determination that incurred since the species was listed, maintenance activities (IEc 2010, p. ES– such areas are essential for the and forecasts both baseline and 9). Incremental impacts to development

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are estimated to be $207,000 to E.O. 12630 (Takings), and the Unfunded affected within particular types of $311,000. This represents Mandates Reform Act (2 U.S.C. 1501 et economic activities, such as residential approximately 49 to 59 percent of the seq.). and commercial development. In order total incremental impacts. No to determine whether it is appropriate Regulatory Flexibility Act (5 U.S.C. 601 incremental costs related to public and for our agency to certify that the rule et seq.) conservancy lands management are would not have a significant economic expected from the designation (IEc Under the Regulatory Flexibility Act impact on a substantial number of small 2010, p. ES–10). (5 U.S.C. 601 et seq., as amended by the entities, we considered each industry or The DEA considers both economic Small Business Regulatory Enforcement category individually. efficiency and distributional effects. In Fairness Act (SBREFA) of 1996), If we finalize the proposed revised the case of habitat conservation, whenever an agency is required to critical habitat designation, Federal efficiency effects generally reflect the publish a notice of rulemaking for any agencies must consult with us under ‘‘opportunity costs’’ associated with the proposed or final rule, it must prepare section 7 of the Act if their activities commitment of resources to comply and make available for public comment may affect designated critical habitat. with habitat protection measures (such a regulatory flexibility analysis that Incremental impacts to small entities as lost economic opportunities describes the effect of the rule on small may occur as a direct result of a associated with restrictions on land entities (i.e., small businesses, small required consultation under section 7 of use). The DEA also addresses how organizations, and small government the Act. Additionally, even in the potential economic impacts are likely to jurisdictions), as described below. absence of a Federal nexus, indirect be distributed, including an assessment However, no regulatory flexibility incremental impacts may still result of any local or regional impacts of analysis is required if the head of an because, for example, a city may request habitat conservation and the potential agency certifies the rule will not have a project modifications due to the effects of conservation activities on significant economic impact on a designation of critical habitat via its government agencies, private substantial number of small entities. review under the California businesses, and individuals. The DEA Based on our DEA of the proposed Environmental Quality Act (CEQA). measures lost economic efficiency revised designation, we provide the Consultations to avoid the destruction associated with residential and analysis for our determination whether or adverse modification of critical commercial development and public or not the proposed rule would result in habitat would be incorporated into the projects and activities, such as a significant economic impact on a existing consultation process because economic impacts on transportation, substantial number of small entities. Brodiaea filifolia is federally listed as a utility, flood control projects, Federal Based on comments we receive, we may threatened species under the Act. lands, small entities, and the energy revise this determination as part of a In the DEA, we evaluated the industry. Decisionmakers can use this final rulemaking. potential economic effects on small information to assess whether the effects According to the Small Business business entities resulting from of the revised designation might unduly Administration (SBA), small entities implementation of conservation actions burden a particular group or economic include small organizations, such as related to the proposed revision to sector. independent nonprofit organizations; critical habitat for Brodiaea filifolia (IEc small governmental jurisdictions, 2010, Appendix A, pp. 1–7). The Required Determinations–—Amended including school boards and city and analysis was based on the estimated In our proposed rule published in the town governments that serve fewer than incremental impacts associated with the Federal Register on December 8, 2009 50,000 residents; and small businesses proposed rulemaking as described in (74 FR 64930), we indicated that we (13 CFR 121.201). Small businesses sections 3 through 5 of the DEA. The would defer our determination of include manufacturing and mining SBREFA analysis evaluated the compliance with several statutes and concerns with fewer than 500 potential for economic impacts related Executive Orders until the information employees, wholesale trade entities to several categories, including: (1) concerning potential economic impacts with fewer than 100 employees, retail Residential and commercial of the designation and potential effects and service businesses with less than $5 development; (2) transportation, utility, on landowners and stakeholders became million in annual sales, general and and flood control projects; and (3) available in the DEA. We have now heavy construction businesses with less management of public and conservation made use of the DEA to make these than $27.5 million in annual business, lands (IEc 2010, Appendix A, p. 4). determinations. special trade contractors doing less than The DEA found there are no In this document, we affirm the $11.5 million in annual business, and incremental impacts related to the information in our December 8, 2009, agricultural businesses with annual management of public and conservation proposed rule (74 FR 64930) concerning sales less than $750,000. To determine lands. Impacts to small entities are only Executive Order (E.O.) 12866 if potential economic impacts to these anticipated due to residential and (Regulatory Planning and Review), E.O. small entities are significant, we commercial development. No impacts 13132 (Federalism), E.O. 12988 (Civil considered the types of activities that are anticipated due to transportation, Justice Reform), the Paperwork might trigger regulatory impacts under utility, and flood control because the Reduction Act, the National this designation as well as types of incremental costs are associated with Environmental Policy Act, and the project modifications that may result. In activities conducted by the Metropolitan President’s memorandum of April 29, general, the term significant economic Water District of Southern California, 1994, ‘‘Government-to-Government impact is meant to apply to a typical which is not a small business or Relations with Native American Tribal small business firm’s business government as defined by the Small Governments’’ (59 FR 22951). However, operations. Business Administration (IEc 2010, based on the DEA data, we are To determine if the proposed revised Appendix A, p. 4). amending our required determinations designation of critical habitat for The DEA estimated that there will be concerning the Regulatory Flexibility Brodiaea filifolia would affect a approximately 23 landowners impacted Act (5 U.S.C. 601 et seq.), E.O. 13211 substantial number of small entities, we over the next 20 years with an (Energy Supply, Distribution, or Use), considered the number of small entities incremental impact estimated to be

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$311,000 assuming a 7 percent discount finds that none of these outcomes are that receive Federal funding, assistance, rate. This impact is related to the possible in the context of this analysis or permits, or that otherwise require decrease in land value for areas (IEc 2010, Appendix A, pp. 7–8). The approval or authorization from a Federal designated as critical habitat and may be DEA concludes that no incremental agency for an action that may be borne by the current landowner in the impacts on the production, distribution, indirectly impacted by the designation form of percent of average value lost. In or use of energy are forecast associated of critical habirat. However, the legally a regional context, we looked at the specifically with this rulemaking (IEc binding duty to avoid destruction or number of homeowners in each county 2010, Appendix A, p. 7). Therefore, adverse modification of critical habitat as a representation of the total number designation of critical habitat is not rests squarely on the Federal agency. of property owners in Los Angeles, San expected to lead to any adverse Furthermore, to the extent that non- Bernardino, Riverside, Orange, and San outcomes (such as a reduction in Federal entities are indirectly impacted Diego Counties. There are electricity production or an increase in because they receive Federal assistance approximately 443,000 to over 1.6 the cost of energy production or or participate in a voluntary Federal aid million homeowners in these counties distribution), and a Statement of Energy program, the Unfunded Mandates (IEc 2010, Appendix A, p. 5). The 23 Effects is not required. Reform Act would not apply, nor would landowners that may be impacted Unfunded Mandates Reform Act (2 critical habitat shift the costs of the large represent approximately less than 1 U.S.C. 1501 et seq.) entitlement programs listed above onto percent of the total number of State governments. landowners in Los Angeles, San In accordance with the Unfunded Bernardino, Riverside, Orange, and San Mandates Reform Act, the Service (b) As discussed in the DEA of the Diego Counties. We do not believe that makes the following findings: proposed revised designation of critical this represents a substantial number of (a) This rule will not produce a habitat for Brodiaea filifolia, we do not landowners. Additionally, we evaluated Federal mandate. In general, a Federal believe that this rule will significantly the decrease in property value by mandate is a provision in legislation, or uniquely affect small governments looking at the average parcel value by statute, or regulation that would impose because it will not produce a Federal county and the percent of the value lost. an enforceable duty upon State, local, or mandate of $100 million or greater in We found that the land value lost Tribal governments, or the private any year; that is, it is not a ‘‘significant ranged from 0.02 to 17.3 percent of the sector, and includes both ‘‘Federal regulatory action’’ under the Unfunded total value (IEc 2010, Appendix A, pp. intergovernmental mandates’’ and Mandates Reform Act. The DEA 5–6). To some individual property ‘‘Federal private sector mandates.’’ concludes that incremental impacts may owners this may represent a significant These terms are defined in 2 U.S.C. occur due to conservation costs impact, but on a regional scale we do 658(5)–(7). ‘‘Federal intergovernmental associated with residential and not believe an incremental impact of mandate’’ includes a regulation that commercial development, and with $311,000 in reduced land value ‘‘would impose an enforceable duty transportation, utility, and flood control represents a significant economic upon State, local, or Tribal projects; however, these are not impact. As a result of this analysis, we governments,’’ with two exceptions. expected to affect small governments find that the designation of critical First, it excludes ‘‘a condition of federal (IEc 2010, Appendix A, p. 4). habitat for Brodiaea filifolia will not assistance.’’ Second, it also excludes ‘‘a Incremental impacts associated with have a significant economic impact on duty arising from participation in a these activities are expected to be borne a substantial number of small entities. voluntary Federal program,’’ unless the by the Transportation Corridor Agencies In summary, we considered whether regulation ‘‘relates to a then-existing and San Diego Gas and Electric, which the proposed revised designation would Federal program under which are not considered small governments. result in a significant economic impact $500,000,000 or more is provided Consequently, we do not believe that on a substantial number of small annually to State, local, and Tribal the proposed revised critical habitat entities. For the above reasons and governments under entitlement designation would significantly or ’’ based on currently available authority, if the provision would uniquely affect small government ‘‘increase the stringency of conditions of information, we certify that, if entities. As such, a Small Government assistance’’ or ‘‘place caps upon, or promulgated, the proposed revised Agency Plan is not required. critical habitat for Brodiaea filifolia will otherwise decrease, the Federal not have a significant economic impact Government’s responsibility to provide Executive Order 12630 — Takings on a substantial number of small funding’’ and the State, local, or Tribal entities. Therefore, an initial regulatory governments ‘‘lack authority’’ to adjust In accordance with E.O. 12630 flexibility analysis is not required. accordingly. ‘‘Federal private sector (‘‘Government Actions and Interference mandate’’ includes a regulation that with Constitutionally Protected Private Executive Order 13211—Energy Supply, ‘‘would impose an enforceable duty Property Rights’’), we analyzed the Distribution, and Use upon the private sector, except (i) a potential takings implications of On May 18, 2001, the President issued condition of Federal assistance; or (ii) a proposing revised critical habitat for E.O. 13211 on regulations that duty arising from participation in a Brodiaea filifolia in a takings significantly affect energy supply, voluntary Federal program.’’ implications assessment. Critical habitat distribution, and use. Executive Order Critical habitat designation does not designation does not affect landowner 13211 requires agencies to prepare impose a legally binding duty on non- actions that do not require Federal Statements of Energy Effects when Federal government entities or private funding or permits, nor does it preclude undertaking certain actions. The Office parties. The only regulatory effect is that development of habitat conservation of Management and Budget’s guidance under section 7 of the Act, which programs or issuance of incidental take for implementing this Executive Order requires that Federal agencies must permits to permit actions that do require outlines nine outcomes that may ensure that their actions do not destroy Federal funding or permits. The constitute ‘‘a significant adverse effect’’ or adversely modify critical habitat. proposed revised critical habitat for B. when compared to no regulatory action. Designation of critical habitat may filifolia does not pose significant takings As discussed in Appendix A, the DEA indirectly impact non-Federal entities implications for the above reasons.

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References Cited Based on the status review, we will status review to be complete and based A complete list of all references we issue a 12–month finding on the on the best available scientific and cited in the proposed rule and in this petition, which will address whether commercial information, we request document is available on the Internet at the petitioned action is warranted, as information on the giant Palouse http://www.regulations.gov or by provided in section 4(b)(3)(B) of the Act. earthworm (GPE) from governmental contacting the Carlsbad Fish and DATES: To allow us adequate time to agencies, Native American Tribes, the Wildlife Office (see FOR FURTHER conduct this review, we request that we scientific community, industry, and any INFORMATION CONTACT). receive information on or before other interested parties. We seek September 20, 2010. Please note that if information on: Authors you are using the Federal eRulemaking (1) The species’ biology, range, and The primary authors of this notice are Portal (see ADDRESSES section, below), population trends, including: staff members of the Carlsbad Fish and the deadline for submitting an (a) Habitat requirements for feeding, Wildlife Office (see FOR FURTHER electronic comment is Eastern Time on breeding, and sheltering; INFORMATION CONTACT). this date. (b) Genetics and taxonomy; ADDRESSES: You may submit Authority (c) Historical and current range information by one of the following including distribution patterns; The authority for this action is the methods: (d) Historical and current population • Endangered Species Act of 1973, as Federal eRulemaking Portal: http:// levels, and current and projected trends; amended (16 U.S.C. 1531 et seq.). www.regulations.gov. In the box that and Dated: July 7, 2010 reads ‘‘Enter Keyword or ID,’’ enter the (e) Past and ongoing conservation docket number for this notice, which is Eileen Sobeck, measures for the species and/or its docket number FWS–R1–ES–2010– habitat. Acting Assistant Secretary for Fish and 0023. Check the box that reads ‘‘Open Wildlife and Parks. (2) The factors that are the basis for for Comment/Submission,’’ and then making a listing determination for a [FR Doc. 2010–17708 Filed 7–19– 10; 8:45 am] click the Search button. You should species under section 4(a) of the BILLING CODE S then see an icon that reads ‘‘Submit a Endangered Species Act of 1973, as Comment.’’ Please ensure that you have amended (Act) (16 U.S.C. 1531 et seq.), found the correct rulemaking before DEPARTMENT OF THE INTERIOR which are: submitting your comment. • (a) The present or threatened Fish and Wildlife Service U.S. mail or hand-delivery: Public Comments Processing, Attn: FWS–R1– destruction, modification, or curtailment of its habitat or range; 50 CFR Part 17 ES–2010–0023; Division of Policy and Directives Management; U.S. Fish and (b) Overutilization for commercial, [Docket No. FWS–R1–ES–2010–0023] Wildlife Service; 4401 N. Fairfax Drive, recreational, scientific, or educational [MO 92210–0–0008–B2] Suite 222; Arlington, VA 22203. purposes; We will post all information received (c) Disease or predation; Endangered and Threatened Wildlife on http://www.regulations.gov. This (d) The inadequacy of existing and Plants; 90-Day Finding on a generally means that we will post any regulatory mechanisms; or Petition To List the Giant Palouse personal information you provide us (e) Other natural or manmade factors Earthworm (Driloleirus americanus) as (see the Information Solicited section affecting its continued existence. Threatened or Endangered below for more details). (3) Information on grassland or other AGENCY: Fish and Wildlife Service, After the date specified in DATES, natural habitats within the range of the Interior. you must submit information directly to species including distribution of known the Field Office (see FOR FURTHER ACTION: Notice of petition finding and or potential habitats; information on INFORMATION CONTACT section below). initiation of status review. ongoing or future activities in potential Please note that we might not be able to GPE habitat; information on life history SUMMARY: We, the U.S. Fish and address or incorporate information that of the GPE and evidence supporting its Wildlife Service (Service), announce a we receive after the above requested endogeic (earthworms that live in 90–day finding on a petition to list the date. mineral soil and consume organic giant Palouse earthworm (Driloleirus FOR FURTHER INFORMATION CONTACT: Ken matter within the soil or at the soil-litter americanus) as threatened or Berg, Manager, Washington Fish and interface) or anecic (earthworms that endangered under the Endangered Wildlife Office, 510 Desmond Dr. SE, inhabit deep vertical burrows and Species Act of 1973, as amended, (Act) Suite 102, Lacey, WA 98503; by emerge at night to consume relatively and to designate critical habitat. Based telephone (360–753–9440); or by fresh plant detritus on the surface) life- on our review, we find that the petition facsimile (360–753–9405). If you use a history mode; and information on other presents substantial scientific or telecommunications device for the deaf native or nonnative earthworm commercial information indicating that (TDD) please call the Federal distributions in the range of the species. listing the giant Palouse earthworm as Information Relay Service (FIRS) at If, after the status review, we threatened or endangered may be 800–877–8339. determine that listing the GPE is warranted. Therefore, with the SUPPLEMENTARY INFORMATION: warranted, we will propose critical publication of this notice, we are habitat (see definition in section 3(5)(A) initiating a review of the status of the Request for Information of the Act), under section 4 of the Act, species to determine if listing the giant When we make a finding that a to the maximum extent prudent and Palouse earthworm is warranted. To petition presents substantial determinable at the time we propose to ensure that this status review is information indicating that listing a list the species. Therefore, within the comprehensive, we are requesting species may be warranted, we are geographical range currently occupied scientific and commercial data and required to promptly review the status by the GPE, we request data and other information regarding this species. of the species (status review). For the information on:

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(1)What may constitute ‘‘physical or the petitioned action may be warranted. of its range, or in the Palouse bioregion biological features essential to the We are to base this finding on as a significant portion of its range. The conservation of the species,’’ information provided in the petition, petition clearly identified itself as such (2)where these features are currently supporting information submitted with and included the requisite identification found, and the petition, and information otherwise information for the petitioners, as (3)whether any of these features may available in our files. To the maximum required by 50 CFR 424.14(a). require special management extent practicable, we are to make this The July 1, 2009, petition was considerations or protection. finding within 90 days of our receipt of accompanied by a letter from Samuel W. In addition, we request data and the petition and publish our notice of James, an earthworm taxonomist, and information on ‘‘specific areas outside the finding promptly in the Federal additional information about GPE and the geographical area occupied by the Register. threats to the species that was not species’’ that are ‘‘essential to the Our standard for substantial scientific available to the Service during our conservation of the species.’’ Please or commercial information within the evaluation of the August 30, 2006, provide specific comments and Code of Federal Regulations (CFR) with petition. In an August 5, 2009, letter to information as to what, if any, critical regard to a 90–day petition finding is the petitioners, we responded that we habitat you think we should propose for ‘‘that amount of information that would had reviewed the information presented designation if the species is proposed lead a reasonable person to believe that in the petition and determined that for listing, and why such habitat meets the measure proposed in the petition issuing an emergency regulation the requirements of section 4 of the Act. may be warranted’’ (50 CFR 424.14(b)). temporarily listing the species under Please include sufficient information If we find that substantial scientific or section 4(b)(7) of the Act was not with your submission (such as scientific commercial information was presented, warranted. We also stated that we journal articles or other publications) to we are required to promptly conduct a would not be able to further address the allow us to verify any scientific or status review, which is subsequently petition at that time, but that we would commercial information you include. summarized in our 12–month finding. complete the action when funding Submissions merely stating support became available in fiscal year 2010. Previous Federal Action(s) for or opposition to the action under This finding addresses the petition. consideration without providing On August 30, 2006, we received a supporting information, although noted, petition from three private citizens and Species Information will not be considered in making a three other parties (the Palouse Prairie The GPE was first described by Smith determination. Section 4(b)(1)(A) of the Foundation, the Palouse Audubon in 1897, based on a collection near Act directs that determinations as to Society, and Friends of the Clearwater) Pullman, Washington. At the time of whether any species is an endangered or to list the GPE (Driloleirus americanus). this collection, Smith stated: ‘‘this threatened species must be made ‘‘solely On October 9, 2007, we published a 90– species is very abundant in that region on the basis of the best scientific and day finding stating that the August 30, of the country and their burrows are commercial data available.’’ 2006, petition did not provide sometimes seen extending to a depth of You may submit your information substantial scientific or commercial over 15 feet’’ (Smith 1897, pp. 202–203). concerning this status review by one of information to indicate that listing the Although only a few specimens have the methods listed in the ADDRESSES GPE may be warranted (72 FR 57273). been collected, early descriptions section. If you submit information via On January 24, 2008, the petitioners indicate that the GPE can be as long as http://www.regulations.gov, your entire filed a lawsuit in the U.S. District Court, 3 feet (0.9 meters). Some consider the submission—including any personal Eastern District of Washington against GPE to be an endemic species (a species identifying information—will be posted the U.S. Department of the Interior and native to a particular region), that uses on the website. If you submit a the Service challenging the ‘‘not grassland sites with good soil and native hardcopy that includes personal substantial’’ decision (Palouse Prairie vegetation of the Palouse bioregion identifying information, you may Foundation et al. v. Dirk Kempthorne, et (James 1995, p. 1; Niwa et al. 2001, p. request at the top of your document that al., No. 2:08–cv–0032–FVS). On 34). The Palouse bioregion is an area of we withhold this personal identifying February 12, 2009, the District Court rolling hills and deep soil in information from public review. denied the Appellants’ motion for southeastern Washington and adjacent However, we cannot guarantee that we summary judgment and granted northwestern Idaho. will be able to do so. We will post all summary judgment in favor of the The petition acknowledges (Petition, hardcopy submissions on http:// Service, upholding the October 9, 2007, pp. 1, 3) four positively identified www.regulations.gov. determination. The U.S. Court of collections of this species in the past Information and supporting Appeals for the Ninth Circuit affirmed 110 years (Sa´nchez-de Leo´n and documentation that we received and the District Court ruling on June 14, Johnson-Maynard 2008, p. 2), compared used in preparing this finding, will be 2010. to the species being described as ‘‘very available for you to review at http:// abundant’’ in Smith (1897, p. 202). History of Current Petition www.regulations.gov, or you may make Three of the collection locations were in an appointment during normal business On July 1, 2009, we received a the Palouse River basin (one between hours at the U.S. Fish and Wildlife petition dated June 30, 2009, from Moscow and Pullman, one at Moscow Service, Washington Fish and Wildlife Friends of the Clearwater, Center for Mountain, Idaho (Petition cover letter, Office (see FOR FURTHER INFORMATION Biological Diversity, Palouse Audubon, p. 2), and one at a prairie remnant, CONTACT). Palouse Prairie Foundation, and Palouse Smoot Hill Biological Preserve Group of the Sierra Club (petitioners) (Sa´nchez-de Leo´n and Johnson-Maynard Background requesting that the GPE be listed as 2008, p. 6)). The fourth location was in Section 4(b)(3)(A) of the Act requires threatened or endangered and that the hills west of Ellensburg, Washington that we make a finding on whether a critical habitat be designated under the (Fender and McKey-Fender 1990, p. petition to list, delist, or reclassify a Act. The petitioners also requested that 358), outside of the Palouse bioregion. species presents substantial scientific or we list the GPE as a threatened or We were unable to clearly match the commercial information indicating that endangered species either in the entirety dates of collection with the exact

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locations based on information in the Evaluation of Information for this A. The Present or Threatened petition and references. However, Finding Destruction, Modification, or several GPE were collected in 1978 near Curtailment of the Species’ Habitat or Pullman and Moscow (Petition, p. 5; Section 4 of the Act (16 U.S.C. 1533) Range and its implementing regulations at 50 Johnson-Maynard 2009b, p. 2), a Petition Information on Habitat Loss collection was made in 1988 by Johnson CFR 424 set forth the procedures for adding a species to, or removing a and Fragmentation in the Palouse and Johnson at a forest clearing near Bioregion Moscow (Sa´nchez de Leo´n and Johnson- species from, the Federal Lists of The petitioners claim that the GPE is Maynard 2008, p. 2; Johnson-Maynard Endangered and Threatened Wildlife threatened by habitat conversion, loss, 2009b, p. 3), and a specimen was and Plants. A species may be determined to be an endangered or and fragmentation from agriculture and collected in 2005 by a University of urban sprawl in the Palouse region Idaho graduate student near Pullman threatened species due to one or more of the five factors described in section (Petition, pp. 1, 7). The petitioners cite (Johnson-Maynard 2009b, p. 3; Mullins Sa´nchez-de Leo´n and Johnson-Maynard 4(a)(1) of the Act: 2006, p. 1). The Ellensburg, Washington (2008, p. 1) who state that combined specimen was collected before 1990 (A) The present or threatened effects of land-use change, habitat (Petition, p. 5; Fender and McKey- destruction, modification, or fragmentation, and competitive Fender 1990, p. 358). Follow-up surveys curtailment of its habitat or range; interactions have decimated native in previous collection locations were (B) Overutilization for commercial, earthworms. James (2009, p. 1) states unsuccessful in locating the GPE. recreational, scientific, or educational that earthworms are sensitive to habitat Several of these collection locations had purposes; disturbance, and that to find indigenous major ground-disturbing activities. One earthworms one must work in site was converted into a parking lot and (C) Disease or predation; undisturbed or mildly disturbed another was ‘‘very disturbed with (D) The inadequacy of existing vegetation. Undisturbed vegetation is graveling’’ (Petition, p. 5). James (2000, regulatory mechanisms; or rare in the Palouse bioregion, since the p. 5) states that only a small portion of (E) Other natural or manmade factors native grassland habitat has been suitable earthworm habitat in the affecting its continued existence. reduced to less than 1 percent of the Columbia Basin area has been surveyed. pre-agricultural extent (Petition, p. 8; In considering what factors might Since 2005, two Driloleirus genus James 2009, p. 1; Noss et al. 1995, p. 74). constitute threats, we must look beyond earthworms have been documented, one The petition lists a dozen locations in the exposure of the species to a factor south of Moscow, Idaho, and one near the Palouse area that contain prairie to evaluate whether the species may Leavenworth, Washington (University of remnants (Petition, p. 5). In a survey of respond to the factor in a way that Idaho 2008, p. 1; Johnson-Maynard four prairie remnants and adjacent conservation reserve program (CRP) 2009b, p. 3), but the specimen could not causes actual impacts to the species. If fields (areas set aside from farming and be verified to species level due to there is exposure to a factor and the mainly planted with nonnative grasses), damage during collection. species responds negatively, the factor may be a threat and, during the Sa´nchez-de Leo´n and Johnson-Maynard The GPE is described as an anecic subsequent status review, we attempt to (2008, pp. 1, 4; Petition, p. 4) found one earthworm (James 2000, p. 5) based on determine how significant a threat it is. GPE in one prairie remnant. Sa´nchez-de its functional role in the soil ecosystem. The threat is significant, if it drives, or Leo´n and Johnson-Maynard (2008, p. 6; Anecic earthworms are the largest and contributes to, the risk of extinction of Petition, p. 5) observed that many longest lived of the three earthworm the species such that the species may remaining prairie remnants are not suitable for tillage (preparing land for types (James 2000, p. 2; 1995, p. 6), and warrant listing as threatened or the raising of crops by plowing) as they transport fresh plant material from the endangered as those terms are defined soil surface to subterranean levels. We are often steep, rocky, or contain in the Act. However, the identification shallow soil and, therefore, may also be reviewed the 2006 petition within the of factors that could impact a species context of this information. However, less suitable for earthworms (Sa´nchez- negatively may not be sufficient to de Leo´n and Johnson-Maynard 2008, p. after additional scrutiny, James (2009, p. compel a finding that the information in 3) determined that, based on its pale 6; Petition, p. 5). the petition and our files is substantial. pigmentation, the species is endogeic The information must include evidence Evaluation rather than anecic. Endogeic sufficient to suggest that these factors Information in the petition and in the earthworms live entirely in the soil and may be operative threats that act on the Service’s files indicates native habitats rely on subsurface organic matter, rather species to the point that the species may are rare and fragmented in the Palouse than transporting plant material below meet the definition of threatened or bioregion. The estimated amount of ground. Life-history forms aside, we endangered under the Act. habitat conversion varies, but several accept the characterization of the GPE as studies have determined that the In making this 90–day finding, we a species (Smith 1897, p. 203; Fender conversion of native habitats is very evaluated whether information and McKey-Fender 1990, p. 372; Fender high: 99.9 percent of Palouse prairie 1995, pp. 53–54). While the naming regarding threats to the GPE, as habitats to agriculture (Noss 1995, p. conventions of the GPE has changed presented in the petition and other 74); 94 percent of the grasslands and 97 over time, (Megascolides americanus in information available in our files, is percent of the wetlands in the Palouse 1897 (Smith 1897, p. 203); changed to substantial, thereby indicating that the bioregion have been converted to crop, Driloleirus americanus by 1990 (Fender petitioned action may be warranted. Our hay, or pasture (Black et al. 1998, pp. 9– and McKey-Fender 1990, p. 372), there evaluation of this information is 10); 21 percent of previously forested is no information provided in the presented below. lands have been converted to agriculture petition or in our files that would or urban uses; and less than 1 percent indicate scientific disagreement about of the original bunchgrass prairie habitat its status as a species. remains (Gilmore 2004, p. 3; Donovan et

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al. 2009, p. 1). Although the Palouse Petition Information on Habitat Impacts clumps of organic matter (James 2000, p. prairie grasslands habitat has been from Agriculture and Urban 9; Petition, p. 14). extensively impacted by agriculture and Development The petitioners also claim that chemicals and some soil chemistry development, very limited information The petitioners claim that earthworms effects, notably a reduction in soil pH, exists on the specific habitat needs of or their grassland habitats are negatively impact earthworms (Petition, the GPE. If the species is endemic to influenced by soil disturbance, tillage, p. 11). Soil pH is a factor that often good soil (‘‘good’’ soil was not defined in traffic, food sources, chemical and greatly affects earthworm populations, references) and native vegetation of the pesticide residues, and soil both in numbers of individuals and Palouse bioregion, as stated by some microclimate (Jennings et al. 1990, p. numbers of species; in general there are scientists (James 1995, p. 1; Niwa et al. 75; Edwards & Bohlen 1996b, pp. 283– fewer species in the more acidic soils 289; Edwards et al. 1995, pp. 200–201; 2001, p. 34), the best available below pH 5 than in more alkaline soils USDA–NRCS 2001, p. 2; Petition, p. 10). information may indicate that remaining (Edwards and Lofty 1977, p. 234). prairie remnants are not the best habitat The petitioners also claim that it is Nitrogenous fertilizers reduce pH levels for the GPE (Sa´nchez-de Leo´n and appropriate to use other earthworms as (Ma et al. 1990, p. 76). Johnson-Maynard 2008, p. 6). proxies for effects to the GPE as long as Pesticide applications can be they are similar biologically and Although its habitat may be limiting, extremely toxic to earthworms, and ecologically (Sappington et al. 2001, p. there also may be sampling challenges have indirect effects on vegetation 2869; Caro et al. 2005, p. 1821; Petition, (Edwards and Bohlen 1996a, pp. 282– that could bias available information on p. 10). GPE. Sa´nchez-de Leo´n and Johnson- 288). Like other farmers, growers in the An Australian study showed 3 years Palouse region apply many herbicides Maynard (2008, p. 7) explained that of tillage reduced earthworm burrow hand sampling methods may (Hall et al. 1999, p. 12 Table 3.08; Kellog density by nearly 90 percent (Chan et al. 2000, p. 2), including Triazine underestimate abundance of deep- 2004, p. 89; Petition, p. 10), and that (Atrazine) herbicides that may have burrowing species; while James (2009, tillage changes water infiltration into negative effects on earthworm numbers p. 3) states that, if present, an endogeic soil through burrows. In the Palouse (Edwards and Bohlen 1996a, p. 285), earthworm such as the GPE should be bioregion, tillage removes the original and which may include indirect effects moderately easy to find. topsoil, which may reduce earthworm due to their influence on weeds as a burrow densities, soil aeration, soil Petition Information on Habitat Loss source of supply of organic matter on infiltration rates, and the amount of which worms feed in the soil. Traces of and Fragmentation in the Ellensburg organic matter available to the GPE for Area Triazine herbicides were found in forage (Veseth 1986b, p. 2; Petition, pp. surface-water samples from the Palouse The GPE occurs both in the Palouse 10–11). All original topsoil has been River basin (Wagner et al. 1995, p. 15, bioregion and in central Washington removed from 10 percent of Palouse Table 4). The petition also states no-till near Ellensburg. The petitioners claim cropland, and another 60 percent of farming uses herbicides rather than cropland has lost 25 to 75 percent of the that, similar to the Palouse bioregion, tilling for weed-control, resulting in topsoil (Veseth 1986b, p. 2). the areas around Ellensburg have also higher herbicide use in no-till fields Moisture, temperature, and food than is used in tilled fields (Veseth been extensively modified by availability influence earthworm agriculture (Adolfson Associates 2005, 1986a, p. 1; Petition, p. 12). populations in general, and earthworms The petitioners claim that urban p. 2; Petition, p. 8). need the organic matter found in the sprawl and rural development Evaluation topsoil that agriculture removes (James negatively impact habitats in the 2000, pp. 1–2; Petition, p. 11). Bare soil Palouse and Ellensburg areas. The There is little information in the also increases effects of flooding, Ellensburg, Washington; Pullman petition or the Service’s files on the drought, or other weather conditions Washington; and Moscow, Idaho habitat associated with the GPE due to the lack of vegetation that buffers populations increased by approximately collected near Ellensburg. Fender and soil from extreme moisture, dryness, 76, 88, and 73 percent since 1980, McKey-Fender (1990) described the and temperature fluctuations. These respectively (Petition, p. 12; location as ‘‘in the hills west of fluctuations can temporarily or www.census.gov, figure 4). The petition Ellensburg,’’ and they noted that the permanently make soils unusable by states that urban development compacts range of GPE extends into ‘‘treeless earthworms (James 2000, pp. 1–2; soils, removes topsoil, and favors areas’’ (pp. 358, 366). The Adolfson Petition, p. 11). nonnative invasive earthworms Associates report (2005, p. 1) was Soil compaction from livestock (Petition, pp. 12–13). New road limited to the city and the urban growth grazing or farm machinery can affect construction affects remaining prairie earthworms by making burrowing and area around Ellensburg. The location of remnants (Petition, p. 13), including a feeding more difficult (James 2000, p. 9), the Ellensburg collection site is potential rerouting of U.S. 95 through a by decreasing soil pore size and thereby uncertain, and the petitioners did not large prairie remnant in the Palouse decreasing nutrient retention and bioregion. provide additional information on changing the soil food web (Niwa et al. potential GPE habitat other than the 2001, p. 7), or by favoring nonnative Evaluation Adolfson Associates report. James earthworms that prefer course soils Information in the petition and the (2000, p. 8; 1995, p. 2) confirms that rather than the fine soils preferred by Service’s files indicates that tillage may GPE collection data provides little the GPE (Fender and McKey-Fender affect earthworms, and the use of detailed information about habitat 1990, p. 364; Petition, p. 11). In addition surrogate species (such as other types, and he included the Ellensburg to soil compaction, livestock grazing earthworms) may be useful for collection site, among others, as being changes the quality and accessibility of evaluating potential effects to the GPE, generally located in what is now detrital material, decreasing organic provided such studies are conducted agricultural land, grassland, and matter available to earthworms through with appropriate scientific controls and shrubland. conversion of herbage to partly digested precautions. Caro et al. (2005, p. 1821)

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states that ‘‘for substitute species to be Degradation of the land base from attributes and it is unclear how the GPE appropriate, they should share the same topsoil losses, changes in soil structure may react to different soil acidity, which key ecological or behavioral traits that and chemistry, and reduced soil organic makes it difficult to determine if make the target sensitive to matter has resulted from tillage reduced pH is negatively impacting the environmental disturbance and the methods, crop rotations, and species. relationship between populations vital fertilization practices used historically Information in the petition and rates and level of disturbance should in the Palouse region (Jennings et al. available in the Service’s files on the match that of the target; these 1990, p. 75). There was no detailed GPE and pesticides (used here as a conditions are unlikely to pertain in information provided on agriculture general term, including herbicides, most circumstances and the use of activities in the Ellensburg area outside fungicides, and insecticides) found that substitute species to predict endangered of the urban growth area. Furthermore, some chemical applications may impact populations’ responses to disturbance is no information was provided by the earthworms, and potentially the GPE. questionable.’’ petitioner, and no information is Edwards and Bohlen (1996, p. 283) state Chan’s study (2004, p. 90) compared available in our files on the extent of that the toxicities of different chemicals effects to an anecic Megascolecidae (the livestock ranching impacts in the and pesticides on earthworms vary same family as the GPE) by assessing Palouse or Ellensburg areas. greatly, and summarize the toxicities of burrows in pastures, no-till agriculture, The petitioners cite soil chemistry many pesticides. Edwards and Bohlen one-pass tilled agriculture; and two-pass effects, notably a reduction in soil pH, (1996, p. 285; USDA-NRCS 2001, p. 6) conventional tilled agriculture (Chan as having deleterious effects on state that some herbicides, including 2004, p. 94). The effect of tillage on earthworms, and state that generally, Triazine herbicides, are moderately earthworm abundance was usually earthworms do not thrive in soils with toxic to earthworms. Carbamates are negative because tilling causes physical a pH below 5 (Petition, p. 11); however, toxic to earthworms (USDA-NRCS 2001, damage and burial of residues; our review of information on pH effects p. 6). Wagner et al. (1996, pp. 21–22) alternatively it can increase abundance to earthworms showed both supportive listed multiple pesticides used in a of some earthworm species due to and contradictory information relevant subset of the Palouse bioregion, and incorporation of residues into the soil to the petitioners’ claims. Fender (1995, found several, including Triazine (Chan 2004, p. 90). Tillage decreases p. 56) stated that Argilophiline worms (a (Atrazine), in water samples (pp. 15– burrow density, and related water tribe of earthworms that includes the 16). No information was provided in the conduction into the soil (Chan 2004, p. GPE) appear to have higher tolerance petition on the use of, or surveys of, 94). Some preservation of earthworm than Lumbricidae (night crawler pesticides in the Ellensburg area. We acknowledge several differences burrows can be achieved by adopting earthworms) for low pH (acid) soils, high clay, and resinous low-nitrogen between information presented by the conservation tillage techniques (no-till) plant litter. A tribe is a taxonomic petitioner and other information (Chan 2004, p. 96). ranking between the family and genus available in our files with regard to Since the earthworm species used in rankings in Linnaean taxonomy. claims made in the 2006 and 2009 GPE Chan’s studies was anecic, whereas the Sa´nchez-de Leo´n and Johnson-Maynard petitions. The 2006 petition stated that GPE may be endogeic, the effects of (2008, pp. 5, 7) found more nonnative the GPE was endemic to the Palouse tilling within the plow zone may not be earthworms in lower pH soils (pH 5.9 to bioregion (Petition, p. 2); the 2009 applicable to the GPE. Edwards and 6.2) in Conservation Reserve Program petition expanded the petitioned area, Bohlen (1996b, p. 215) also stated that (CRP) sites, than in prairie remnants stating that the species is native to the earthworm populations were larger in with higher pH soils (pH 6.3 to 6.6). As Columbia River basin of eastern soil that was not cultivated and had a result, the researchers question Washington and northern Idaho crops drilled directly. No-till agriculture whether it is possible that lower pH (Petition, p. 1). We evaluated the occurs on about five percent of Palouse correlates with some other non- petitioner’s 2006 claim that the species acreage considered in a survey by Hall measured soil parameter, such as may be affected by agricultural practices (1999, p. 15). More tillage destroys previous fertilizer applications and that use chemicals and result in soil burrows, while less tillage leaves resultant increased organic matter compaction, but were unable to verify residues and improves environments for (Sa´nchez-de Leo´n and Johnson-Maynard that these activities presented a threat earthworms (USDA-NRCS 2001, p. 3). 2008, p. 7). (72 FR 57273). Tillage and cultivation impacts to the Ma et al. (1990, p. 75) found different The 2009 petition includes a letter of GPE may vary depending on whether it results: the lower the pH (the more support from Samuel W. James, is has an endogeic or anecic life-history acidic), the smaller the endogeic Biodiversity Institute, University of form. James (2009, p. 3) believes the earthworm populations. The lower pH Kansas (James 2009, pp. 1-4). Mr. James GPE is endogeic, and lives entirely in resulted in larger accumulations of states that he is the only earthworm the soil, feeding on organic matter in organic matter or thatch, indicating taxonomist operating in the United varying stages of decomposition. decreased rates of decomposition and States, and has extensive experience in According to James, a large endogeic microbial mineralization (Ma et al. biodiversity inventory of earthworms. In species is probably more susceptible to 1990, p. 79). A Natural Resource one of the references provided in habitat changes than an anecic species, Conservation Service (USDA-NRCS) support of the 2006 petition, James and that agricultural conversion report states inorganic fertilizers can (1995, p. 12), stated that he can stabilizes soil organic matter at a low have a positive impact on earthworms ‘‘confidently state that nothing is known level, with only the lowest quality and due to increased biomass (USDA-NRCS of the impact of any management most resistant organic matter remaining. 2001, p. 5), but that earthworms do not practice on any Columbia River Basin Because of these low levels of organic thrive in soils with a pH below 5 native earthworm species.’’ material, the GPE could starve, even if (USDA-NRCS 2001, p. 2; Edwards and For purposes of the 2009 petition, it could survive mechanical Lofty 1977, p. 234). In summary, studies James now believes the GPE is endogeic disturbances and chemicals associated regarding earthworms and soil pH and not anecic as he previously thought, with agricultural conversion (James indicate that earthworm response may and states that, ‘‘I have no doubt that 2009, p. 4). vary with species, location, or other Driloeirus americanus is in danger of

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extinction’’ (James 2009, p. 1). James that we have very little specific information to document that disease or also states that ‘‘this re-evaluation is information on the GPE in our files. predation presents a threat to the significant to the petition to list D. Nonetheless, in conclusion, we find that continued existence of the GPE. americanus, because a large endogeic the information provided in the D. The Inadequacy of Existing species is probably more susceptible to petition, as well as other information in Regulatory Mechanisms habitat changes than an anecic’’ (James our files, presents substantial scientific 2009, p. 3). This finding fully considers or commercial information indicating Information Provided in the Petition the new information presented by the that the petitioned action may be The petition claims that there are no petitioner. Our review for purposes of a warranted due to the present or Federal, State, or local regulations that 90–day finding is limited to a threatened destruction, modification, or specifically protect the GPE or its determination of whether the curtailment of the species’ habitat or habitat. The Washington Department of information in the petition meets the range. Fish and Wildlife identifies the GPE as ‘‘substantial information’’ threshold. We B. Overutilization for Commercial, a species of concern (WDFW 2009, p. 1), do not conduct additional research at Recreational, Scientific, or Educational although this status does not provide this point, nor do we subject the Purposes any regulatory protection for the petition to rigorous critical review. In summary, our review and the 2009 The petition did not identify species. The petition indicates that the petition indicate there has been overutilization for commercial, Palouse Subbasin Management Plan, extensive agricultural conversion in the recreational, scientific, or educational developed as part of the Northwest Palouse bioregion, and the petition purposes as a potential threat to the Power and Conservation Council review states that similar conversion has taken GPE. In our October 9, 2007, 90–day process for the subbasins in the place in the central Washington area. finding (72 FR 57273) we acknowledged Columbia River Basin, contains three Other threats identified by the petitioner that three GPE individuals were objectives (7, 8, and 15) that are relevant include habitat fragmentation, urban inadvertently killed during research to the GPE and its habitat. Objective 7 development, pesticides, and soil activities. Researchers have yet to find is designed to protect native grassland compaction. The petitioner presents a an efficient survey method that reliably habitat within the Palouse subbasin; reasonable argument that the GPE may finds the GPE without damaging it however, this objective is voluntary in be exposed to the above threats in the (Johnson-Maynard 2009b, p. 7). While nature and does not provide specific entirety of its range or in what may we continue to acknowledge mortality protection for the GPE. Objective 8 is constitute a significant portion of its of several GPE individuals due to designed to restore lost or degraded range (Petition, p. 3). Although the scientific collection, we do not have grassland habitat within the Palouse species’ responses to these threats are population size information indicating subbasin by identifying feasible still undeterminable at this time due to that the loss of three individuals or the opportunities for restoration. This the lack of specific information on the sampling risk in the future may be a objective does not define ‘‘feasible species’ biology and habitat needs, threat to the continued existence of the opportunities,’’ and appears to rely on a James (2009, p. 3) provides a logical species. Therefore, we do not have voluntary approach, which provides no explanation as to why a species like the substantial information indicating that regulatory protection for GPE habitat. GPE may be susceptible to these threats. overutilization for commercial, Objective 15 is designed to increase The limited and fragmented remnant recreational, scientific, or educational wildlife habitat value on agricultural deep-soil habitats in the Palouse purposes may present a threat to the land for focal species; however, it is also bioregion, and the potential impacts to continued existence of the GPE. voluntary in nature and does not provide specific protection for the GPE any GPE from ongoing agriculture C. Disease or Predation activities, including tilling, may or its habitat. negatively impact the species. However, The petition did not identify any The petition states that the Forest the magnitude of these threats could threats to the GPE related to disease or Service, Bureau of Land Management, differ, depending on whether the predation; however, we found some Fish and Wildlife Service, species exhibits an anecic or endogeic relevant information available in our Environmental Protection Agency, and life history. The species may be affected files. Hendrix and Bohlen (2002, p. 802) NOAA Fisheries signed a memorandum by pesticides, although based on the state that imported nonnative of understanding (MOU) agreeing to best available information, we are earthworms may be vectors for plant or implement the Interior Columbia Basin unable to verify or quantify these threats animal pathogens or viruses, but do not Strategy. The MOU commits the at this time. correlate this potential threat to the agencies to use information developed In James (2000, p. 10), the author GPE. Although James (1995, p. 11) states during the Interior Columbia Basin identifies certain research and that predation on earthworms can be Ecosystem Management Project in monitoring priorities, including accentuated by tilling the soil and future planning processes; however, experimentally testing hypotheses of the exposing earthworms to bird predators, neither the MOU nor the accompanying mechanisms through which habitat the correlation to the GPE is strategy specifically mention the GPE or disturbance, exotic species invasions, inconclusive given uncertainties create any regulatory mechanisms to and other human-caused factors may regarding its anecic or endogeic life- provide protections for its habitat affect native (earthworm) species, history form. Because of these (petition p. 15). beginning with those species potentially uncertainties, we are unable to According to the petition, the threatened such as the GPE. In his 2009 determine if the amount of predation regulation of earthworms imported into letter, James states that in his opinion, would rise to the level of a threat to the the United States is based on the the GPE is in danger of extinction species at this time. Other impacts from Federal Plant Pest Act (7 U.S.C. 150aa– (James 2009, p. 1); we have no other agricultural tilling are discussed in more 150jj, May 23, 1957, as amended 1968, expert opinion or conflicting detail under Factor A. In summary, we 1981, 1983, 1988 and 1994), under information in our files in this regard. conclude neither the petition nor which the Animal and Plant Health We acknowledge there are gaps in the information in our files presents Inspection Service controls imports data presented by the petitioner, and substantial scientific or commercial containing soil that might carry

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pathogens. The petition cited Hendrix (nonnative) earthworms can invade new important grassland ecosystems of the and Bohlen (2002, p. 809), who state, ‘‘In habitats, change the ecological soil Palouse region, native prairie remnants the absence of pathogens, it appears that functions, and displace native species and CRP set asides. any earthworm species may be (Hendrix and Bohlen 2002, p. 805; One invasive earthworm species imported, that is, there is no specific Petition, p. 16). Earthworm populations (Aporrectodea trapezoides) made up 90 consideration of earthworms as invasive are dominated by nonnative earthworms percent of the total earthworm density organisms.’’ The petition claims that in agricultural sites and native prairie in the paired comparison study regulation has not been effective in remnants in the Palouse region (Fauci (Sa´nchez-de Leo´n and Johnson-Maynard reducing the importation of nonnative and Bezdicek 2002, p. 257; Sa´nchez-de 2008, p. 4). The researchers also earthworm species to the United States Leo´n and Johnson-Maynard 2008, pp. 7– observed that A. trapezoides may from other parts of the world, which 8; Petition p. 16). Habitat conversion compete with GPE for food in upper poses a direct threat to the existence of favors invasion of nonnative earthworm layers of soil (Sa´nchez-de Leo´n and the GPE and other native earthworm species that are better adapted to a Johnson-Maynard 2008, p. 6). One GPE species (see Factor E for more disturbed or degraded environment was found at one of the four prairie information on impacts from nonnative (Petition, p. 16; James 1995, p. 5). Some remnant study sites used for the study. earthworms). exotic earthworm species may be highly The researchers state that the rarity of competitive with a deeper-dwelling native earthworms in their prairie site Evaluation species like the GPE. James (2000, p. 2) surveys lends support for the theory that Information in the petition and states that invasive earthworm species native earthworms are being replaced by available in Service files indicates that present a potential threat to the GPE. He nonnative earthworms, even in visibly there are limited regulatory mechanisms describes the loss of a deep-dwelling intact remnants of fragmented habitats that may be protective of the GPE or its Illinois earthworm species as an (Sa´nchez-de Leo´n and Johnson-Maynard habitat. As we found in Factor A, the example, and states that the GPE is 2008, p. 6). petition provided sufficient information probably endogeic (deep-dwelling) as The researchers also present several indicating the species may be well (James 2009, p. 3). scenarios regarding the GPE and threatened by destruction, modification, We acknowledge that there are nonnative earthworms: The GPE may be or curtailment of its habitat or range substantial weaknesses in extrapolating able to coexist with some species; some from agricultural conversion, habitat data from an Illinois species to the GPE, nonnative species may be replacing the fragmentation, urban development, since we have no information that GPE; or the GPE may remain only in pesticides, and soil compaction. Below, would indicate the responses of the lower quality prairie remnants (shallow in Factor E, we discuss how the Illinois species and the GPE to invasive rocky soils) (Sa´nchez-de Leo´n and petitioner provided sufficient earthworms would be similar. However, Johnson-Maynard 2008, p. 6). The information indicating nonnative since we have no conflicting researchers propose that a combination earthworm species impacts or information in our files on this potential of extensive habitat fragmentation in the competition may also present a threat to threat to the GPE, we are deferring to the Palouse region, low habitat quality of the GPE. Since we determine that the expert’s opinion for purposes of this 90– remaining prairie remnants, and petition provided sufficient information day finding. possible competitive interactions with indicating that both habitat loss and The petitioners also describe the exotic earthworms, decimated GPE introduction of nonnative earthworms existence of introduced annual grasses populations at their study sites may be a threat to the GPE, the and noxious weeds in the Palouse (Sa´nchez-de Leo´n and Johnson-Maynard inadequacy of regulatory mechanisms to region, including: Kentucky bluegrass, 2008, p. 6). The Service agrees with the petitioner control these factors may also be a crops, cheatgrass, and yellow-star thistle that native plant communities in the threat. Although the magnitude of this (Gilmore 2004, pp. 1–87), and assume Palouse are susceptible to invasion by threat is presently indeterminable based these plants do not provide the same nonnative plants (Gilmore 2004, pp. 1- on uncertainties regarding the species’ quality and quantity of earthworm 26; James 2000, p. 8), that domination biology, habitat needs, and its anecic or forage as native vegetation (Petition, p. 17). The petitioners also claim that of deep-soil sites by Kentucky bluegrass endogeic life history, we find that the climate change resulting in changing is common, and that in shallow soils information provided in the petition, as weather patterns will impact the GPE cheatgrass and yellow-star thistle weeds well as other information in our files, (Petition, p. 17), since the amount of compete with native grasslands. presents substantial scientific or annual precipitation is a parameter that However, we have no information from commercial information indicating that influences GPE habitat (Fender & the petitioner or our files that the petitioned action may be warranted McKey-Fender 1990, p. 366). documents a threat to the GPE from due to the inadequacy of existing these nonnative plants. regulatory mechanisms. Evaluation Although the petition expresses a E. Other Natural or Manmade Factors Information in the petition and concern about future climate change Affecting the Species’ Continued available in our files indicates that other and its effects on the GPE, it does not Existence natural or manmade factors, including present information or data in this potential nonnative earthworm species regard. The Service evaluated Information Provided in the Petition impacts or competition may present a information available in our files related The petitioners claim that the GPE is threat to the GPE. In a recent study in to this potential threat. Lawler and threatened by invasive nonnative the Palouse region of southeastern Mathias (2007, pp. 19–20) investigated earthworms (Petition, p. 1). In a 3–year Washington and northern Idaho, possible climate change impacts to study of earthworms in the Palouse Sa´nchez-de Leo´n and Johnson-Maynard vascular plants, stating that plants may region of eastern Washington and Idaho, compared four paired sites of prairie mature earlier creating potential Sa´nchez-de Leo´n and Johnson-Maynard remnants and CRP lands (2008, pp. 2, mismatches between pollinators and (2008, p. 8) found a dominance of 8). The main purpose of the study was plants, parasites and hosts, and invasive exotic earthworms in both to characterize and compare native and herbivores and food sources; increased native and nonnative grasslands. Exotic exotic earthworm populations in two summer temperatures and decreased

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summer precipitation may lead to Finding petitioned action is warranted after we changes in distribution of some plant On the basis of our determination have completed a thorough status species; sagebrush steppe and under section 4(b)(3)(A) of the Act, we review of the species, which is grasslands may contract while dry find that the petition presents conducted following a substantial 90– forests and woodlands expand; and substantial scientific or commercial day finding. Because the Act’s standards plant distribution changes will depend information indicating that listing the for 90–day and 12–month findings are in part on plant water-use efficiencies. GPE throughout its entire range may be different, as described above, a Based on the best available information, warranted. This finding is based on substantial 90–day finding does not it is difficult to predict how or if future information provided under factors A, D mean that the 12–month finding will changes in growth or distribution of and E. result in a warranted finding. vegetation will affect local conditions Because we have found that the References Cited for weeds, native vegetation, or both. It petition presents substantial is also unclear how or if this will have information indicating that listing the A complete list of references cited is an adverse or beneficial impact on the GPE may be warranted, we are initiating available on the Internet at http:// GPE or its habitat. a status review to determine whether www.regulations.gov and upon request listing the GPE under the Act is We acknowledge that the magnitude from the Washington Fish and Wildlife warranted. The petition asserts that the of the above threats is uncertain because Office (see FOR FURTHER INFORMATION GPE is also threatened or endangered CONTACT). we lack specific information on the throughout a significant portion of its species’ biology and habitat needs. In range. Accordingly, a significant portion Author addition, the species’ exposure and of the range analysis will be conducted The primary authors of this notice are response would likely differ, depending during the status review if we determine the staff members of the Eastern on whether it exhibits an anecic or that listing the species in its entire range Washington Field Office. endogeic life history. However, we find is not warranted. that the information provided in the The ‘‘substantial information’’ Authority: The authority for this action is petition, as well as other information in standard for a 90–day finding differs the Endangered Species Act of 1973, as our files, presents substantial scientific from the Act’s ‘‘best scientific and amended (16 U.S.C. 1531 et seq.). or commercial information indicating commercial data’’ standard that applies Dated: July 2, 2010 that the petitioned action may be to a status review to determine whether warranted due to other natural or man- a petitioned action is warranted. A 90– Wendi Weber made factors, in particular due to the day finding does not constitute a status Acting Director, U.S. Fish and Wildlife Service presence of nonnative invasive review under the Act. In a 12–month [FR Doc. 2010–17709 Filed 7–19–10; 8:45 am] earthworms. finding, we will determine whether a BILLING CODE 4310–55–S

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Notices Federal Register Vol. 75, No. 138

Tuesday, July 20, 2010

This section of the FEDERAL REGISTER between 8 a.m. and 8 p.m., Eastern Chequamegon-Nicolet National Forest, contains documents other than rules or Standard Time, Monday through Friday. 4978 Hwy 8 West, Laona, WI 54541. proposed rules that are applicable to the SUPPLEMENTARY INFORMATION: The Visitors are encouraged to call ahead to public. Notices of hearings and investigations, meeting is open to the public. The 715–674–4481 to facilitate entry into the committee meetings, agency decisions and building. rulings, delegations of authority, filing of following business will be conducted: petitions and applications and agency (1) Introductions of all committee FOR FURTHER INFORMATION CONTACT: statements of organization and functions are members, replacement members and Penny McLaughlin, RAC coordinator, examples of documents appearing in this Forest Service personnel. (2) Selection USDA, Chequamegon-Nicolet National section. of a chairperson by the committee Forest, 4978 Hwy 8 West, Laona, WI members. (3) Receive materials 54541; (715) 674–4481; E-mail explaining the process for considering [email protected]. DEPARTMENT OF AGRICULTURE and recommending Title II projects; and Individuals who use (4) Public Comment. Persons who wish telecommunication devices for the deaf Forest Service to bring related matters to the attention (TDD) may call the Federal Information Southwest Mississippi Resource of the Committee may file written Relay Service (FIRS) at 1–800–877–8339 Advisory Committee statements with the Committee staff between 8 a.m. and 8 p.m., Eastern before or after the meeting. Standard Time, Monday through Friday. AGENCY: Forest Service, USDA. Dated: July 13, 2010. SUPPLEMENTARY INFORMATION: The ACTION: Notice of meeting. David Chabreck, meeting is open to the public. The Designated Federal Officer. following business will be conducted: SUMMARY: The Southwest Mississippi [FR Doc. 2010–17610 Filed 7–19–10; 8:45 am] (1) Introductions of all committee Resource Advisory Committee will meet members, replacement members and BILLING CODE 3410–11–P in Meadville, Mississippi. The Forest Service personnel; (2) Receive committee is meeting as authorized materials explaining the process for under the Secure Rural Schools and DEPARTMENT OF AGRICULTURE considering and recommending Title II Community Self-Determination Act projects; (3) Selection of a chairperson (Pub. L. 110–343) and in compliance Forest Service by the committee members; and (4) with the Federal Advisory Committee Public Comment. Persons who wish to Act. The purpose is to hold the first Chequamegon Resource Advisory bring related matters to the attention of meeting of the 2010 committee. Committee the Committee may file written DATES: statements with the Committee staff The meeting will be held on AGENCY: Forest Service, USDA. August 5, 2010, and will begin at 6 p.m. before or after the meeting. ACTION: Notice of meeting. ADDRESSES: The meeting will be held at Dated: July 13, 2010. the Franklin County Public Library, 106 SUMMARY: The Nicolet Resource Paul I. V. Strong, First Street, Meadville, MS. Written Advisory Committee will meet in Forest Supervisor. comments should be sent to David Crandon, Wisconsin. The committee is [FR Doc. 2010–17676 Filed 7–19–10; 8:45 am] Chabreck, Homochitto National Forest, meeting as authorized under the Secure BILLING CODE 3410–11–P 1200 Highway 184 East, Meadville, MS Rural Schools and Community Self- 39653. Comments may also be sent via Determination Act (Pub. L. 110–343) e-mail to [email protected], or via and in compliance with the Federal DEPARTMENT OF COMMERCE facsimile to 601–384–2172. Advisory Committee Act. The purpose All comments, including names and is to hold the first meeting of the newly International Trade Administration addresses when provided, are placed in formed committee. the record and are available for public DATES: The meeting will be held on [A–570–894] inspection and copying. The public may August 10, 2010, and will begin at 9:30 Certain Tissue Paper Products From inspect comments received at a.m. the People’s Republic of China: Notice Homochitto National Forest, 1200 ADDRESSES: The meeting will be held at Highway 184 East, Meadville, MS of Continuation of Antidumping Duty the Forest County Courthouse, County Order 39653. Visitors are encouraged to call Board Room, 200 East Madison Street, ahead to 601–384–5876 to facilitate Crandon, WI. Written comments should AGENCY: Import Administration, entry into the building. be sent to Penny McLaughlin, International Trade Administration, FOR FURTHER INFORMATION CONTACT: Chequamegon-Nicolet National Forest, Department of Commerce. David Chabreck, Designated Federal 4978 Hwy 8 West, Laona, WI 54541. SUMMARY: As a result of the Officer, USDA, Homochitto National Comments may also be sent via e-mail determinations by the Department of Forest, 1200 Highway 184 East, to [email protected], or via Commerce (the Department) and the Meadville, MS 39653; (601) 384–5876; facsimile to 715–674–2545. International Trade Commission (ITC) E-mail [email protected]. All comments, including names and that revocation of the antidumping duty Individuals who use addresses when provided, are placed in order on certain tissue paper products telecommunication devices for the deaf the record and are available for public (tissue paper) from the People’s (TDD) may call the Federal Information inspection and copying. The public may Republic of China (PRC) would be likely Relay Service (FIRS) at 1–800–877–8339 inspect comments received at to lead to continuation or recurrence of

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dumping and of material injury to an than one-half (0.5) inch. Subject tissue at the time of entry for all imports of industry in the United States within a paper may be flat or folded, and may be subject merchandise. reasonably foreseeable time, the packaged by banding or wrapping with The effective date of continuation of Department is publishing notice of the paper or film, by placing in plastic or this order will be the date of publication continuation of this antidumping duty film bags, and/or by placing in boxes for in the Federal Register of this Notice of order. distribution and use by the ultimate Continuation. Pursuant to section DATES: Effective Date: July 20, 2010. consumer. Packages of tissue paper 751(c)(2) of the Act, the Department subject to the order may consist solely intends to initiate the next five-year FOR FURTHER INFORMATION CONTACT: of tissue paper of one color and/or style, review of this finding not later than June Rebecca Trainor or Brandon Farlander, or may contain multiple colors and/or 2015. AD/CVD Operations, Import styles. These five-year (sunset) reviews and Administration, International Trade The merchandise subject to the order this notice are in accordance with Administration, U.S. Department of does not have specific classification sections 751(c) and 777(i)(1) of the Act Commerce, 14th Street & Constitution numbers assigned to them under the and 19 CFR 351.218(f)(4). Avenue, NW., Washington, DC 20230; Harmonized Tariff Schedule of the telephone: (202) 482–4929 or (202) 482– Dated: July 15, 2010. United States (HTSUS). Subject Ronald K. Lorentzen, 0182, respectively. merchandise may be under one or more SUPPLEMENTARY INFORMATION: Deputy Assistant Secretary for Import of several different subheadings, Administration. including: 4802.30, 4802.54, 4802.61, Background [FR Doc. 2010–17704 Filed 7–19–10; 8:45 am] 4802.62, 4802.69, 4804.31.1000, On February 1, 2010, the Department BILLING CODE 3510–DS–P 4804.31.2000, 4804.31.4020, initiated and the ITC instituted a sunset 4804.31.4040, 4804.31.6000, 4804.39, review of the antidumping duty order 4805.91.1090, 4805.91.5000, on tissue paper from the PRC, pursuant DEPARTMENT OF COMMERCE 4805.91.7000, 4806.40, 4808.30, to section 751(c) of the Tariff Act of 4808.90, 4811.90, 4823.90, 4802.50.00, 1930, as amended (the Act). See also National Oceanic and Atmospheric 4802.90.00, 4805.91.90, 9505.90.40. The Notice of Antidumping Duty Order: Administration tariff classifications are provided for Certain Tissue Paper Products from the convenience and customs purposes; Evaluation of State Coastal People’s Republic of China, 70 FR 16223 however, the written description of the Management Programs and National (March 30, 2005). scope of the order is dispositive.1 Estuarine Research Reserves The Department conducted an Excluded from the scope of the order expedited sunset review of this order. AGENCY are the following tissue paper products: : National Oceanic and As a result of its review, the Department (1) Tissue paper products that are Atmospheric Administration (NOAA), found that revocation of the coated in wax, paraffin, or polymers, of Office of Ocean and Coastal Resource antidumping duty order would be likely a kind used in floral and food service Management, National Ocean Service, to lead to continuation or recurrence of applications; (2) tissue paper products Commerce. dumping, and notified the ITC of the that have been perforated, embossed, or ACTION: Notice of Intent to Evaluate. magnitude of the margins likely to die-cut to the shape of a toilet seat, i.e., prevail were the order to be revoked. SUMMARY: The NOAA Office of Ocean disposable sanitary covers for toilet See Certain Tissue Paper Products from and Coastal Resource Management seats; (3) toilet or facial tissue stock, the People’s Republic of China: Final (OCRM) announces its intent to evaluate towel or napkin stock, paper of a kind Results of Expedited Sunset Review, 75 the performance of the Elkhorn Slough used for household or sanitary FR 32910 (June 10, 2010) (Final (California) National Estuarine Research purposes, cellulose wadding, and webs Results). Reserve. of cellulose fibers (HTSUS On July 8, 2010, the ITC published its The National Estuarine Research 4803.00.20.00 and 4803.00.40.00). determination pursuant to section Reserve evaluation will be conducted 751(c) of the Act, that revocation of the Continuation of the Order pursuant to sections 312 and 315 of the CZMA and regulations at 15 CFR Part antidumping duty order on tissue paper As a result of the determinations by 921, Subpart E and Part 923, Subpart L. from the PRC would be likely to lead to the Department and the ITC that Evaluation of a National Estuarine continuation or recurrence of material revocation of the antidumping duty Research Reserve requires findings injury to an industry in the United order would be likely to lead to concerning the extent to which a State States within a reasonably foreseeable continuation or recurrence of dumping has met the national objectives, adhered time. See Certain Tissue Paper Products and material injury to an industry in the to its Reserve final management plan from China; Determinations, 75 FR United States, pursuant to section approved by the Secretary of Commerce, 39277 (July 8, 2010). 751(d)(2) of the Act, the Department and adhered to the terms of financial hereby orders the continuation of the Scope of the Order assistance awards funded under the antidumping duty orders on tissue The tissue paper products covered by CZMA. paper from the PRC. the order are cut-to-length sheets of U.S. Customs and Border Protection Each evaluation will include a site tissue paper having a basis weight not will continue to collect antidumping visit, consideration of public comments, exceeding 29 grams per square meter. duty cash deposits at the rates in effect and consultations with interested Tissue paper products subject to the Federal, State, and local agencies and order may or may not be bleached, dye- 1 On January 30, 2007, at the direction of U.S. members of the public. A public colored, surface-colored, glazed, surface Customs and Border Protection, the Department meeting will be held as part of the site decorated or printed, sequined, added the following HTSUS classifications to the visit. When the evaluation is completed, crinkled, embossed, and/or die cut. The antidumping duty/countervailing duty module for OCRM will place a notice in the Federal tissue paper: 4802.54.3100, 4802.54.6100, and tissue paper subject to the order is in the 4823.90.6700. However, we note that the six-digit Register announcing the availability of form of cut-to-length sheets of tissue classifications for these numbers were already listed the Final Evaluation Findings. Notice is paper with a width equal to or greater in the scope. hereby given of the date of the site visit

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for the listed evaluation, and the date, Burns Harbor, Indiana, area, within the FOR FURTHER INFORMATION CONTACT: Kim local time, and location of the public Chicago Customs and Border Protection Iverson, Public Information Officer, meeting during the site visits. port of entry (FTZ Docket 56–2009, filed 4055 Faber Place Drive, Suite 201, North DATES: Dates and Times: The Elkhorn 12/14/2009); Charleston, SC 29405; telephone: (843) Slough (California) National Estuarine Whereas, notice inviting public 571–4366; e-mail: Research Reserve evaluation site visit comment was given in the Federal [email protected]. Register (74 FR 69329, 12/31/2009) and will be held August 2–6, 2010. One SUPPLEMENTARY INFORMATION: Under the the application has been processed public meeting will be held during the Magnuson-Stevens Reauthorized Act, pursuant to the FTZ Act and the Board’s week. The public meeting will be held the SSC is the body responsible for regulations; and, on Tuesday, August 3, 2010, at 6 p.m. reviewing the Council’s scientific at the Elkhorn Slough National Whereas, the Board adopts the findings and recommendations of the materials. The SSC will discuss ABC Estuarine Research Reserve, control rules for stocks which do not Administration Building Conference examiner’s report, and finds that the requirements of the FTZ Act and the have peer reviewed quantitative stock Room, 1700 Elkhorn Road, Watsonville, assessments and develop ABC California. Board’s regulations are satisfied, and that the proposal is in the public recommendations. ADDRESSES: Copies of the State’s most interest; Meeting Schedule: recent performance reports, as well as Now, therefore, the Board hereby OCRM’s evaluation notification and orders: August 16, 2010, 1 p.m. - 6 p.m. supplemental information request The application to expand FTZ 152 is August 17, 2010, 8:30 a.m. - 1 p.m. letters to the State, are available upon approved, subject to the Act and the Although non-emergency issues not request from OCRM. Written comments Board’s regulations, including Section contained in this agenda may come from interested parties regarding this 400.28. Signed at Washington, DC, this before this group for discussion, those Program are encouraged and will be 8th day of July 2010. accepted until 15 days after the public issues may not be the subject of formal meeting. Please direct written comments Ronald K. Lorentzen, action during this meeting. Action will to Kate Barba, Chief, National Policy Deputy Assistant Secretary for Import be restricted to those issues specifically and Evaluation Division, Office of Administration, Alternate Chairman, Foreign- listed in this notice and any issues Ocean and Coastal Resource Trade Zones Board. arising after publication of this notice Management, NOS/NOAA, 1305 East- Attest: that require emergency action under West Highway, 10th Floor, N/ORM7, Andrew McGilvray, section 305(c) of the Magnuson-Stevens Silver Spring, Maryland 20910. Executive Secretary. Fishery Conservation and Management FOR FURTHER INFORMATION CONTACT: Kate [FR Doc. 2010–17707 Filed 7–19–10; 8:45 am] Act, provided the public has been Barba, Chief, National Policy and BILLING CODE 3510–DS–S notified of the Council’s intent to take Evaluation Division, Office of Ocean final action to address the emergency. and Coastal Resource Management, Special Accommodations NOS/NOAA, 1305 East-West Highway, DEPARTMENT OF COMMERCE 10th Floor, N/ORM7, Silver Spring, These meetings are physically National Oceanic and Atmospheric Maryland 20910, (301) 563–1182. accessible to people with disabilities. Administration Requests for sign language Dated: July 15, 2010. RIN 0648–XX61 interpretation or other auxiliary aids Donna Wieting, should be directed to the Council office Director, Office of Ocean and Coastal Fisheries of the South Atlantic and (see ADDRESSES) at least 3 business days Resource Management, National Ocean Gulf of Mexico; South Atlantic Fishery prior to the meeting. Service, National Oceanic and Atmospheric Management Council; Public Meeting Administration. Dated: July 14, 2010. Federal Domestic Assistance Catalog AGENCY: National Marine Fisheries William D. Chappell, 11.419, Coastal Zone Management Service (NMFS), National Oceanic and Acting Director, Office of Sustainable Program Administration. Atmospheric Administration (NOAA), Fisheries, National Marine Fisheries Service. [FR Doc. 2010–17582 Filed 7–19–10; 8:45 am] [FR Doc. 2010–17629 Filed 7–19–10; 8:45 am] Commerce. BILLING CODE 3510–22–S BILLING CODE 3510–08–P ACTION: Notice of a public meeting. SUMMARY: The South Atlantic Fishery DEPARTMENT OF COMMERCE Management Council (SAFMC) will DEPARTMENT OF COMMERCE hold a meeting of its Scientific and Foreign-Trade Zones Board Statistical Committee (SSC) to discuss National Oceanic and Atmospheric Acceptable Biological Catch (ABC) Administration [Order No. 1695] Control Rules, and recommend ABC RIN 0648–XX62 Expansion of Foreign-Trade Zone 152, values for South Atlantic managed Burns Harbor, Indiana species. See SUPPLEMENTARY Pacific Fishery Management Council; INFORMATION. Public Meeting Pursuant to its authority under the Foreign- DATES: The meeting will be held August AGENCY: National Marine Fisheries Trade Zones (FTZ) Act of June 18, 1934, as 16–17, 2010. See SUPPLEMENTARY amended (19 U.S.C. 81a–81u), the Foreign- Service (NMFS), National Oceanic and INFORMATION. Trade Zones Board (the Board) adopts the Atmospheric Administration (NOAA), following Order: ADDRESSES: The meeting will be held at Commerce. Whereas, the Ports of Indiana, grantee the Town and Country Inn, 2008 ACTION: Notice of a public meeting. of Foreign-Trade Zone No. 152, Savannah Highway, Charleston, SC submitted an application to the Board 29407; telephone: (800) 334–6660; fax: SUMMARY: The Pacific Fishery for authority to expand FTZ 152 in the (843) 766–9444. Management Council’s (Pacific Council)

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Salmon Technical Team (STT) and sign language interpretation or other Partial Rescission Habitat Committee (HC) sub-committees auxiliary aids should be directed to Ms. Pursuant to 19 CFR 351.213(d)(1), the will hold a joint meeting to develop a Carolyn Porter at (503) 820–2280 at least Secretary will rescind an administrative draft assessment of the factors triggering 5 days prior to the meeting date. review, in whole or in part, if a party an overfishing concern for SRFC. The Dated: July 14, 2010. who requested the review withdraws report will include analyses of fishing William D. Chappell, the request within 90 days of the date and non-fishing related factors, and Acting Director, Office of Sustainable of publication of notice of initiation of recommendations for stock rebuilding. Fisheries, National Marine Fisheries Service. the requested review. Petitioners’ This meeting of the STT and HC sub- [FR Doc. 2010–17583 Filed 7–19–10; 8:45 am] request was submitted within the 90 day committees is open to the public. BILLING CODE 3510–22–S period and, thus, is timely. Because DATES: The meeting will be held Petitioners’ withdrawal of requests for Tuesday, August 31, 2010, from 8:30 review is timely and because no other a.m. to 4:30 p.m. DEPARTMENT OF COMMERCE party requested a review of the ADDRESSES: The meeting will be held at aforementioned companies, in the California Department of Fish and International Trade Administration accordance with 19 CFR 351.213(d)(1), Game, 474 Aviation Blvd., Suite 130, we are partially rescinding this review Santa Rosa, CA 95403. [A–570–893] with respect to the above listed companies. FOR FURTHER INFORMATION CONTACT: Mr. Certain Frozen Warmwater Shrimp Chuck Tracy, Salmon Management Staff from the People’s Republic of China: Assessment Rates Officer, Pacific Council; telephone: Partial Rescission of Antidumping (503) 820–2280. The Department will instruct U.S. Duty Administrative Review Customs and Border Protection (‘‘CBP’’) SUPPLEMENTARY INFORMATION: The to assess antidumping duties on all AGENCY: Import Administration, purpose of the meeting is to update a appropriate entries. As the companies International Trade Administration, report assessing the cause of SRFC for which this review has been Department of Commerce. failing to meet the 122,000 adult rescinded have a separate rate, spawner conservation objective, and the DATES: Effective Date: July 20, 2010. antidumping duties shall be assessed, at implication to the long-term FOR FURTHER INFORMATION CONTACT: rates equal to the cash deposit of productivity of the stock not meeting Robert Palmer or Kabir Archuletta, AD/ estimated antidumping duties required that objective, for three consecutive CVD Operations, Office 9, Import at the time of entry, or withdrawal from years. Administration, International Trade warehouse, for consumption, in When a salmon stock managed by the Administration, U.S. Department of accordance with 19 CFR 351.212(c)(2). Pacific Council fails to meet its Commerce, 14th Street and Constitution The Department intends to issue conservation objective for three Avenue, NW, Washington DC 20230; appropriate assessment instructions consecutive years, an overfishing (202) 482–9068 or (202) 482–2593, directly to CBP 15 days after publication concern is triggered according to the respectively. of this notice. terms of the Pacific Coast Salmon Plan (Salmon Plan). The Salmon Plan SUPPLEMENTARY INFORMATION: Notification to Importers requires the Pacific Council to direct its Background This notice serves as a final reminder STT and HC to undertake a review of to importers for whom this review is On April 9, 2010, the Department of the status of the stock in question and being rescinded, as of the publication Commerce (‘‘Department’’) published a determine if excessive harvest was date of this notice, of their notice of initiation of an administrative responsible for the shortfall, if other responsibility under 19 CFR review of the antidumping duty order factors were involved, and the 351.402(f)(2) to file a certificate significance of the stock depression on certain frozen warmwater shrimp regarding the reimbursement of with regard to achieving maximum from the People’s Republic of China antidumping duties prior to liquidation ‘‘ ’’ sustainable yield. The assessment is ( PRC ) covering the period February 1, of the relevant entries during this scheduled to be completed in time to 2009 through January 31, 2010. See review period. Failure to comply with report to the Pacific Council at its March Notice of Initiation of Administrative this requirement could result in the 2011 meeting. Reviews and Requests for Revocation in Secretary’s presumption that Although non-emergency issues not Part of the Antidumping Duty Orders on reimbursement of the antidumping contained in the meeting agenda may Certain Frozen Warmwater Shrimp duties occurred and the subsequent come before the subcommittees for From the Socialist Republic of Vietnam assessment of double antidumping discussion, those issues may not be the and the People’s Republic of China, 75 duties. subject of formal action during these FR 18154 (April 9, 2010) (‘‘Initiation’’). meetings. Action will be restricted to On July 6, 2010, the Ad Hoc Shrimp Notification Regarding Administrative those issues specifically listed in this Trade Action Committee1 (‘‘Petitioners’’) Protective Orders notice and any issues arising after withdrew their request for an This notice also serves as a reminder publication of this notice that require administrative review of Allied Pacific to parties subject to administrative emergency action under Section 305(c) Aquatic Products Zhanjiang Co. Ltd. protective order (‘‘APO’’) of their of the Magnuson-Stevens Fishery and Allied Pacific Food (Dalian) Co., responsibility concerning the return or Conservation and Management Act, Ltd. Petitioners were the only party to destruction of proprietary information provided the public has been notified of request a review of these companies. disclosed under APO in accordance the intent to take final action to address with 19 CFR 351.305, which continues the emergency. 1 Ad Hoc Shrimp Trade Action Committee to govern business proprietary (‘‘AHSTAC’’) is the petitioner in the underlying information in this segment of the Special Accommodations investigation. The members of AHSTAC are: Nancy Edens; Papa Rod, Inc., Carolina Seafoods; Bosarge proceeding. Timely written notification This meeting is physically accessible Boats, Inc.; Knight’s Seafood Inc.; Big Grapes, Inc.; of the return/destruction of APO to people with disabilities. Requests for Versaggi Shrimp Co.; and Craig Wallis. materials or conversion to judicial

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protective order is hereby requested. megabyte file size. A copy of the but not limited to, migration, breathing, Failure to comply with the regulations application and a list of references used nursing, breeding, feeding, or sheltering and terms of an APO is a violation in this document may be obtained by [Level B harassment]. which is subject to sanction. writing to this address, by telephoning Section 101(a)(5)(D) establishes a 45 This notice is issued and published in the contact listed here (see FOR FURTHER day time limit for NMFS review of an accordance with section 777(i)(1) of the INFORMATION CONTACT) and is also application followed by a 30 day public Tariff Act of 1930, as amended, and 19 available at: http://www.nmfs.noaa.gov/ notice and comment period on any CFR 351.213(d)(4). pr/permits/incidental.htm#applications. proposed authorizations for the The Maritime Administration incidental harassment of marine Dated: July 14, 2010. mammals. Within 45 days of the close Edward C. Yang, (MARAD) and U.S. Coast Guard (USCG) Final Environmental Impact Statement of the comment period, NMFS must Acting Deputy Assistant Secretary for (Final EIS) on the Northeast Gateway either issue or deny issuance of the Antidumping and Countervailing Duty authorization. Operations. Energy Bridge LNG Deepwater Port [FR Doc. 2010–17706 Filed 7–19–10; 8:45 am] license application is available for Summary of Request viewing at http://dms.dot.gov under the BILLING CODE 3510–DS–S On June 14, 2010, NMFS received an docket number 22219. application from Excelerate Energy, L.P. FOR FURTHER INFORMATION CONTACT: (Excelerate) and Tetra Tech EC, Inc., on DEPARTMENT OF COMMERCE Shane Guan, Office of Protected behalf of Northeast Gateway and Resources, NMFS, (301) 713 2289, ext Algonquin for an authorization to take National Oceanic and Atmospheric 137. 12 species of marine mammals by Level Administration SUPPLEMENTARY INFORMATION: B harassment incidental to operations of RIN 0648–XX27 an LNG port facility in Massachusetts Background Bay. Since LNG Port operation and Taking and Importing Marine Sections 101(a)(5)(A) and 101(a)(5)(D) maintenance activities have the Mammals; Operations of a Liquified of the MMPA (16 U.S.C. 1361 et seq.) potential to take marine mammals, a Natural Gas Port Facility in direct the Secretary of Commerce marine mammal take authorization Massachusetts Bay (Secretary) to allow, upon request, the under the MMPA is warranted. NMFS incidental, but not intentional taking of has already issued a one year incidental AGENCY: National Marine Fisheries marine mammals by U.S. citizens who Service (NMFS), National Oceanic and harassment authorization for this engage in a specified activity (other than Atmospheric Administration (NOAA), activity pursuant to section 101(a)(5)(D) commercial fishing) within a specified Commerce. of the MMPA (74 FR 45613; September geographical region if certain findings 3, 2009), which expires on August 31, ACTION: Notice; proposed incidental are made and regulations are issued or, 2010. In order to for Northeast Gateway harassment authorization and receipt of if the taking is limited to harassment, a and Algonquin to continue their application for five year regulations; notice of a proposed authorization is operations of the LNG port facility in request for comments and information. provided to the public for review. Massachusetts Bay, both companies are SUMMARY: NMFS has received a request Authorization shall be granted if seeking a renewal of their IHA. NMFS finds that the taking will have a from the Northeast Gateway Energy Description of the Activity BridgeTM L.L.C. (Northeast Gateway or negligible impact on the species or NEG) and its partner, Algonquin Gas stock(s), will not have an unmitigable The Northeast Gateway Port is located Transmission, LLC (Algonquin), for adverse impact on the availability of the in Massachusetts Bay and consists of a authorization to take marine mammals species or stock(s) for subsistence uses, submerged buoy system to dock incidental to operating a liquified and if the permissible methods of taking specially designed LNG carriers natural gas (LNG) port facility by NEG and requirements pertaining to the approximately 13 mi (21 km) offshore of and Algonquin, in Massachusetts Bay mitigation, monitoring and reporting of Massachusetts in federal waters for the period of August 2010 through such taking are set forth. NMFS has approximately 270 to 290 ft (82 to 88 m) August 2011. Pursuant to the Marine defined ‘‘negligible impact’’ in 50 CFR in depth. This facility delivers regasified Mammal Protection Act (MMPA), NMFS 216.103 as: LNG to onshore markets via a 16.06 mi is requesting comments on its proposal an impact resulting from the specified (25.8 km) long, 24 in (61 cm) outside activity that cannot be reasonably expected diameter natural gas pipeline lateral to issue an authorization to Northeast to, and is not reasonably likely to, adversely Gateway and Algonquin to incidentally (Pipeline Lateral) owned and operated affect the species or stock through effects on by Algonquin and interconnected to take, by harassment, small numbers of annual rates of recruitment or survival. marine mammals for a period of 1 year. Algonquin’s existing offshore natural Section 101(a)(5)(D) of the MMPA gas pipeline system in Massachusetts DATES: Comments and information must established an expedited process by Bay (HubLine). be received no later than August 19, which citizens of the United States can The Northeast Gateway Port consists 2010. apply for an authorization to of two subsea Submerged Turret ADDRESSES: Comments should be incidentally take small numbers of LoadingTM (STLTM) buoys, each with a addressed to P. Michael Payne, Chief, marine mammals by harassment. Except flexible riser assembly and a manifold Permits, Conservation and Education with respect to certain activities not connecting the riser assembly, via a Division, Office of Protected Resources, pertinent here, the MMPA defines steel flowline, to the subsea Pipeline National Marine Fisheries Service, 1315 ‘‘harassment’’ as: Lateral. Northeast Gateway utilizes East West Highway, Silver Spring, MD any act of pursuit, torment, or annoyance vessels from its current fleet of specially which (i) has the potential to injure a marine 20910 3226. The mailbox address for mammal or marine mammal stock in the wild designed Energy Bridge Regasification TM providing email comments on this [Level A harassment]; or (ii) has the potential VesselsJ (EBRVs ), each capable of action is PR1.0648–[email protected]. to disturb a marine mammal or marine transporting approximately 2.9 billion Comments sent via email, including all mammal stock in the wild by causing ft3 (82 million m3) of natural gas attachments, must not exceed a 10 disruption of behavioral patterns, including, condensed to 4.9 million feet3 (138,000

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m3) of LNG. Northeast Gateway would regasified, natural gas will be North Atlantic right whale (Eubalaena also be adding vessels to its fleet that transferred at pipeline pressures off the glacialis), will have a cargo capacity of EBRV through the STL buoy and humpback whale (Megaptera approximately 151,000 cubic m3. The flexible riser via a steel flowline leading novaeangliae), mooring system installed at the to the connecting Pipeline Lateral. fin whale (Balaenoptera physalus), Northeast Gateway Port is designed to When the LNG vessel is on the buoy, minke whale (B. acutorostrata), handle both the existing vessels and any wind and current effects on the vessel long-finned pilot whale (Globicephala of the larger capacity vessels that may would be allowed to Aweathervane@ on melas), come into service in the future. The the single point mooring system; Atlantic white sided dolphin EBRVs would dock to the STL buoys, therefore, thrusters will not be used to (Lagenorhynchus acutus), which would serve as both the single maintain a stationary position. bottlenose dolphin (Tursiops point mooring system for the vessels It is estimated that the NEG Port could truncatus), and the delivery conduit for natural gas. receive approximately 65 cargo common dolphin (Delphinus delphis), Each of the STL buoys is secured to the deliveries a year. During this time killer whale (Orcinus orca), seafloor using a series of suction period thrusters would be engaged in harbor porpoise (Phocoena anchors and a combination of chain/ use for docking at the NEG Port phocoena), cable anchor lines. approximately 10 to 30 minutes for each harbor seal (Phoca vitulina), and The proposed activity includes vessel arrival and departure. gray seal (Halichoerus grypus). Northeast Gateway LNG Port operations Information on those species that may NEG Port Maintenance and maintenance. be affected by this activity is discussed The specified design life of the NEG in detail in the USCG Final EIS on the NEG Port Operations Port is about 40 years, with the Northeast Gateway LNG proposal. During NEG Port operations, EBRVs exception of the anchors, mooring Please refer to that document for more servicing the Northeast Gateway Port chain/rope, and riser/umbilical information on these species and will utilize the newly configured and assemblies, which are based on a potential impacts from construction and International Maritime Organization maintenance free design life of 20 years. operation of this LNG facility. In (IMO) approved Boston Traffic The buoy pick up system components addition, general information on these Separation Scheme (TSS) on their are considered consumable and would marine mammal species can also be approach to and departure from the be inspected following each buoy found in W?rsig et al. (2000) and in the Northeast Gateway Port at the earliest connection, and replaced (from inside NMFS Stock Assessment Reports practicable point of transit. EBRVs will the STL compartment during the normal (Waring et al., 2010). This latter maintain speeds of 12 knots or less cargo discharge period) as deemed document is available at: http:// while in the TSS, unless transiting the necessary. The underwater components www.nefsc.noaa.gov/publications/tm/ Off Race Point Seasonal Management of the NEG Port would be inspected tm213/. An updated summary on Area between the dates of March 1 and once yearly in accordance with several commonly sighted marine April 30, or the Great South Channel Classification Society Rules (American mammal species distribution and Seasonal Management Area between the Bureau of Shipping) using either divers abundance in the vicinity of the dates of April 1 and July 31, when they or remotely operated vehicles (ROVs) to proposed action area is provided below. will not exceed 10–knots or when there inspect and record the condition of the Humpback Whale have been active right whale sightings, various STL system components. These active acoustic detections, or both, in activities would be conducted using the The highest abundance for humpback the vicinity of the transiting EBRV in NEG Port’s normal support vessel (125– whales is distributed primarily along a the TSS or at the Northeast Gateway foot, 99 gross ton, 2,700 horsepower, relatively narrow corridor following the Port, in which case the vessels also will aluminum mono-hull vessel), and to the 100 m (328 ft) isobath across the slow their speeds to 10 knots or less. extent possible would coincide with southern Gulf of Maine from the As an EBRV makes its final approach planned weekly visits to the NEG Port. northwestern slope of Georges Bank, to the Northeast Gateway Port, vessel Helicopters would not be used for south to the Great South Channel, and speed will gradually be reduced to 3 marker line maintenance inspections. northward alongside Cape Cod to knots at 1.86 mi (3 km) out to less than Detailed information on the Stellwagen Bank and Jeffreys Ledge. The 1 knot at a distance of 1,640 ft (500 m) operations and maintenance activities relative abundance of whales increases from the Northeast Gateway Port. When can be found in the MARAD/USCG in the spring with the highest an EBRV arrives at the Northeast Final EIS on the Northeast Gateway occurrence along the slope waters Gateway Port, it would retrieve one of Project (see ADDRESSES for availability). (between the 40- and 140–m, or 131- the two permanently anchored Detailed information on the LNG and 459-ft, isobaths) off Cape Cod and submerged STL buoys. It would make facility’s operation and maintenance Davis Bank, Stellwagen Basin and final connection to the buoy through a activities, and noise generated from Tillies Basin and between the 50 and series of engine and bow thruster operations was also published in the 200 m (164– and 656–ft) isobaths along actions. The EBRV would require the Federal Register for the proposed IHA the inner slope of Georges Bank. High use of thrusters for dynamic positioning for Northeast Gateway’s LNG Port abundance is also estimated for the during docking procedure. Typically, construction and operations on March waters around Platts Bank. In the the docking procedure is completed 13, 2007 (72 FR 11328). summer months, abundance increases over a 10 to 30 minute period, with the markedly over the shallow waters (<50 thrusters activated as necessary for short Description of Marine Mammals in the m, or <164 ft) of Stellwagen Bank, the periods of time in second bursts, not a Area of the Specified Activities waters (100–200 m, or 328–656 ft) continuous sound source. Once Marine mammal species that between Platts Bank and Jeffreys Ledge, connected to the buoy, the EBRV will potentially occur in the vicinity of the the steep slopes (between the 30 and begin vaporizing the LNG into its Northeast Gateway facility include 160 m isobaths) of Phelps and Davis natural gas state using the onboard several species of cetaceans and Bank north of the Great South Channel regasification system. As the LNG is pinnipeds: towards Cape Cod, and between the 50–

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and 100–m (164– and 328–ft) isobath for southern Gulf of Maine in spring with et al., 2002). They frequently travel into almost the entire length of the steeply highest abundance locate over the the central and northern Georges Bank, sloping northern edge of Georges Bank. deeper waters (100– to 160–m, or 328– Great South Channel, and Gulf of Maine This general distribution pattern to 525–ft, isobaths) on the northern edge areas during the summer and early fall persists in all seasons except winter, of the Great South Channel and deep (May and October) (NOAA, 1993). when humpbacks remain at high waters (100 - 300 m, 328–984 ft) parallel According to the species stock report, abundance in only a few locations to the 100–m (328–ft) isobath of the population estimate for the Western including Porpoise and Neddick Basins northern Georges Bank and Georges North Atlantic long finned pilot whale adjacent to Jeffreys Ledge, northern Basin. High abundance is also found in is 26,535 individuals (Waring et al., Stellwagen Bank and Tillies Basin, and the shallowest waters (< 30 m, or <98 ft) 2010). the Great South Channel. of Cape Cod Bay, over Platts Bank and Atlantic White Sided Dolphin around Cashes Ledge. Lower relative Fin Whale abundance is estimated over deep water In spring, summer and fall, Atlantic Spatial patterns of habitat utilization basins including Wilkinson Basin, white sided dolphins are widespread by fin whales are very similar to those Rodgers Basin and Franklin Basin. In throughout the southern Gulf of Maine, of humpback whales. Spring and the summer months, right whales move with the high use areas widely located summer high use areas follow the 100– almost entirely away from the coast to either side of the 100–m (328–ft) isobath m (328 ft) isobath along the northern deep waters over basins in the central along the northern edge of Georges edge of Georges Bank (between the 50– Gulf of Maine (Wilkinson Basin, Cashes Bank, and north from the Great South and 200–m (164 and 656 ft) isobaths), Basin between the 160– and 200–m, or Channel to Stellwagen Bank, Jeffreys and northward from the Great South 525– and 656–ft, isobaths) and north of Ledge, Platts Bank and Cashes Ledge. In Channel (between the 50– and 160–m, Georges Bank (Rogers, Crowell and spring, high use areas exist in the Great or 164– and 525–ft, isobaths). Waters Georges Basins). Highest abundance is South Channel, northern Georges Bank, around Cashes Ledge, Platts Bank, and found north of the 100–m (328–ft) the steeply sloping edge of Davis Bank Jeffreys Ledge are all high use areas in isobath at the Great South Channel and and Cape Cod, southern Stellwagen the summer months. Stellwagen Bank is over the deep slope waters and basins Bank and the waters between Jeffreys a high use area for fin whales in all along the northern edge of Georges Ledge and Platts Bank. In summer, there seasons, with highest abundance Bank. The waters between Fippennies is a shift and expansion of habitat occurring over the southern Stellwagen Ledge and Cashes Ledge are also toward the east and northeast. High use Bank in the summer months. In fact, the estimated as high use areas. In the fall areas are identified along most of the southern portion of the Stellwagen Bank months, right whales are sighted northern edge of Georges Bank between National Marine Sanctuary (SBNMS) is infrequently in the Gulf of Maine, with the 50– and 200–m (164– and 656–ft) used more frequently than the northern highest densities over Jeffreys Ledge and isobaths and northward from the Great portion in all months except winter, over deeper waters near Cashes Ledge South Channel along the slopes of Davis when high abundance is recorded over and Wilkinson Basin. In winter, Cape Bank and Cape Cod. High sightings are the northern tip of Stellwagen Bank. In Cod Bay, Scantum Basin, Jeffreys Ledge, also recorded over Truxton Swell, addition to Stellwagen Bank, high and Cashes Ledge were the main high Wilkinson Basin, Cashes Ledge and the abundance in winter is estimated for use areas. Although SBNMS does not bathymetrically complex area northeast Jeffreys Ledge and the adjacent Porpoise appear to support the highest of Platts Bank. High sightings of white Basin (10– to 160–m, 328– to 656–ft, abundance of right whales, sightings sided dolphin are recorded within isobaths), as well as Georges Basin and within SBNMS are reported for all four SBNMS in all seasons, with highest northern Georges Bank. seasons, albeit at low relative density in summer and most abundance. Highest sighting within widespread distributions in spring Minke Whale SBNMS occured along the southern locate mainly over the southern end of Like other piscivorous baleen whales, edge of the Bank. Stellwagen Bank. In winter, high highest abundance for minke whale is sightings are recorded at the northern strongly associated with regions Long-finned Pilot Whale tip of Stellwagen Bank and Tillies between the 50– and 100–m (164– and The long finned pilot whale is more Basin. 328–ft) isobaths, but with a slightly generally found along the edge of the A comparison of spatial distribution stronger preference for the shallower continental shelf (a depth of 330 to patterns for all baleen whales waters along the slopes of Davis Bank, 3,300 ft, or 100 to 1,000 m), choosing (Mysticeti) and all porpoises and Phelps Bank, Great South Channel and areas of high relief or submerged banks dolphins combined show that both Georges Shoals on Georges Bank. Minke in cold or temperate shoreline waters. groups have very similar spatial patterns whales are sighted in the SBNMS in all This species is split between two of high and low use areas. The baleen seasons, with highest abundance subspecies: the Northern and Southern whales, whether piscivorous or estimated for the shallow waters subspecies. The Southern subspecies is planktivorous, are more concentrated (approximately 40 m, or 131 ft) over circumpolar with northern limits of than the dolphins and porpoises. They southern Stellwagen Bank in the Brazil and South Africa. The Northern utilize a corridor that extended broadly summer and fall months. Platts Bank, subspecies, which could be encountered along the most linear and steeply Cashes Ledge, Jeffreys Ledge, and the during operation of the NEG Port, ranges sloping edges in the southern Gulf of adjacent basins (Neddick, Porpoise and from North Carolina to Greenland Maine indicated broadly by the 100 m Scantium) also support high relative (Reeves et al., 2002; Wilson and Ruff, (328 ft) isobath. Stellwagen Bank and abundance. Very low densities of minke 1999). In the western North Atlantic, Jeffreys Ledge support a high abundance whales remain throughout most of the long-finned pilot whales are pelagic, of baleen whales throughout the year. southern Gulf of Maine in winter. occurring in especially high densities in Species richness maps indicate that winter and spring over the continental high use areas for individual whales and North Atlantic Right Whale slope, then moving inshore and onto the dolphin species co occurr, resulting in North Atlantic right whales are shelf in summer and autumn following similar patterns of species richness generally distributed widely across the squid and mackerel populations (Reeves primarily along the southern portion of

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the 100–m (328–ft) isobath extending hearing threshold of the animal at continuous sound) and dynamic northeast and northwest from the Great relevant frequencies, or both); (2) The positioning of vessels using thrusters South Channel. The southern edge of noise may be audible but not strong (an intermittent sound) from EBRVs Stellwagen Bank and the waters around enough to elicit any overt behavioral during docking at the NEG port facility. the northern tip of Cape Cod are also response; (3) The noise may elicit Based on research by Malme et al. highlighted as supporting high cetacean reactions of variable conspicuousness (1983; 1984), for both continuous and species richness. Intermediate to high and variable relevance to the well being intermittent sound sources, Level B numbers of species are also calculated of the marine mammal; these can range harassment is presumed to begin at for the waters surrounding Jeffreys from temporary alert responses to active received levels of 120 dB. The detailed Ledge, the entire Stellwagen Bank, avoidance reactions such as vacating an description of the noise that would Platts Bank, Fippennies Ledge and area at least until the noise event ceases; result from the proposed LNG Port Cashes Ledge. (4) Upon repeated exposure, a marine operations is provided in the Federal Register for the initial construction and Killer Whale, Common Dolphin, mammal may exhibit diminishing responsiveness (habituation), or operations of the NEG LNG Port facility Bottlenose Dolphin, and Harbor and Pipeline Lateral in 2007 (72 FR Porpoise disturbance effects may persist; the latter is most likely with sounds that are 27077; May 14, 2007). Although these four species are some highly variable in characteristics, NEG Port Activities of the most widely distributed small infrequent and unpredictable in cetacean species in the world (Jefferson occurrence, and associated with Underwater noise generated at the et al., 1993), they are not commonly situations that a marine mammal NEG Port has the potential to result seen in the vicinity of the proposed perceives as a threat; (5) Any from two distinct actions, including project area in Massachusetts Bay anthropogenic noise that is strong closed-loop regasification of LNG and/or (Wiley et al., 1994; NCCOS, 2006; enough to be heard has the potential to EBRV maneuvering during coupling and Northeast Gateway Marine Mammal reduce (mask) the ability of a marine decoupling with STL buoys. To evaluate Monitoring Weekly Reports, 2007). mammal to hear natural sounds at the potential for these activities to result in underwater noise that could harass Harbor Seal and Gray Seal similar frequencies, including calls from conspecifics, and underwater marine mammals, Excelerate conducted In the U.S. waters of the western environmental sounds such as surf field sound survey studies during periods of March 21 to 25, 2005 and North Atlantic, both harbor and gray noise; (6) If mammals remain in an area August 6 to 9, 2006 while the EBRV seals are usually found from the coast of because it is important for feeding, Excelsior was both maneuvering and Maine south to southern New England breeding or some other biologically moored at the operational Gulf Gateway and New York (Warrings et al., 2010). important purpose even though there is Along the southern New England and Port located 116 mi (187 km) offshore in chronic exposure to noise, it is possible New York coasts, harbor seals occur the Gulf of Mexico (the Gulf) (see that there could be noise induced seasonally from September through late Appendices B and C of the NEG and physiological stress; this might in turn May (Schneider and Payne, 1983). In Algonquin application). EBRV have negative effects on the well being recent years, their seasonal interval maneuvering conditions included the or reproduction of the animals involved; along the southern New England to New use of both stern and bow thrusters and (7) Very strong sounds have the Jersey coasts has increased (deHart, required for dynamic positioning during potential to cause temporary or 2002). In U.S. waters, harbor seal coupling. These data were used to permanent reduction in hearing breeding and pupping normally occur in model underwater sound propagation at sensitivity. In terrestrial mammals, and waters north of the New Hampshire/ the NEG Port. The pertinent results of presumably marine mammals, received Maine border, although breeding has the field survey are provided as sound levels must far exceed the occurred as far south as Cape Cod in the underwater sound source pressure animal’s hearing threshold for there to early part of the 20th century (Temte et levels as follows: be any temporary threshold shift (TTS) al., 1991; Katona et al., 1993). • Sound levels during closed-loop Although gray seals are often seen off in its hearing ability. For transient regasification ranged from 104 to 110 the coast from New England to sounds, the sound level necessary to decibel linear (dBL). Maximum levels Labrador, within the U.S. waters, only cause TTS is inversely related to the during steady state operations were 108 small numbers of gray seals have been duration of the sound. Received sound dBL. observed pupping on several isolated levels must be even higher for there to • Sound levels during coupling islands along the Maine coast and in be risk of permanent hearing operations were dominated by the Nantucket Vineyard Sound, impairment. In addition, intense periodic use of the bow and stern Massachusetts (Katona et al., 1993; acoustic (or explosive events) may cause thrusters and ranged from 160 to 170 Rough, 1995). In the late 1990s, a year trauma to tissues associated with organs dBL. round breeding population of vital for hearing, sound production, Figures 1–1 and 1–2 of the NEG and approximately over 400 gray seals was respiration and other functions. This Algonquin’s revised MMPA permit documented on outer Cape Cod and trauma may include minor to severe application present the net acoustic Muskeget Island (Warring et al., 2007). hemorrhage. impact of one EBRV operating at the There are three general categories of NEG Port. Thrusters are operated Potential Effects of Noise on Marine sounds recognized by NMFS: intermittently and only for relatively Mammals continuous (such as shipping sounds), short durations of time. The resulting The effects of noise on marine intermittent (such as vibratory pile area within the 120 dB isopleth is less mammals are highly variable, and can driving sounds), and impulse. No than 1 km2 with the linear distance to be categorized as follows (based on impulse noise activities, such as the isopleths extending 430 m (1,411 ft). Richardson et al., 1995): (1) The noise blasting or standard pile driving, are The area within the 180 dB isopleth is may be too weak to be heard at the associated with this project. The noise very localized and will not extend location of the animal (i.e., lower than sources of potential concern are beyond the immediate area where EBRV the prevailing ambient noise level, the regasification/offloading (which is a coupling operations are occurring.

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The potential impacts to marine mammals species in the vicinity of NMFS calculated the estimated take mammals associated with sound project area. number of marine mammals based on propagation from vessel movements, The NCCOS study used cetacean the most recent NCCOS report anchors, chains and LNG regasification/ sightings from two sources: (1) the published in December 2006. A offloading could be the temporary and North Atlantic Right Whale Consortium summary of seasonal cetacean short term displacement of seals and (NARWC) sightings database held at the distribution and abundance in the whales from within the 120 dB zones University of Rhode Island (Kenney, project area is provided above, in the ensonified by these noise sources. 2001); and (2) the Manomet Bird Marine Mammals Affected by the Animals would be expected to re Observatory (MBO) database, held at Activity section. For a detailed occupy the area once the noise ceases. NMFS Northeast Fisheries Science description and calculation of the Center (NEFSC). The NARWC data cetacean abundance data and sighting Estimates of Take by Harassment contained survey efforts and sightings per unit effort (SPUE), please refer to the Although Northeast Gateway stated data from ship and aerial surveys and NCCOS study (NCCOS, 2006). These that the ensonified area of 120–dB opportunistic sources between 1970 and data show that the relative abundance of isopleths by EBRV’s decoupling would 2005. The main data contributors North Atlantic right, fin, humpback, be less than 1 km2 as measured in the included: Cetacean and Turtles minke, and pilot whales, and Atlantic Gulf of Mexico in 2005, due to the lack Assessment Program (CETAP), Canadian white sided dolphins for all seasons, as of more recent sound source verification Department of Fisheries and Oceans, calculated by SPUE in number of and the lack of source measurement in PCCS, International Fund for Animal animals per square kilometer, is 0.0082, Massachusetts Bay, NMFS uses a more Welfare, NOAA’s NEFSC, New England 0.0097, 0.0265, 0.0059, 0.0407, and conservative spreading model to Aquarium, Woods Hole Oceanographic 0.1314 n/km, respectively. calculate the 120 dB isopleth received Institution, and the University of Rhode In calculating the area density of these sound level. This model was also used Island. A total of 653,725 km (406,293 species from these linear density data, to establish 120–dB zone of influence mi) of survey track and 34,589 cetacean NMFS used 0.4 km (0.25 mi), which is (ZOI) for the previous IHAs issued to observations were provisionally selected a quarter the distance of the radius for Northeast Gateway. In the vicinity of the for the NCCOS study in order to visual monitoring (see Proposed LNG Port, where the water depth is minimize bias from uneven allocation of Monitoring, Mitigation, and Reporting about 80 m (262 ft), the 120 dB radius survey effort in both time and space. section below), as a conservative is estimated to be 2.56 km (1.6 mi) The sightings per unit effort (SPUE) was hypothetical strip width (W). Thus the maximum from the sound source during calculated for all cetacean species by area density (D) of these species in the dynamic positioning for the container month covering the southern Gulf of project area can be obtained by the ship, making a maximum ZOI of 21 km2 Maine study area, which also includes following formula: D = SPUE/2W. (8.1 mi2). For shallow water depth (40 the project area (NCCOS, 2006). The MBO’s Cetacean and Seabird Based on this calculation method, the m or 131 ft) representative of the Assessment Program (CSAP) was estimated take numbers per year for northern segment of the Algonquin contracted from 1980 to 1988 by NMFS North Atlantic right, fin, humpback, Pipeline Lateral, the 120–dB radius is NEFSC to provide an assessment of the minke, sei, and pilot whales, and estimated to be 3.31 km (2.06 mi), the relative abundance and distribution of Atlantic white sided dolphins by the associated ZOI is 34 km2 (13.1 mi2). cetaceans, seabirds, and marine turtles NEG Port facility operations, which is The basis for Northeast Gateway and in the shelf waters of the northeastern an average of 65 visits by LNG container Algonquin’s ‘‘take’’ estimate is the United States (MBO, 1987). The CSAP ships to the project area per year (or number of marine mammals that would program was designed to be completely approximately 1.25 visits per week), be exposed to sound levels in excess of compatible with NMFS NEFSC operating the vessels= thrusters for 120 dB. For the NEG port facility databases so that marine mammal data dynamic positioning before offloading operations, the take estimates are could be compared directly with natural gas, corrected for 50 percent determined by multiplying the area of fisheries data throughout the time series underwater, are 21, 25, 68, 15, 11, 104, 2 the EBRV’s ZOI (21 km ) by local during which both types of information and 336, respectively. These numbers marine mammal density estimates, were gathered. A total of 5,210 km represent maximum of 6.08, 1.09, 8.01, corrected to account for 50 percent more (8,383 mi) of survey distance and 636 0.46, 2.78, 0.39, and 0.53 percent of the marine mammals that may be cetacean observations from the MBO populations for these species, underwater, and then multiplying by data were included in the NCCOS respectively. Since it is very likely that the estimated LNG container ship visits analysis. Combined valid survey effort individual animals could be Ataken@ by per year. In the case of data gaps, a for the NCCOS studies included 567,955 harassment multiple times, these conservative approach was used to km (913,840 mi) of survey track for percentages are the upper boundary of ensure the potential number of takes is small cetaceans (dolphins and the animal population that could be not underestimated, as described next. porpoises) and 658,935 km (1,060,226 affected. Therefore, the actual number of NMFS recognizes that baleen whale mi) for large cetaceans (whales) in the individual animals being exposed or species other than North Atlantic right southern Gulf of Maine. The NCCOS taken would be far less. There is no whales have been sighted in the project study then combined these two data sets danger of injury, death, or hearing area from May to November. However, by extracting cetacean sighting records, impairment from the exposure to these the occurrence and abundance of fin, updating database field names to match noise levels. humpback, and minke whales is not the NARWC database, creating geometry In addition, bottlenose dolphins, well documented within the project to represent survey tracklines and common dolphins, killer whales, harbor area. Nonetheless, NMFS uses the data applying a set of data selection criteria porpoises, harbor seals, and gray seals on cetacean distribution within designed to minimize uncertainty and could also be taken by Level B Massachusetts Bay, such as those bias in the data used. harassment as a result of deepwater published by the National Centers for Owing to the comprehensiveness and LNG port operations. The numbers of Coastal Ocean Science (NCCOS, 2006), total coverage of the NCCOS cetacean estimated take of these species are not to estimate potential takes of marine distribution and abundance study, available because they are rare in the

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project area. The population estimates type. For example, the Gateway these reports, NMFS can make some of these marine mammal species and Endeavor is a 90–foot vessel powered general conclusions. Data gathered by stock in the west North Atlantic basin with a 1,200 horsepower diesel engine MMOs is generally useful to indicate the are 81,588; 120,743; 89,054; 99,340; and with a four-pump seawater cooling presence or absence of marine mammals 195,000 for bottlenose dolphins, system. This system requires seawater (often to a species level) within the common dolphins, harbor porpoises, intake of about 68 gallons per minute safety zones (and sometimes without) and harbor seals, respectively (Waring et (gpm) while idling and up to about 150 and to document the implementation of al., 2010). No population estimate is gpm at full power. Use of full power is mitigation measures. Though it is by no available for the North Atlantic stock of required generally for transit. A means conclusory, it is worth noting killer whales and gray seals, however, conservatively high estimate of vessel that no instances of obvious behavioral their occurrence within the proposed activity for the Gateway Endeavor disturbance as a result of Northeast project area is rare. Since the would be operation at idle for 75% of Gateway’s activities were observed by Massachusetts Bay represents only a the time and full power for 25% of the the MMOs. small fraction of the west North Atlantic time. During the routine activities this In addition, Northeast Gateway was basin where these animals occur, and would equate to approximately 42,480 required to maintain an array of Marine these animals do not congregate in the gallons of seawater per 8–hour work Autonomous Recording Units (MARUs) vicinity of the project area, NMFS day. When compared to the engine to monitor calling North Atlantic right believes that only relatively small cooling requirements of an EBRV over whales (humpback, fin, and minke numbers of these marine mammal an 8–hour period (approximately 17.62 whale calls were also able to be species would be potentially affected by million gallons), the Gateway detected). The Bioacoustics Research the Northeast Gateway LNG deepwater Endeavour uses about 0.2% of the EBRV Program (BRP) of the Cornell University project. From the most conservative requirement. To put this water use into analyzed the data and submitted a estimates of both marine mammal context, the Project’s final EIS/EIR report covering the operations of the densities in the project area and the size concluded that the impacts to fish project between January and December of the 120 dB zone of (noise) influence, populations and to marine mammals 2008. During the operations period, the calculated number of individual that feed on fish or plankton resulting right whales were detected on only marine mammals for each species that from water use by an EBRV during port 1,982 of the 136,776 total hours sampled could potentially be harassed annually operations (approximately 39,780,000 (1.45% of recorded hours). Right whales is small relative to the overall gallons over each 8–day regasification were detected hourly throughout the population size. period) would be minor. Water use by year, but were more commonly detected support vessels during routine port in the late February through June Potential Impact on Habitat activities would not materially add to period. Approximately 4.8 acres of seafloor the overall impacts evaluated in the The Cornell’s BRP performed acoustic has been converted from soft substrate final EIS/EIR. Additionally, discharges analyses on background noise of all to artificial hard substrate. The soft- associated with the Gateway Endeavor recordings from the MARUs. A bottom benthic community may be and/or other support/maintenance comparison of the noise metrics derived replaced with organisms associated with vessels that are 79 feet or greater in from these analyses before, during, and naturally occurring hard substrate, such length, are now regulated under the after operations activities revealed as sponges, hydroids, bryozoans, and Clean Water Act (CWA) and must increases in noise level during associated species. The benthic receive and comply with the United operations. A comparison of noise levels community in the up to 43 acres (worst States Environmental Protection Agency from areas including and near areas of case scenario based on severe 100–year (EPA) Vessel General Permit (VGP). The known operations activities with levels storm with EBRVs occupying both STL permit incorporates the USCG from other areas showed increased noise buoys) of soft bottom that may be swept mandatory ballast water management levels for areas that included or were by the anchor chains while EBRVs are and exchange standards, and provides near the known operations activities. docked will have limited opportunity to technology- and water quality-based These increases in noise levels were recover, so this area will experience a effluent limits for other types of evident for each of the three frequency long-term reduction in benthic discharges, including deck runoff, bilge bands utilized by fin, humpback, and productivity. In addition, disturbance water, graywater, and other pollutants. right whales, with the greatest increase from anchor chain movement would It also establishes specific corrective in the right whale band and the next result in increased turbidity levels in actions, inspection and monitoring highest increase in the humpback whale the vicinity of the buoys that could requirements, and recordkeeping and band. However, the BRP report did not affect prey species for marine mammals; reporting requirements for each vessel. provide an interpretation of this overall however, as indicated in the final EIS/ Massachusetts Bay circulation will not increase in noise conditions throughout FEIR, these impacts are expected to be be altered, however, so plankton will be the period when operations activities short-term, indirect, and minor. continuously transported into the NEG occurred. Nevertheless, NMFS does not Daily removal of sea water from EBRV Port area. The removal of these species consider that the sporadic exposure of intakes will reduce the food resources is minor and unlikely to affect in a marine mammals to continuous sound available for planktivorous organisms. measurable way the food sources received levels above 120 dB by a single Water usage would be limited to the available to marine mammals. EBRV would have acute or chronicle standard requirements of NEG’s normal significant affects to these animals in support vessel. As with all vessels Proposed Monitoring and Mitigation the vicinity of the LNG port facility. operating in Massachusetts Bay, sea Measures These MARUs will remain deployed water uptake and discharge is required During the construction and during the time frame of this proposed to support engine cooling, typically operations of the NEG LNG Port facility IHA in order to obtain information using a once-through system. The rate of in prior years, Northeast Gateway during the operational phase of the Port seawater uptake varies with the ship’s submitted reports on marine mammal facility (see below). horsepower and activity and therefore sightings in the area. While it is difficult For the proposed NEG LNG port will differ between vessels and activity to draw biological conclusions from operations, NMFS proposes the

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following monitoring and mitigation 42°30’00.0″ N - 069°45’00.0″ W; MARUs can be found in Appendix A of measures. thence to 42°30’00.0; N - 070°30’00.0″ the NEG and Algonquin application. W; thence to 42°12’00.0″ N - These 19 MARUs will remain in the Marine Mammal Observers 070°30’00.0″ W; thence to 42°12’00.0″ N same configuration during full operation For activities related to the NEG LNG - 070°12’00.0″ W; thence to 42°04’56.5″ of the NEG Port. The MARUs collect port operations, all individuals onboard N - 070o12’00.0″ W; thence along archival noise data and are not designed the EBRVs responsible for the charted mean high water line and to provide real-time or near-real-time navigation and lookout duties on the inshore limits of COLREGS limit to a information about vocalizing whales. vessel must receive training prior to latitude of 41°40’00.0″ N; thence due Rather, the acoustic data collected by assuming navigation and lookout duties, east to 41°41’00.0″ N - 069°45’00.0″ W; the MARUs shall be analyzed to a component of which will be training thence back to starting point. document the seasonal occurrences and on marine mammal sighting/reporting (5) EBRVs will reduce transit speed to overall distributions of whales and vessel strike avoidance measures. 10 knots or less over ground from April (primarily fin, humpback, and right Crew training of EBRV personnel will 1 July 31 in all waters bounded by whales) within approximately 10 stress individual responsibility for straight lines connecting the following nautical miles of the NEG Port, and marine mammal awareness and points in the order stated below. This shall measure and document the noise reporting. area is also known as the Great South ‘‘budget’’ of Massachusetts Bay so as to If a marine mammal is sighted by a Channel SMA and tracks NMFS eventually assist in determining crew member, an immediate notification regulations at 50 CFR 224.105: whether an overall increase in noise in will be made to the Person in Charge on 42°30’00.0″ N–69°45’00.0″ W the Bay associated with the NEG Port ° ″ ° ″ board the vessel and the Northeast Port 41 40’00.0 N- 69 45’00.0 W might be having a potentially negative ° ″ ° ″ Manager, who will ensure that the 41 00’00.0 N- 69 05’00.0 W impact on marine mammals. The overall 42°09’00.0″ N- 67°08’24.0″ W intent of this system is to provide better required vessel strike avoidance ° ″ ° ″ measures and reporting procedures are 42 30’00.0 N- 67 27’00.0 W information for both regulators and the 42°30’00.0″ N- 69°45’00.0″ W followed. general public regarding the acoustic (6) LNGRVs are not expected to transit footprint associated with long-term Vessel Strike Avoidance Cape Cod Bay. However, in the event operation of the NEG Port in transit through Cape Cod Bay is (1) All EBRVs approaching or Massachusetts Bay, and the distribution required, LNGRVs will reduce transit departing the port will comply with the of vocalizing marine mammals during speed to 10 knots or less over ground Mandatory Ship Reporting (MSR) NEG Port activities. In addition to the 19 from January 1 May 15 in all waters in system to keep apprised of right whale MARUs, Northeast Gateway will deploy Cape Cod Bay, extending to all sightings in the vicinity. Vessel 10 ABs within the TSS for the shorelines of Cape Cod Bay, with a operators will also receive active operational life of the NEG Port. A northern boundary of 42°12’00.0″ N detections from an existing passive description of the ABs is provided in latitude. acoustic array prior to and during transit Appendix A of this NEG and (7) A vessel may operate at a speed Algonquin’s application. The purpose of through the northern leg of the Boston necessary to maintain safe maneuvering TSS where the buoys are installed. the ABs shall be to detect a calling speed instead of the required ten knots North Atlantic right whale an average of (2) In response to active right whale only if justified because the vessel is in sightings (detected acoustically or 5 nm (9.26 km) from each AB (detection an area where oceanographic, ranges will vary based on ambient reported through other means such as hydrographic and/or meteorological the MSR or Sighting Advisory System underwater conditions). The AB system conditions severely restrict the shall be the primary detection (SAS)), and taking into account safety maneuverability of the vessel and the mechanism that alerts the EBRV and weather conditions, EBRVs will need to operate at such speed is captains to the occurrence of right take appropriate actions to minimize the confirmed by the pilot on board or, whales, heightens EBRV awareness, and risk of striking whales, including when a vessel is not carrying a pilot, the triggers necessary mitigation actions as reducing speed to 10 knots or less and master of the vessel. If a deviation from described in the Marine Mammal alerting personnel responsible for the ten knot speed limit is necessary, Detection, Monitoring, and Response navigation and lookout duties to the reasons for the deviation, the speed Plan included as Appendix A of the concentrate their efforts. at which the vessel is operated, the NEG application. (3) EBRVs will maintain speeds of 12 latitude and longitude of the area, and Northeast Gateway has engaged knots or less while in the TSS until the time and duration of such deviation representatives from Cornell reaching the vicinity of the buoys shall be entered into the logbook of the University’s Bioacoustics Research (except during the seasons and areas vessel. The master of the vessel shall Program (BRP) and the Woods Hole defined below, when speed will be attest to the accuracy of the logbook Oceanographic Institution (WHOI) as limited to 10 knots or less). At 1.86 mi entry by signing and dating it. the consultants for developing, (3 km) from the NEG port, speed will be implementing, collecting, and analyzing Research Passive Acoustic Monitoring reduced to 3 knots, and to less than 1 the acoustic data; reporting; and (PAM) Program knot at 1,640 ft (500 m) from the buoy. maintaining the acoustic monitoring (4) EBRVs will reduce transit speed to Northeast Gateway shall monitor the system. 10 knots or less over ground from March noise environment in Massachusetts Further information detailing the 1 April 30 in all waters bounded by Bay in the vicinity of the NEG Port deployment and operation of arrays of straight lines connecting the following using an array of 19 Marine 19 passive seafloor acoustic recording points in the order stated below. This Autonomous Recording Units (MARUs) units (MARUs) centered on the terminal area is known as the Off Race Point that were deployed initially in April site and the 10 ABs that are to be placed Seasonal Management Area (SMA) and 2007 to collect data during the at approximately 5–m (8.0–km) intervals tracks NMFS regulations at 50 CFR preconstruction and active construction within the recently modified TSS can be 224.105: phases of the NEG Port and Algonquin found in the Marine Mammal Detection, Pipeline Lateral. A description of the Monitoring, and Response Plan

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included as Appendix A of the NEG and spring. Therefore, if shipments and/or maximum calculated number of Algonquin application. maintenance activities occur in other individual marine mammals for each seasons, the likelihood of sei whales species that could potentially be Reporting being affected is quite low. Humpback harassed annually is small relative to The Project area is within the and minke whales are not expected in the overall population sizes (8.01 Mandatory Ship Reporting Area the project area in the winter. During percent for humpback whales and 6.08 (MSRA), so all vessels entering and the winter, a large portion of the North percent for North Atlantic right whales exiting the MSRA will report their Atlantic right whale population occurs and no more than 2.78 percent of any activities to WHALESNORTH. During in the southeastern U.S. calving grounds other species). all phases of the Northeast Gateway (i.e., South Carolina, Georgia, and Based on the analysis contained LNG Port operations, sightings of any northern Florida). The fact that certain herein of the likely effects of the injured or dead marine mammals will activities will occur during times when specified activity on marine mammals be reported immediately to the USCG or certain species are not commonly found and their habitat, and taking into NMFS, regardless of whether the injury in the area will help reduce the amount consideration the implementation of the or death is caused by project activities. of Level B harassment for these species. mitigation and monitoring measures, An annual report on marine mammal Many animals perform vital functions, NMFS preliminarily finds that monitoring and mitigation would be such as feeding, resting, traveling, and operation, including repair and submitted to NMFS Office of Protected socializing, on a diel cycle (24–hr maintenance activities, of the Northeast Resources and NMFS Northeast cycle). Behavioral reactions to noise Gateway LNG Port will result in the Regional Office within 90 days after the exposure (such as disruption of critical incidental take of small numbers of expiration of an LOA. The annual report life functions, displacement, or marine mammals, by Level B shall include data collected for each avoidance of important habitat) are harassment only, and that the total distinct marine mammal species more likely to be significant if they last taking from Northeast Gateway’s observed in the project area in the more than one diel cycle or recur on proposed activiites will have a Massachusetts Bay during the period of subsequent days (Southall et al., 2007). negligible impact on the affected species LNG facility operation. Description of Consequently, a behavioral response or stocks. marine mammal behavior, overall lasting less than one day and not Impact on Availability of Affected numbers of individuals observed, recurring on subsequent days is not Species or Stock for Taking for frequency of observation, and any considered particularly severe unless it Subsistence Uses behavioral changes and the context of could directly affect reproduction or the changes relative to operation survival (Southall et al., 2007). There are no relevant subsistence uses activities shall also be included in the Operational activities are not of marine mammals implicated by this annual report. anticipated to occur at the Port on action. Negligible Impact and Small Numbers consecutive days. In addition, Northeast Endangered Species Act Gateway EBRVs are expected to make 65 Analysis and Preliminary port calls throughout the year, with On February 5, 2007, NMFS Determination thruster use needed for a couple of concluded consultation with MARAD NMFS has defined ‘‘negligible impact’’ hours. Therefore, Northeast Gateway and the USCG, under section 7 of the in 50 CFR 216.103 as ’’...an impact will not be creating increased sound Endangered Species Act (ESA), on the resulting from the specified activity that levels in the marine environment for proposed construction and operation of cannot be reasonably expected to, and is prolonged period of time. the Northeast Gateway LNG facility and not reasonably likely to, adversely affect Of the 12 marine mammal species issued a biological opinion. The finding the species or stock through effects on likely to occur in the area, four are listed of that consultation was that the annual rates of recruitment or survival.’’ as endangered under the ESA: North construction and operation of the In making a negligible impact Atlantic right, humpback, fin, and sei Northeast Gateway LNG terminal may determination, NMFS considers a whales. All of these species, as well as adversely affect, but is not likely to variety of factors, including but not the northern coastal stock of bottlenose jeopardize, the continued existence of limited to: (1) the number of anticipated dolphin, are also considered depleted northern right, humpback, and fin mortalities; (2) the number and nature of under the MMPA. There is currently no whales, and is not likely to adversely anticipated injuries; (3) the number, designated critical habitat or known affect sperm, sei, or blue whales and nature, intensity, and duration of Level reproductive areas for any of these Kemp’s ridley, loggerhead, green or B harassment; and (4) the context in species in or near the proposed project leatherback sea turtles. An incidental which the takes occur. area. However, there are several well take statement (ITS) was issued No injuries or mortalities are known North Atlantic right whale following NMFS’ issuance of the IHA. anticipated to occur as a result of feeding grounds in the Cape Cod Bay On November 15, 2007, Northeast Northeast Gateway’s proposed port and Great South Channel. No mortality Gateway and Algonquin submitted a operation and maintenance activities, or injury is expected to occur and due letter to NMFS requesting an extension and none are proposed to be authorized to the nature, degree, and context of the for the LNG Port construction into by NMFS. Additionally, animals in the Level B harassment anticipated, the December 2007. Upon reviewing area are not anticipated to incur any activity is not expected to impact rates Northeast Gateway’s weekly marine hearing impairment (i.e., TTS or PTS), of recruitment or survival. mammal monitoring reports submitted as the modeling of source levels The population estimates for the under the previous IHA, NMFS indicating none of the source received species that may be taken by harassment recognized that the potential take of levels exceeds 180 dB (rms). from the most recent U.S. Atlantic Stock some marine mammals resulting from While some of the species occur in Assessment Reports were provided the LNG Port and Pipeline Lateral by the proposed project area year-round, earlier in this document. From the most Level B behavioral harassment likely some species only occur in the area conservative estimates of both marine had exceeded the original take during certain seasons. Sei whales are mammal densities in the project area estimates. Therefore, NMFS Northeast only anticipated in the area during the and the size of the 120–dB ZOI, the Region (NER) reinitiated consultation

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with MARAD and USCG on the depend on the distribution and longer review these letters or issue construction and operation of the abundance of marine mammals in the certificates of correction on the basis of Northeast Gateway LNG facility. On vicinity of the LNG Port facility, the a review of these letters. If the applicant November 30, 2007, NMFS NER issued estimated numbers of marine mammals or patentee wants the USPTO to a revised biological opinion, reflecting to be harassed is small relative to the reconsider its patent term adjustment the revised construction time period affected species or stock sizes. Please determination, the applicant or patentee and including a revised ITS. This see Estimate of Take by Harassment must use the procedures set forth in 37 revised biological opinion concluded section above for the calculation of CFR 1.705 for requesting that the construction and operation of these take numbers. reconsideration of a patent term the Northeast Gateway LNG terminal adjustment determination. A patentee may adversely affect, but is not likely to Proposed Authorization may also file a terminal disclaimer jeopardize, the continued existence of NMFS proposes to issue an IHA to disclaiming any period considered in northern right, humpback, and fin Northeast Gateway and Algonquin for excess of the appropriate patent term whales, and is not likely to adversely conducting LNG Port facility operations adjustment. However, the USPTO does affect sperm, sei, or blue whales. and maintenance in Massachusetts Bay, not require an applicant or patentee to provided the previously mentioned file either a request for reconsideration NEPA mitigation, monitoring, and reporting under 37 CFR 1.705 or a terminal MARAD and the USCG released a requirements are incorporated. disclaimer when the patent term Final EIS/Environmental Impact Report Information Solicited adjustment indicated on a notice of (EIR) for the proposed Northeast allowance, issue notification, or patent Gateway Port and Pipeline Lateral. A NMFS requests interested persons to is greater than what the applicant or notice of availability was published by submit comments and information patentee believes is appropriate. concerning this proposed IHA and MARAD on October 26, 2006 (71 FR DATES: The clarification set forth in this 62657). The Final EIS/EIR provides Northeast Gateway and Algonquin’s notice applies to all patent term detailed information on the proposed application for incidental take adjustment letters and requests for a project facilities, construction methods regulations (see ADDRESSES). NMFS certificate of correction filed at any time and analysis of potential impacts on requests interested persons to submit that are pending before the USPTO on marine mammal. comments, information, and suggestions or after July 20, 2010. NMFS was a cooperating agency (as concerning both the request and the FOR FURTHER INFORMATION CONTACT: defined by the Council on structure and content of future Nancy E. Johnson, Office of Petitions: Environmental Quality (40 CFR 1501.6)) regulations to allow this taking. NMFS By telephone at 571–272–3219; or by in the preparation of the Draft and Final will consider this information in mail addressed to: Mail Stop EISs. NMFS has reviewed the Final EIS developing proposed regulations to Comments—Patents, Commissioner for and has adopted it. Therefore, the govern the taking. Patents, P.O. Box 1450, Alexandria, VA preparation of another EIS or EA is not Dated: July 13, 2010. 22313–1450. warranted. Helen M. Golde, SUPPLEMENTARY INFORMATION: The Preliminary Determinations Deputy Director, Office of Protected Manual of Patent Examining Procedure Resources, National Marine Fisheries Service. NMFS has preliminarily determined (MPEP) was revised in 2004 to indicate that the impact of operations of the [FR Doc. 2010–17692 Filed 7–19–10; 8:45 am] that if a notice of allowance indicates a Northeast Gateway LNG Port facility BILLING CODE 3510–22–S patent term adjustment that is longer may result, at worst, in a temporary than expected, the applicant may wait until the patent issues, and if the patent modification in behavior of small DEPARTMENT OF COMMERCE numbers of certain species of marine issues with a value that is incorrect, mammals that may be in close Patent and Trademark Office request a certificate of correction. See proximity to the Northeast Gateway MPEP § 2733. The MPEP does not LNG facility during its operations and [Docket No.: PTO–P–2010–0052] specify what action the USPTO will take in response to such a request for a maintenance. These activities are Treatment of Letters Stating That the expected to result in some local short certificate of correction. The USPTO is, USPTO’s Patent Term Adjustment in this notice, clarifying when the term displacement and will have no Determination Is Greater Than What more than a negligible impact on the USPTO will change the patent term the Applicant or Patentee Believes Is adjustment determination indicated on affected species or stocks of marine Appropriate mammals. a patent via a certificate of correction This preliminary determination is AGENCY: United States Patent and under either 35 U.S.C. 254 or 255. supported by proposed mitigation, Trademark Office, Commerce. The USPTO, however, has determined monitoring, and reporting measures ACTION: Notice. that it is not appropriate to provide a described in this document on this patent term adjustment recalculation via action. SUMMARY: The United States Patent and a certificate of correction under 35 As a result of the described proposed Trademark Office (USPTO) is clarifying U.S.C. 254 or 255. A certificate of mitigation and monitoring measures, no its treatment of letters submitted by correction is permissible under 35 take by injury or death would be applicants and patentees stating that the U.S.C. 254 only for a mistake in a patent requested, anticipated or authorized, USPTO’s patent term adjustment that ‘‘is clearly disclosed by the records and the potential for temporary or determination indicated on a notice of of the Office.’’ See 35 U.S.C. 254. While permanent hearing impairment is very allowance, issue notification, or patent, the applicable patent term adjustment is unlikely due to the relatively low noise is greater than what the applicant or ascertainable from the records of the levels (and consequently small zone of patentee believes is appropriate. The USPTO, a revised patent term impact). USPTO will place these letters in the adjustment determination requires a While the number of marine file of the application or patent without complex calculation and is not ‘‘clearly mammals that may be harassed will further review. The USPTO will no disclosed’’ by the records of the USPTO.

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In addition, a certificate of correction is patent term adjustment determined via Dated: July 14, 2010. permissible under 35 U.S.C. 255 only a decision on a request for David J. Kappos, for ‘‘a mistake of a clerical or reconsideration under 37 CFR 1.705; or Under Secretary of Commerce for Intellectual typographical nature, or of minor (2) the total patent term adjustment Property and Director of the United States character.’’ See 35 U.S.C. 255. indicated on the Patent Application Patent and Trademark Office. Thus, the USPTO has long maintained Information Retrieval (PAIR) screen that [FR Doc. 2010–17667 Filed 7–19–10; 8:45 am] that a request for a certificate of displays the patent term adjustment BILLING CODE 3510–16–P correction under either 35 U.S.C. 254 or calculation for the patent. 255 is not an appropriate venue for Accordingly, the USPTO is clarifying seeking a change to the patent term that it will treat letters submitted by applicants and patentees stating that the COMMODITY FUTURES TRADING adjustment indicated on a patent. See COMMISSION Revision of Patent Term Extension and USPTO’s patent term adjustment Patent Term Adjustment Provisions, 69 determination indicated on a notice of Agricultural Advisory Committee FR 21704, 21707 (Apr. 22, 2004) (final allowance, issue notification, or patent Meeting rule) (‘‘Petitions under [37 CFR] 1.182 or is greater than what the applicant or 1.183, or requests for a certificate of patentee believes is appropriate by AGENCY: Commodity Futures Trading correction under either 35 U.S.C. 254 placing these letters in the file of the Commission (‘‘CFTC’’). and [37 CFR] 1.323 or 35 U.S.C. 255 and application or patent without comment. ACTION: Notice of Meeting of The USPTO will no longer review these [37 CFR] 1.324, are not substitute fora Agricultural Advisory Committee. letters or issue certificates of correction to obtain reconsideration of a patent under either 35 U.S.C. 254 or 255 on the SUMMARY term adjustment determination : The CFTC’s Agricultural basis of a review of these letters. In indicated in a notice of allowance if an Advisory Committee will hold a public addition, the USPTO will not grant a applicant fails to submit a request for meeting on August 5, 2010, from 9 a.m. request for a certificate of correction reconsideration within the time period to 1 p.m., at the Commission’s under either 35 U.S.C. 254 or 255 to specified in [37 CFR] 1.705(b), or to Washington, DC headquarters. The revise the patent term adjustment obtain reconsideration of a patent term agenda for the meeting includes (1) the indicated in a patent, except in the two adjustment determination indicated in a ICE Futures US Cotton Contract, (2) situations discussed previously. If a wheat price convergence issues, and (3) patent if a patentee fails to submit a patentee submits a request for a request for reconsideration within the price reporting issues in the cattle and certificate of correction under either 35 hog markets. Members of the public may time period specified in [37 CFR] U.S.C. 254 or 255 to revise the patent ’’ file written statements with the 1.705(d) ). The patent term adjustment term adjustment indicated in a patent provisions of 35 U.S.C. 154(b) provide committee. If time permits, reasonable that includes changes in the patent for provision will be made for oral for the establishment of procedures for which a certificate of correction would patent term adjustment determinations, presentations by members of the public be appropriate, the request for a of up to five minutes. including providing the applicant one certificate of correction will not be DATES: The meeting will be held on opportunity to request reconsideration granted unless the patentee submits a of any patent term adjustment August 5, 2010 from 9 a.m. to 1 p.m.. new request for a certificate of Members of the public who wish to determination. See 35 U.S.C. 154(b)(3). correction that does not also attempt to make oral statements should inform It would render the provisions of 35 revise the patent term adjustment Commissioner Michael V. Dunn, who U.S.C. 154(b)(3) superfluous if patent indicated in the patent. term adjustment determinations could If the applicant or patentee wants the chairs the committee, in writing at least be revised at any time during the life of USPTO to reconsider its patent term three business days before the meeting. the patent via a certificate of correction adjustment determination, the applicant ADDRESSES: The meeting will take place under 35 U.S.C. 254 or 255. In addition, or patentee must use the procedures set in the first floor hearing room at the the patent term adjustment provisions of forth in 37 CFR 1.705 for requesting Commission’s headquarters, Three 35 U.S.C. 154(b) are designed to have reconsideration of a patent term Lafayette Centre, 1155 21st Street, NW., patent term adjustment issues to be adjustment determination, whether the Washington, DC 20581. Written resolved shortly after a patent issues by USPTO’s patent term adjustment statements and requests to make oral providing a period of one hundred and determination is greater than or less statements should be sent to the eighty days from the grant of the patent than the adjustment that the applicant attention of Agricultural Advisory for seeking court review of the USPTO’s or patentee believes to be appropriate. A Committee, c/o Chairman Michael V. patent term adjustment determination patentee may also file a terminal Dunn, Commodity Futures Trading (rather than the six-year statute of disclaimer at any time disclaiming any Commission, Three Lafayette Centre, limitations otherwise applicable for period considered in excess of the 1155 21st Street, NW., Washington, DC actions under the Administrative appropriate patent term adjustment. See 20581. Procedures Act). See 35 U.S.C. 35 U.S.C. 253 and 37 CFR 1.321. FOR FURTHER INFORMATION CONTACT: 154(b)(4). It would negate the purpose of However, the USPTO does not require Nicole McNair at (202) 418–5070. the one hundred and eighty day period an applicant or patentee to file either a SUPPLEMENTARY INFORMATION: The in 35 U.S.C. 154(b)(4) to allow patent request for reconsideration under 37 meeting will be webcast on the term adjustment determinations to be CFR 1.705 or a terminal disclaimer Commission’s Web site, http:// revised at any time during the life of the when the patent term adjustment www.cftc.gov. Members of the public patent via a certificate of correction indicated on a notice of allowance, issue also can listen to the meeting by under 35 U.S.C. 254 or 255. Therefore, notification, or patent is greater than telephone. The public access call-in it is not appropriate to issue a certificate what the applicant or patentee believes numbers will be announced at a later of correction under 35 U.S.C. 254 or 255 is appropriate. date. to revise the patent term adjustment The appropriate sections of the MPEP indicated in a patent unless it is being will be revised in accordance with this Authority: 5 U.S.C. app. 2 § 10(a)(2) . revised for consistency with: (1) The notice in due course. Dated: July 14, 2010.

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By the Commission. (1) By mail sent to: Corporation for burden estimate. In addition, the David A. Stawick, National and Community Service, Corporation has reduced the sample Secretary of the Commission. Attention: Lillian Dote, Program Officer, from 2,267 to 2,043. Study participants [FR Doc. 2010–17605 Filed 7–19–10; 8:45 a.m.] Office of Research and Policy who did not respond to the baseline and BILLING CODE P Development, Curtis Center, 601 Walnut 18-month follow-up survey have been Street, Suite 876E, Philadelphia, PA, removed from the sample. 19106. Current Action CORPORATION FOR NATIONAL AND (2) By hand delivery or by courier to COMMUNITY SERVICE the street address given in paragraph (1) The Corporation seeks renewal of its above, between 9 a.m. and 4 p.m. earlier application. Proposed Information Collection; Monday through Friday, except Federal Type of Review: Renewal. Comment Request holidays. Agency: Corporation for National and (3) By fax to: (215) 597–4933, Community Service. AGENCY: Corporation for National and Attention: Lillian Dote, Program Officer, Title: National Evaluation of Youth Community Service. Office of Research and Policy Corps. ACTION: Notice. Development. OMB Number: 3045–0124. (4) Electronically through the Agency Number: None. SUMMARY: The Corporation for National Affected Public: Individuals who have and Community Service (hereinafter the Corporation’s e-mail address system: [email protected]. agreed to participate in the National ‘‘Corporation’’), as part of its continuing Evaluation of Youth Corps and who effort to reduce paperwork and FOR FURTHER INFORMATION CONTACT: have completed a baseline survey. respondent burden, conducts a pre- Lillian Dote at (215) 597–2715 or by e- Total Respondents: 2,043. clearance consultation program to mail at [email protected]. Frequency: Periodically. provide the general public and Federal SUPPLEMENTARY INFORMATION: Average Time per Response: Averages agencies with an opportunity to The Corporation is particularly 15 minutes. comment on proposed and/or interested in comments that: Estimated Total Burden Hours: 511 continuing collections of information in • Evaluate whether the proposed hours. accordance with the Paperwork collection of information is necessary Total Burden Cost (capital/startup): Reduction Act of 1995 (PRA95) (44 for the proper performance of the None. U.S.C. Sec. 3506(c)(2)(A)). This program functions of the Corporation, including Total Burden Cost (operating/ helps to ensure that requested data can whether the information will have maintenance): None. be provided in the desired format, practical utility; Comments submitted in response to reporting burden (time and financial • Evaluate the accuracy of the this notice will be summarized and/or resources) is minimized, collection agency’s estimate of the burden of the included in the request for Office of instruments are clearly understood, and proposed collection of information, Management and Budget approval of the the impact of collection requirement on including the validity of the information collection request; they will respondents can be properly assessed. methodology and assumptions used; also become a matter of public record. Currently, the Corporation is • Enhance the quality, utility, and Dated: July 13, 2010. soliciting comments concerning the clarity of the information to be locating of respondents for the National Kevin Cramer, collected; and Acting Director, Office of Research and Policy Evaluation of Youth Corps. The • Minimize the burden of the National Evaluation of Youth Corps is a Development. collection of information on those who [FR Doc. 2010–17586 Filed 7–19–10; 8:45 am] study to determine the impact of are expected to respond, including the BILLING CODE 6050–$$–P participation in youth corps on use of appropriate automated, members’ educational attainment, electronic, mechanical, or other employment and earnings, workplace technological collection techniques or DEPARTMENT OF EDUCATION and life skills, and avoidance of risk other forms of information technology behaviors. The National Evaluation of (e.g., permitting electronic submissions The Historically Black College and Youth Corps is based on the hypothesis of responses). that participation in youth corps may University Capital Financing Advisory lead to measurable outcomes for Background Board participants. The study uses an The Corporation is interested in AGENCY: Department of Education. The experimental design to assess program learning about the effects of national Historically Black College and impacts on program participants. Many service on participants. This study uses University Capital Financing Advisory of the youth corps programs receive all an experimental design to assess the Board. or part of their funding from the outcomes associated with participation ACTION: Notice of an open meeting. Corporation. in national service. The proposed Copies of the information collection locating effort will be completed by SUMMARY: This notice sets forth the requests can be obtained by contacting sample members only, including former schedule and proposed agenda of an the office listed in the address section corps members and their counterparts in upcoming open meeting of the of this notice. the comparison group. Historically Black College and DATES: Written comments must be In an effort to reduce the burden on University Capital Financing Advisory submitted to the individual and office sample members during this locating Board (Board). The notice also describes listed in the ADDRESSES section by effort, the Corporation is simplifying the the functions of the Board. Notice of this September 20, 2010. information collection. A large number meeting is required by Section 10(a)(2) ADDRESSES: You may submit comments, of employment, education, civic of the Federal Advisory Committee Act identified by the title of the information engagement, and risk behavior questions and is intended to notify the public of collection activity, by any of the will be eliminated or simplified, thereby their opportunity to attend. following methods: resulting in a reduction in the prior DATES: Friday, July 30, 2010.

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TIME: 10 a.m.–1 p.m. by submitting them to the attention of Impact Statement (EIS) for the ADDRESSES: U.S. Department of Donald Watson, 1990 K Street, NW., Recapitalization of Naval Spent Nuclear Education, Board Room, 555 New Jersey Room 6071, Washington, DC, by Friday, Fuel Handling and Examination Avenue, NW., Washington, DC. 20001. July 16, 2010. Facilities at the Idaho National FOR FURTHER INFORMATION CONTACT: Records are kept of all Board Laboratory (INL). The NNPP intends to Donald E. Watson, Executive Director, proceedings and are available for public prepare an EIS for the recapitalization of Historically Black College and inspection at the Office of the infrastructure at the Expended Core University Capital Financing (HBCU Historically Black College and Facility (ECF) at the INL in Idaho. This Capital Financing) Advisory Board, University Capital Financing Advisory action supports the receipt, handling, 1990 K Street, NW., Room 6071, Board, 1990 K Street, NW., Room 6071, examination, and packaging of naval Washington, DC 20006; telephone: (202) Washington, DC 20006, from the hours spent nuclear fuel removed from 219–7037; fax: (202) 502–7852; e-mail: of 9 a.m. to 5 p.m., Eastern Standard nuclear-powered aircraft carriers and [email protected]. Time (EST), Monday through Friday. submarines, as well as from land-based Individuals who use a Electronic Access to This Document: prototype reactors, and the examination telecommunications device for the deaf You may view this document, as well as of other irradiated materials. (TDD) may call the Federal Information all other documents of this Department Infrastructure recapitalization (e.g., new Relay Service (FRS) at 1–800–877–8339, published in the Federal Register, in or improved facilities and equipment) is Monday through Friday between the text or Adobe Portable Format (PDF), on needed to ensure continued naval hours of 8 a.m. and 8 p.m., Eastern the Internet at the following site: nuclear-powered operations and Standard Time. http://www.ed.gov/news/fedregister/ missions for at least the next 40 years. In addition, the recapitalized SUPPLEMENTARY INFORMATION: The Board index.html. To use PDF, you must have Adobe infrastructure will support the Navy’s is authorized by Title III, Part D, Section commitments, as identified in the 1995 347, of the Higher Education Act of Acrobat Reader, which is available free at this site. If you have questions about Idaho Settlement Agreement (amended 1965, as amended in 1998 (20 U.S.C. in June 2008), among the State of Idaho, 1066f). The Board is established within using PDF, call the U.S. Government Printing Office (GPO), toll-free at 1– the DOE, and the Navy. Three public the Department of Education to provide scoping meetings will be held. advice and counsel to the Secretary and 866–512–1800; or, in the Washington, DATES: NNPP invites interested parties the designated bonding authority as to DC area at 202 512–0000. to comment on the proposed scope of the most effective and efficient means of Note: The official version of this document the EIS. NNPP will consider all implementing construction financing on is the document published in the Federal comments received by September 3, Historically Black College and Register. Free Internet access to the official 2010, and to the extent practical University (HBCU) campuses and to edition of the Federal Register and the Code of Federal Regulations is available on GPO comments received after that date, in advise Congress regarding the progress Access at: http://www.gpoaccess.gov/nara/ the preparation of the EIS. made in implementing the program. index.html. The public meetings will address the Specifically, the Board will provide scope of the planned EIS. For dates, advice as to the capital needs of HBCUs, Eduardo M. Ochoa, times, and locations of public scoping how those needs can be met through the Assistant Secretary for Postsecondary meetings, see SUPPLEMENTARY program, and what additional steps Education. INFORMATION. might be taken to improve the operation [FR Doc. 2010–17699 Filed 7–19–10; 8:45 am] and implementation of the construction- ADDRESSES: Written comments on the BILLING CODE 4000–01–P financing program. scope of the EIS may be submitted by The purpose of this meeting is to mailing to: Mr. Gregory F. Holden (08U– review current program activities, to Naval Reactors), Naval Sea Systems DEPARTMENT OF ENERGY make administrative and legislative Command, 1240 Isaac Hull Avenue, SE., recommendations to the Secretary and Stop 8036, Washington Navy Yard, DC Notice of Intent To Prepare an 20376–8036. the U.S. Congress that address the Environmental Impact Statement for current capital needs of HBCUs and Comments provided by E–Mail the Recapitalization of Infrastructure should be submitted to capital financing issues of HBCUs, and Supporting Naval Spent Nuclear Fuel to share additional steps in which the [email protected] and Handling and Examination at the Idaho comments provided via phone should HBCU Capital Financing Program might National Laboratory improve its operation. be made by calling 1–866–369–4802. Individuals who will need AGENCY: Department of Energy. FOR FURTHER INFORMATION CONTACT: For accommodations for a disability in order ACTION: Notice of Intent to Prepare an further information about this project, to attend the meeting (e.g., interpreting Environmental Impact Statement; contact Mr. Gregory F. Holden, as services, assistance listening devices, or Notice of Public Meetings. described above. materials in alternative format) should SUPPLEMENTARY INFORMATION: The NNPP notify Donald Watson at 202 219–7037, SUMMARY: Pursuant to the National is responsible for all aspects of U.S. no later than July 16, 2010. We will Environmental Policy Act of 1969 Navy nuclear power and propulsion. attempt to meet requests for (NEPA), as amended (42 U.S.C. 4321 et These responsibilities include design, accommodations after this date but seq.), the Council on Environmental maintenance, and safe operation of cannot guarantee their availability. The Quality regulations for implementing nuclear propulsion systems throughout meeting site is accessible to individuals the procedural provisions of NEPA (40 their operational life cycles. A crucial with disabilities. CFR part 1500–1508), and the component of this mission, naval spent An opportunity for public comment is Department of Energy (DOE) nuclear fuel handling, occurs at the end available on Friday, July 30, 2010, implementing procedures (10 CFR part of a nuclear propulsion system’s useful between 12:30 p.m.–1 p.m. Those 1021), the DOE Naval Nuclear life. Once a naval nuclear core is members of the public interested in Propulsion Program (NNPP) announces depleted, the NNPP is responsible for submitting written comments may do so its intent to prepare an Environmental removal of the spent nuclear fuel

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through a defueling or refueling currently supported, continues to be The proposed EIS will consider the operation. Both operations remove the maintained and operated in a safe and environmental effects related to siting spent nuclear fuel from a reactor core, environmentally responsible manner, a and construction of new facilities for but a refueling operation also involves significant portion of the ECF both of the Recapitalization Projects. installing new fuel into the reactor core, infrastructure has been in service for The NNPP proposes to evaluate three allowing the nuclear-powered ship to be over 50 years. Deterioration of the ECF siting combinations, along with a No- redeployed into the U.S. Navy fleet. infrastructure could immediately and Action Alternative. After the naval spent nuclear fuel has profoundly impact the NNPP mission, Alternative 1—Locate the Spent Fuel been removed from an aircraft carrier or including the NNPP’s ability to support Handling Recapitalization Project and submarine, NNPP spent fuel handling refueling and defueling of nuclear the Examination Recapitalization includes the subsequent transfer, powered submarines and aircraft Project at the NRF at the INL. preparation, and packaging required for carriers. The ECF capabilities to Alternative 2—Locate the Spent Fuel dry storage pending transportation of transfer, prepare, examine, and package Handling Recapitalization Project at the the fuel to a national geologic repository naval spent nuclear fuel, and other NRF and the Examination or interim storage site. irradiated materials are vital to the Recapitalization Project at the Advanced A second component of the mission is NNPP’s mission of maintaining the Test Reactor Complex at the INL. to support the design and maintenance reliable operation of the naval nuclear- Alternative 3—Locate the Spent Fuel of nuclear propulsion systems by powered fleet and developing militarily Handling Recapitalization Project at the providing for the examination of naval effective nuclear propulsion plants. NRF and the Examination spent nuclear fuel and irradiated Consistent with the Record of Recapitalization Project at the Materials materials. This examination includes Decision for the April 1995 DOE and Fuels Complex at the INL. the receipt and unloading of the spent Programmatic EIS for Spent Nuclear No-Action Alternative—Overhaul the nuclear fuel; preparation of irradiated Fuel Management (DOE/EIS–0203–F), ECF. Overhauling includes continuing materials for examination using various naval spent nuclear fuel is shipped by to repair, maintain, refurbish, and visual, microscopic, and metallurgical rail from shipyards and prototype upgrade the ECF as necessary to provide techniques; and preparation of small facilities to NRF for examination and the needed long-term capabilities for fuel and non-fuel test samples for processing. After processing, naval transferring, examining, preparing, and insertion into test reactors, where they spent nuclear fuel is transferred into dry packaging naval spent nuclear fuel. are irradiated. storage containers and placed into Within each of these alternative sites, The NNPP ensures that naval spent temporary storage at NRF, prior to off- there are a number of practical locations nuclear fuel handling and examination site transfer consistent with the Record for facility placement. These location are performed in a safe and options will also be addressed in the environmentally responsible manner in of Decision for the November 1996 Navy EIS for a Container System for EIS. NNPP proposes to address the accordance with 50 U.S.C. 2406, 2511 issues listed below when considering (codifying Executive Order 12344). Management of Naval Spent Nuclear Fuel (DOE/EIS–0251). Ongoing efforts to the potential impacts of the proposed Nuclear fuel handling and examination alternatives in the EIS. This list is are intricate and intensive processes sustain the infrastructure needed to transfer, prepare, examine, and package presented to facilitate public comment requiring a complex infrastructure. during the scoping period and is not Naval spent nuclear fuel handling naval spent nuclear fuel will preserve these essential capabilities and ensure intended to be comprehensive, or to includes the transfer of spent nuclear imply any predetermination of impacts. fuel removed from a reactor to the ECF that the NNPP high standards for protecting the public and the Issues include: at the Naval Reactors Facility (NRF) at • Potential impacts of emissions on environment continue to be met. the INL, where it is received, unloaded, air and water quality. Facility age, however, is expected to prepared, and packaged for disposal. • Potential impacts on plants, cause a growing maintenance burden Currently, naval spent nuclear fuel animals, and their habitats, including and increase the likelihood of examination and the examination of species that are listed by either State or unacceptable workflow interruptions some irradiated specimens are Federal government as threatened, that could adversely impact the fleet. performed at the ECF. Examination of endangered, or of special concern. spent naval fuel and irradiated materials The NNPP proposes to recapitalize • Potential impacts from postulated is essential to the mission of the Navy the infrastructure for transferring, accidents, as well as potential impacts for three reasons: to provide data on preparing, examining, and packaging from acts of terrorism or sabotage. current reactor performance, to validate naval spent nuclear fuel and other • Potential effects on the public models used to predict future irradiated materials, to ensure these health from exposure to hazardous performance, and to support research to capabilities are maintained for the vital materials or radiological releases under improve reactor design. NNPP mission of supporting the naval routine operations. The NNPP is proposing to recapitalize nuclear-powered fleet. The • Potential safety and health impacts the existing ECF infrastructure at the recapitalization is expected to be carried to workers. INL. The purpose of the proposed action out as two projects. The first project will • Impacts on cultural resources, such is to ensure the continued availability of be the Spent Fuel Handling as historic, archeological, and Native the infrastructure needed to support the Recapitalization Project; the second American culturally important sites. transfer, handling, examination, and project will be the Examination • Socioeconomic impacts to the packaging of naval spent nuclear fuel Recapitalization Project. The Spent Fuel potentially affected communities. removed from nuclear-powered aircraft Handling Recapitalization Project will • Compliance with applicable Federal carriers and submarines, as well as from ensure that interfaces and exchanges and state regulations. land-based prototype reactors, and the between handling and examination are • Potential disproportionately high examination of other irradiated factored into detailed designs, to ensure and adverse effects on low-income and materials, for at least the next 40 years. that both projects can be carried out in minority populations (environmental This action is needed because, although an environmentally responsible and justice). the ECF at the NRF, where this work is cost-effective manner. • Cumulative impacts.

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NEPA implementing regulations Issued in Washington, DC, on July 12, SUPPLEMENTARY INFORMATION: The Act require an early and open process for 2010. affords EPA a 45-day period to review, determining the scope of an EIS and for John M. McKenzie, and object, as appropriate, to Title V identifying the significant issues related Director, Regulatory Affairs, Naval Nuclear operating permits proposed by state to the proposed action. Accordingly, Propulsion Program. permitting authorities. Section 505(b)(2) NNPP invites Federal agencies; Tribal, [FR Doc. 2010–17523 Filed 7–19–10; 8:45 am] of the Act authorizes any person to State, and local governments; and the BILLING CODE 6450–01–P petition the EPA Administrator within general public to comment on the scope 60 days after the expiration of the EPA of the planned EIS including review period to object to a Title V identification of reasonable alternatives ENVIRONMENTAL PROTECTION operating permit if EPA has not done so. and specific issues that should be AGENCY A petition must be based only on addressed. NNPP will hold three public objections to the permit that were raised scoping meetings to provide information [Regional Docket Nos. V–2009–1, FRL– with reasonable specificity during the on the Spent Nuclear Fuel Handling and 9176–5] public comment period provided by the Examination Recapitalization Projects state, unless the petitioner demonstrates Clean Air Act Operating Permit and to solicit public concerns and Program; Petition for Objection to that it was impracticable to raise issues comments. Dates, times, and locations State Operating Permit for JP Pulliam during the comment period, or the for these meetings are as follows: Power Plant grounds for the issues arose after this period. August 24, 2010 AGENCY: Environmental Protection On June 25, 2009, EPA received a 6 p.m.–9 p.m. Agency (EPA). petition from the Sierra Club requesting ACTION: Shilo Inn, 780 Lindsay Blvd., Idaho Notice of final order on petition that EPA object to the Title V operating to object to Clean Air Act (Act) Falls, ID 83404. permit for JP Pulliam. The Petitioner operating permit. alleged that the permit is not in August 25, 2010 SUMMARY: This document announces compliance with the requirements of the 6 p.m.–9 p.m. that the EPA Administrator has granted Act. Specifically, the Petitioner alleged a petition from the Sierra Club asking that: (1) The permit omits more Red Lion, 1555 Pocatello Creek Road, stringent applicable particulate matter Pocatello, ID 83201. EPA to object to a Title V operating permit for the Wisconsin Public Service (PM) emission limits for certain boilers August 26, 2010 Corporation’s, JP Pulliam Power Plant because the units are: (a) Subject to the (JP Pulliam) issued by the Wisconsin lower limits established in a 6 p.m.–9 p.m. Department of Natural Resources preconstruction permit issued on Canyon Springs Red Lion, 1357 Blue (WDNR). October 15, 2008, and/or (b) subject to Lakes Blvd. North, Twin Falls, ID Sections 307(b) and 505(b)(2) of the a State Implementation Plan provision 83301. Act provide that a petitioner may ask for providing for a lower PM limit for units judicial review of those portions of the modified after April 1972 because these Persons unable to attend these petition which EPA denies in the units were modified in the late 1980s; meetings may view meeting information United States Court of Appeals for the (2) the permit omits the maximum by visiting the NNPP Web site http:// appropriate circuit. Any petition for hourly heat input limits that are www.ecfrecapitalization.us. NNPP will review shall be filed within 60 days applicable because they were contained provide additional notification of the from the date this notice appears in the in a preconstruction permit application meeting times and locations through Federal Register, pursuant to section submitted by the permittee and relied newspaper advertisements and other 307 of the Act. However, EPA did not upon by WDNR to issue a New Source appropriate media. deny any portion of the petition that is Review synthetic minor permit; and (3) At each scoping meeting, NNPP plans the subject of the response announced the permit’s PM monitoring for the today. to hold an open house for the first hour boilers and PM and visible emissions prior to beginning the formal portion of ADDRESSES: You may review copies of monitoring for certain material handling the meeting to allow participants to the final order, the petition, and other sources are deficient. supporting information at the EPA register to provide oral comments and On June 28, 2010, the Administrator Region 5 Office, 77 West Jackson view informational materials. The issued an order granting the JP Pulliam registration table will have an oral Boulevard, Chicago, Illinois 60604. If you wish to examine these documents, petition. The Order explains the reasons comment registration form as well as a behind EPA’s conclusion. sign-up sheet for those who do not wish you should make an appointment at to give oral comments but who would least 24 hours before visiting day. Date: July 9, 2010. like to be included on the mailing list Additionally, the final order for the JP Susan Hedman, Pulliam Power Plant petition is to receive either printed or electronic Regional Administrator, Region 5. available electronically at: http:// information about the project in the [FR Doc. 2010–17678 Filed 7–19–10; 8:45 am] www.epa.gov/region07/programs/artd/ future. The public may provide written BILLING CODE 6560–50–P air/title5/petitiondb/petitiondb.htm. and/or oral comments at the scoping FOR FURTHER INFORMATION CONTACT: meetings. Pamela Blakley, Chief, Air Permits All public comments received during Section, Air Programs Branch, Air and the scoping meetings, as well as those Radiation Division, EPA, Region 5, 77 submitted as described above, will be West Jackson Boulevard, Chicago, considered during the development of Illinois 60604, telephone (312) 886– the EIS. 4447.

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ENVIRONMENTAL PROTECTION appropriate. As part of these reviews, ACTION: Notice of Proposed Settlement AGENCY NCEA assesses newly available Agreements; Request for Public scientific information and develops ISA Comment [FRL–9176–8] documents (formerly known as Criteria SUMMARY: In accordance with section Workshop To Review Initial Health Documents) that provide the scientific basis for the reviews of the NAAQS for 113(g) of the Clean Air Act, as amended Effects Draft Materials for the Ozone (‘‘CAA’’ or the ‘‘Act’’), 42 U.S.C. 7413(g), O3, particulate matter, carbon (O3) Integrated Science Assessment notice is hereby given of six proposed (ISA) monoxide, nitrogen oxides, sulfur oxides, and lead. Based on the settlement agreements to address AGENCY: Environmental Protection information in the ISA, EPA’s Office of lawsuits filed by the American Agency (EPA). Air Quality Planning and Standards Chemistry Council, the American Public ACTION: Notice of workshop. (OAQPS) typically conducts Gas Association, the American quantitative and qualitative risk and Petroleum Institute, et al., the Energy SUMMARY: As part of the review of the exposure assessments. The ISA and the Recovery Council, the Fertilizer air quality criteria and National risk/exposure assessments are used to Institute, and the Utility Air Regulatory Ambient Air Quality Standard (NAAQS) prepare a policy assessment that Group (collectively ‘‘Petitioners’’) in the for Ozone (O3), EPA is announcing that informs subsequent rulemaking actions. United States Court of Appeals for the a workshop to evaluate initial draft NCEA–RTP is holding this workshop District of Columbia: American materials for the health effects sections to inform the Agency’s evaluation of the Chemistry Council v. EPA, No. 09–1325 of the O3 Integrated Science Assessment scientific evidence for the review of the (D.C. Cir.) and consolidated cases. (ISA) is being organized by EPA’s Petitioners filed petitions for review of NAAQS for O3. The purpose of the National Center for Environmental workshop is to obtain a review of the EPA’s final rule entitled ‘‘Mandatory Assessment (NCEA) within the Office of scientific content of initial draft Reporting of Greenhouse Gases’’, Research and Development (ORD). The materials or sections for the draft ISA. published at 75 FR 56,260 (October 30, workshop will be held on August 6, Workshop sessions will include a 2009). Under the terms of the proposed 2010, in Research Triangle Park, NC, review and discussion of initial draft settlement agreements, Petitioners and will be open to attendance by sections on the health effects evidence would dismiss their claims if EPA interested public observers on a first- from in vivo and in vitro animal proposes and, after notice and comment, come, first-served basis up to the limits toxicology, human clinical, and takes final action on certain revisions to of available space. epidemiology studies. In addition, the final rule. DATES: The workshop will be held on roundtable discussions will help DATES: Written comments on the August 6, 2010. identify key studies or concepts within proposed settlement agreements must be ADDRESSES: The workshop will be held each discipline to assist EPA in received by August 19, 2010. in the auditorium of EPA’s main integrating within and across ADDRESSES: Submit your comments, campus, 109 T.W. Alexander Drive, disciplines. This workshop is planned identified by Docket ID number EPA– Research Triangle Park, NC. An EPA to help ensure that the ISA is up-to-date HQ–OGC–2010–0575, online at http:// contractor, Versar, is providing and focuses on the key evidence to www.regulations.gov (EPA’s preferred logistical support for the workshop. inform the scientific understanding for method); by e-mail to FOR FURTHER INFORMATION CONTACT: the review of the NAAQS for O3. EPA [email protected]; by mail to EPA Questions regarding information, is planning to release the first external Docket Center, Environmental registration, and logistics for the review draft ISA for O3 for review by the Protection Agency, Mailcode: 2822T, workshop should be directed to Clean Air Scientific Advisory 1200 Pennsylvania Ave., NW., Bethzaida Colon, Versar, Inc., Committee (CASAC) and the public in Washington, DC 20460–0001; or by Conference Coordinator, 6850 Versar November 2010. hand delivery or courier to EPA Docket Center, Springfield, VA 22151, Center, EPA West, Room 3334, 1301 II. Workshop Information telephone: 703–642–6727; facsimile: Constitution Ave., NW., Washington, 703–642–6809; e-mail: Members of the public may attend the DC, between 8:30 a.m. and 4:30 p.m. [email protected]. Questions workshop as observers. Space is limited, Monday through Friday, excluding legal regarding the scientific and technical and reservations will be accepted on a holidays. Comments on a disk or CD– aspects of the workshop should be first-come, first-served basis. ROM should be formatted in Word or directed to Dr. James Brown, telephone: Dated: July 14, 2010. ASCII file, avoiding the use of special characters and any form of encryption, 919–541–0765; facsimile: 919–541– Rebecca Clark, 1818; e-mail: [email protected] or and may be mailed to the mailing Acting Director, National Center for address above. Dr. Lisa Vinikoor, telephone: 919–541– Environmental Assessment. 2931; facsimile: 919–541–5078; e-mail: FOR FURTHER INFORMATION CONTACT: [FR Doc. 2010–17684 Filed 7–19–10; 8:45 am] [email protected]. Carol Holmes, Air and Radiation Law BILLING CODE 6560–50–P SUPPLEMENTARY INFORMATION: Office (2344A), Office of General Counsel, U.S. Environmental Protection I. Summary of Information About the Agency, 1200 Pennsylvania Ave., NW., Workshop ENVIRONMENTAL PROTECTION AGENCY Washington, DC 20460; telephone: (202) Section 109(d) of the Clean Air Act 564–8709; fax number (202) 564–5603; requires the U.S. Environmental email address:[email protected]. [FRL–9176–9] Protection Agency (EPA) to conduct SUPPLEMENTARY INFORMATION: periodic reviews of the air quality Proposed Settlement Agreements, I. Additional Information About the criteria for each air pollutant listed Clean Air Act Citizen Suit under section 108 of the Act. Based on Proposed Settlement Agreements such review, EPA is to retain or revise AGENCY: Environmental Protection On September 22, 2009, EPA finalized the NAAQS for a given pollutant as Agency (EPA). the first comprehensive reporting

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program for greenhouse gases (‘‘GHGs’’) and taking final action on four primary system, key in the appropriate docket under the Clean Air Act (‘‘CAA’’ or ‘‘the categories of changes to the 2009 Final identification number then select Act’’). 75 FR 56,260 (October 30, 2009) GHG Reporting Rule: (1) Revising the ‘‘search’’. (‘‘2009 Final GHG Reporting Rule’’). The applicability threshold for one source It is important to note that EPA’s 2009 Final GHG Reporting Rule requires category; (2) revising the threshold for policy is that public comments, whether reporting of greenhouse gas emissions more stringent monitoring for one type submitted electronically or on paper, from large sources and suppliers in the of combustion source; (3) providing an will be made available for public United States, and is intended to collect option to request the continued use of viewing online at http:// accurate and timely emissions data to best available monitoring methods until www.regulations.gov without change, inform future policy decisions. Under 2015 if, at a complex facility, a unless the comment contains the rule, suppliers of fossil fuels or shutdown or hot tap is required to copyrighted material, CBI, or other industrial greenhouse gases, install measurement equipment; and (4) information whose disclosure is manufacturers of vehicles and engines, generally revising monitoring, restricted by statute. Information and facilities that emit 25,000 metric recordkeeping and reporting claimed as CBI and other information tons or more per year of GHG emissions requirements in various subparts. whose disclosure is restricted by statute are required to submit annual reports to For a period of thirty (30) days is not included in the official public EPA. The rule became effective following the date of publication of this docket or in the electronic public December 29, 2009. notice, the Agency will accept written docket. EPA’s policy is that copyrighted Eight petitions for review were filed comments relating to the proposed material, including copyrighted material in the DC Circuit challenging the 2009 settlement agreements from persons contained in a public comment, will not Final GHG Reporting Rule: American who were not named as parties or be placed in EPA’s electronic public Chemistry Council (09–1325); Energy intervenors to the litigation in question. docket but will be available only in Recovery Council (09–1326); American EPA or the Department of Justice may printed, paper form in the official public Petroleum Institute and National withdraw or withhold consent to the docket. Although not all docket Petroleum Refiners Association (09– proposed settlement agreements if the materials may be available 1328); The Fertilizer Institute (09–1329); comments disclose facts or electronically, you may still access any American Public Gas Association (09– considerations that indicate that such of the publicly available docket 1331); Kinder Morgan CO2 Co., LP (09– consent is inappropriate, improper, materials through the EPA Docket 1332); Utility Air Regulatory Group (09– inadequate, or inconsistent with the Center. 1333); and Environmental Defense Fund requirements of the Act. Unless EPA or B. How and to whom do I submit (09–1334). Five petitioners or groups of the Department of Justice determines, comments? petitioners also filed petitions for based on any comment submitted, that You may submit comments as reconsideration of the 2009 Final GHG consent to these settlement agreements provided in the ADDRESSES section. Reporting Rule (American Public Gas should be withdrawn, the terms of the Please ensure that your comments are Association; American Petroleum agreements will be affirmed. Institute, et al.; the Energy Recovery submitted within the specified comment Council; the Utility Air Regulatory II. Additional Information About period. Comments received after the Group; and the Environmental Defense Commenting on the Proposed close of the comment period will be Fund). Both the petitions for review in Settlement Agreements marked ‘‘late.’’ EPA is not required to the DC Circuit, and the petitions for consider these late comments. A. How can I get a copy of the If you submit an electronic comment, reconsideration, raise issues with the settlement agreements? final requirements of the 2009 Final EPA recommends that you include your GHG Reporting Rule. Upon EPA’s The official public docket for this name, mailing address, and an e-mail motion, on February 22, 2010, the court action (identified by Docket ID No. address or other contact information in issued an order holding the EPA–HQ–OGC–2010–0575) contains the body of your comment and with any consolidated cases in abeyance pending copies of the proposed settlement disk or CD–ROM you submit. This EPA’s consideration of the petitions for agreements. The official public docket is ensures that you can be identified as the reconsideration and the parties’ available for public viewing at the submitter of the comment and allows settlement discussions. Office of Environmental Information EPA to contact you in case EPA cannot Under the proposed settlement (OEI) Docket in the EPA Docket Center, read your comment due to technical agreements being noticed today, five EPA West, Room 3334, 1301 difficulties or needs further information petitions for review would be dismissed Constitution Ave., NW., Washington, on the substance of your comment. Any in their entirety, and one dismissed in DC. The EPA Docket Center Public identifying or contact information part, if EPA proposes and finalizes Reading Room is open from 8:30 a.m. to provided in the body of a comment will certain revisions to the 2009 Final GHG 4:30 p.m., Monday through Friday, be included as part of the comment that Reporting Rule. The administrative excluding legal holidays. The telephone is placed in the official public docket, petitions filed by the settling parties number for the Public Reading Room is and made available in EPA’s electronic also would be deemed withdrawn under (202) 566–1744, and the telephone public docket. If EPA cannot read your the terms of the proposed settlement number for the OEI Docket is (202) 566– comment due to technical difficulties agreements. Two petitions for review— 1752. and cannot contact you for clarification, that of the Environmental Defense Fund An electronic version of the public EPA may not be able to consider your and that of Kinder Morgan CO2 Co., docket is available through http:// comment. LP—would not be settled at this time. www.regulations.gov. You may use Use of the http://www.regulations.gov Rather, these petitions would continue http://www.regulations.gov to submit or Web site to submit comments to EPA to be held in abeyance, pending further view public comments, access the index electronically is EPA’s preferred method settlement discussions or action by EPA listing of the contents of the official for receiving comments. The electronic that renders the petition(s) moot. public docket, and to access those public docket system is an ‘‘anonymous Pursuant to the proposed settlement documents in the public docket that are access’’ system, which means EPA will agreements, EPA would be proposing available electronically. Once in the not know your identity, e-mail address,

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or other contact information unless you be directed to Enesta Jones, EPA Office other SAB members evaluated and provide it in the body of your comment. of Public Affairs (OPA), at commented on EPA’s proposed scope of In contrast to EPA’s electronic public [email protected] or (202) 564– study and key research questions docket, EPA’s electronic mail (e-mail) 7873. regarding the potential public health system is not an ‘‘anonymous access’’ SUPPLEMENTARY INFORMATION: and environmental protection issues system. If you send an e-mail comment that may be associated with hydraulic directly to the Docket without going Background fracturing [Federal Register Notice through http://www.regulations.gov, The SAB (42 U.S.C. 4365) is a dated March 18, 2010 (75 FR 13125)]. your e-mail address is automatically chartered Federal Advisory Committee On June 24, 2010 the SAB provided the captured and included as part of the that provides independent scientific and EPA Administrator with an advisory comment that is placed in the official technical peer review, advice, report that included recommendations public docket, and made available in consultation, and recommendations to of the EEC, Advisory on EPA’s Research EPA’s electronic public docket. the EPA Administrator on the technical Scoping Document Related to Hydraulic Dated: July 14, 2010. basis for EPA actions. As a Federal Fracturing, EPA–SAB–10–009. Advisory Committee, the SAB conducts EPA’s next step is to develop a draft Richard B. Ossias, Study Plan for its hydraulic fracturing Associate General Counsel. business in accordance with the Federal Advisory Committee Act (FACA) (5 research. EPA has requested that the [FR Doc. 2010–17700 Filed 7–19–10; 8:45 am] U.S.C. App. 2) and related regulations. SAB review its draft Study Plan. The BILLING CODE 6560–50–P The SAB will comply with the SAB Staff Office will form a new expert provisions of FACA and all appropriate Panel to review EPA’s draft Study Plan SAB Staff Office procedural policies. and review the Study results if SAB is ENVIRONMENTAL PROTECTION requested to do so by ORD. The new, ad AGENCY Hydraulic fracturing (or hydrofracking) generates vertical and hoc panel is being formed to include [FRL–9176–3] horizontal fractures in underground expertise focused on the specific geologic formations to facilitate directions of the ORD research. Science Advisory Board Staff Office; extraction of gas (or oil) from the Request for Nominations Request for Nominations of Experts for subsurface. While each formation has The SAB Staff Office is seeking the SAB Hydraulic Fracturing Review unique characteristics and features, the Panel nominations of nationally and general process involves drilling a internationally recognized scientists and AGENCY: Environmental Protection vertical well, extending the well bore engineers having experience and Agency (EPA). horizontally into the formation, expertise in the following areas: ACTION: Notice. removing water, injecting hydrofracking petroleum (including natural gas) fluids and then extracting the natural engineering and petroleum geology, SUMMARY: The EPA Science Advisory gas along with separation and particularly with experience in Board (SAB) Staff Office is requesting management of fluids. Over the past few hydraulic fracturing and well testing public nominations for technical experts years, the use of hydraulic fracturing mechanical integrity; hydrology and to form an SAB Ad Hoc Panel to review has increased. At the same time, hydrogeology; geophysics; water EPA’s draft Hydraulic Fracturing Study concern has been expressed by the quality; chemistry and geochemistry, Plan to investigate the potential public public regarding the potential particularly with experience in health and environmental protection environmental impacts of hydraulic chemical fate and transport, oxidation- research issues that may be associated fracturing. In the Congressional reduction reactions, gas-liquid with hydraulic fracturing. Appropriations Conference Report for exchange, and solubility; analytical DATES: Nominations should be Fiscal Year 2010, the conferees chemistry, particularly regarding trace submitted by August 10, 2010 per urge[d] the Agency to carry out a study on organics and environmental monitoring; instructions below. the relationship between hydraulic fracturing statistics, particularly regarding FOR FURTHER INFORMATION CONTACT: Any and drinking water, using a credible experimental design of field studies; member of the public wishing further approach that relies on the best available human health effects and risk science, as well as independent sources of information regarding this Notice and assessment; civil and environmental Request for Nominations may contact information. The conferees expect the study to be conducted through a transparent, peer- engineering; chemical engineering; Mr. Edward Hanlon, Designated Federal reviewed process that will ensure the validity drinking water treatment systems; Officer (DFO), SAB Staff Office, by and accuracy of the data. The Agency shall wastewater treatment systems; and telephone/voice mail at (202) 564–2134, consult with other Federal agencies as well social, behavioral, and decision by fax at (202) 565–2098, or via e-mail as appropriate State and interstate regulatory sciences. at [email protected]. General agencies in carrying out the study, which information concerning the EPA Science should be prepared in accordance with the Process and Deadline for Submitting Advisory Board can be found at the EPA Agency’s quality assurance principles. Nominations SAB Web site at: http://www.epa.gov/ To respond to concerns that have Any interested person or organization sab. Any inquiry regarding EPA’s been voiced by the public, and to meet may nominate qualified individuals in planned research approaches to study the Congressional request, EPA is the areas of expertise described above the potential public health and initiating a study on the potential for possible service on this expert ad environmental protection issues that environmental and human health hoc Panel. Nominations should be may be associated with hydraulic implications of HF with special submitted in electronic format (which is fracturing should be directed to Robert emphasis on the relationship between preferred over hard copy) following the Puls, EPA Office of Research and hydraulic fracturing and drinking water instructions for ‘‘Nominating Experts to Development (ORD), at resources. At a public face-to-face Advisory Panels and Ad Hoc [email protected] or (580) 436–8543. meeting of the SAB Environmental Committees Being Formed’’ provided on Media inquiries regarding EPA’s draft Engineering Committee (EEC) on April the SAB Web site. The instructions can Hydraulic Fracturing Study Plan should 7–8, 2010, the SAB EEC augmented with be accessed through the ‘‘Nomination of

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Experts’’ link on the blue navigational conflicts of interest; (d) absence of an DATES: Effective July 20, 2010. bar on the SAB Web site at http:// appearance of a lack of impartiality; and FOR FURTHER INFORMATION CONTACT: Mr. www.epa.gov/sab. To receive full (e) skills working in committees, Lawrence Calvert, Jr., Associate General consideration, nominations should subcommittees and advisory panels; Counsel, or Lorenzo Holloway, include all of the information requested. and, for the Panel as a whole, (f) Assistant General Counsel, 999 E Street, EPA’s SAB Staff Office requests: diversity of expertise and viewpoints. NW., Washington, DC 20463, (202) 694– contact information about the person EPA values and welcomes diversity. In 1650 or (800) 424–9530. making the nomination; contact an effort to increase diversity, we seek SUPPLEMENTARY INFORMATION: The information about the nominee; the nominations of women and men of all Commission is adopting a new disciplinary and specific areas of racial and ethnic groups. procedure to provide a means for expertise of the nominee; the nominee’s The SAB Staff Office’s evaluation of persons and entities to have a legal curriculum vita; sources of recent grant an absence of financial conflicts of question considered by the Commission and/or contract support; and a interest will include a review of the earlier in both the report review process biographical sketch of the nominee ‘‘Confidential Financial Disclosure Form and the audit process. Specifically, indicating current position, educational for Special Government Employees when the Office of Compliance (‘‘OC’’) background, research activities, and Serving on Federal Advisory (which includes the Report Analysis recent service on other national Committees at the U.S. Environmental Division and the Audit Division) advisory committees or national Protection Agency’’ (EPA Form 3110– requests that a person or entity take professional organizations. 48). This confidential form allows corrective action during the report Persons having questions about the Government officials to determine review or audit process, if the person or nomination procedures, or who are whether there is a statutory conflict entity disagrees with the request based unable to submit nominations through between that person’s public upon a material dispute on a question the SAB Web site, should contact Mr. responsibilities (which includes of law, the person or entity may seek Edward Hanlon, DFO, as indicated membership on an EPA Federal Commission consideration of the issue above in this notice. Nominations advisory committee) and private pursuant to this procedure. should be submitted in time to arrive no interests and activities, or the later than August 10, 2010. In an effort appearance of a lack of impartiality, as I. Procedures to obtain nominations of diverse defined by Federal regulation. The form Within 15 days of a determination by candidates, EPA encourages may be viewed and downloaded from the Reports Analysis Division or Audit nominations of women and men of all the following URL address http:// Division that a person or entity remains racial and ethnic groups. www.epa.gov/sab/pdf/epaform3110– obligated to take corrective action to The EPA SAB Staff Office will 48.pdf. resolve an issue that has arisen during acknowledge receipt of nominations. The approved policy under which the the report review or audit process, the The names and biosketches of qualified EPA SAB Office selects subcommittees person or entity may seek Commission nominees identified by respondents to and review panels is described in the consideration if a material dispute on a this Federal Register notice, and following document: Overview of the question of law exists with respect to additional experts identified by the SAB Panel Formation Process at the the recommended corrective action.1 Staff, will be posted in a List of Environmental Protection Agency Any request for consideration by a Candidates on the SAB Web site at Science Advisory Board (EPA–SAB–EC– committee during the report review http://www.epa.gov/sab. Public 02–010), which is posted on the SAB process or the audit process shall be comments on this List of Candidates Web site at http://www.epa.gov/sab/pdf/ limited to questions of law on material will be accepted for 21 calendar days. ec02010.pdf. issues, when: (1) The legal issue is The public will be requested to provide novel, complex, or pertains to an relevant information or other Dated: July 13, 2010. unsettled question of law; (2) there has documentation on nominees that the Anthony F. Maciorowski, been intervening legislation, SAB Staff Office should consider in Deputy Director, EPA Science Advisory Board rulemaking, or litigation since the evaluating candidates. Staff Office. For the EPA SAB Staff Office, a Commission last considered the issue; [FR Doc. 2010–17682 Filed 7–19–10; 8:45 am] or (3) the request is contrary to or balanced subcommittee or review panel BILLING CODE 6560–50–P includes candidates who possess the otherwise inconsistent with prior necessary domains of knowledge, the Commission matters dealing with the same issue. The request must specify relevant scientific perspectives (which, FEDERAL ELECTION COMMISSION among other factors, can be influenced the question of law at issue and why it by work history and affiliation), and the [Notice 2010–13] is subject to Commission consideration. collective breadth of experience to It should discuss, when appropriate, adequately address the charge. In Policy Statement Establishing a Pilot prior Commission matters raising the forming this expert ad hoc Hydraulic Program for Requesting Consideration same issue, relevant court decisions, Fracturing Review Panel, the SAB Staff of Legal Questions by the Commission and any other analysis of the issue that may assist the Commission in its Office will consider public comments AGENCY: Federal Election Commission. decision-making. The Commission will on the List of candidates, information ACTION: Policy statement. provided by the candidates themselves, not consider factual disputes under this and background information SUMMARY: The Federal Election procedure, and any requests for independently gathered by the SAB Commission (‘‘Commission’’) is adopting consideration other than on questions of Staff Office. Selection criteria to be used a new pilot program for a procedure to law on material issues will not be for Panel membership include: (a) provide a means for persons and entities granted. Scientific and/or technical expertise, to have a legal question considered by 1 Many disputes involving corrective action knowledge, and experience (primary the Commission earlier in both the requests hinge on questions of fact rather than factors); (b) availability and willingness report review process and the audit questions of law, and thus are not appropriate for to serve; (c) absence of financial process. this procedure.

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All requests should be directed to the On behalf of the Commission. c. Ways to enhance the quality, Commission Secretary, Federal Election Matthew S. Petersen, utility, and clarity of the information to Commission, 999 E Street, NW., Chairman, Federal Election Commission. be collected; and Washington, DC 20463. Upon receipt of [FR Doc. 2010–17646 Filed 7–19–10; 8:45 am] d. Ways to minimize the burden of such a request, the Commission BILLING CODE 6715–01–P information collection on respondents, Secretary shall forward a copy to each including through the use of automated Commissioner, the General Counsel, collection techniques or other forms of and the Staff Director. Within five information technology. business days of notification to the FEDERAL RESERVE SYSTEM DATES: Comments must be submitted on Commissioners, if two or more or before September 20, 2010. Commissioners agree that the Proposed Agency Information ADDRESSES: You may submit comments, Commission should consider the issue, Collection Activities; Comment identified by Regulation F, by any of the the Office of General Counsel (‘‘OGC’’) Request following methods: will prepare a recommendation and, • within 15 business days thereafter, AGENCY: Board of Governors of the Agency Web Site: http:// circulate the recommendation in Federal Reserve System. www.federalreserve.gov. Follow the accordance with all applicable SUMMARY: Background. On June 15, instructions for submitting comments at Commission directives. After the 1984, the Office of Management and http://www.federalreserve.gov/ Budget (OMB) delegated to the Board of generalinfo/foia/ProposedRegs.cfm. recommendation is circulated for a • Commission vote, in the event of an Governors of the Federal Reserve Federal eRulemaking Portal: http:// objection, the matter shall be System (Board) its approval authority www.regulations.gov. Follow the under the Paperwork Reduction Act instructions for submitting comments. automatically placed on the next • meeting agenda consistent with the (PRA), as per 5 CFR 1320.16, to approve E-mail: Sunshine Act, 5 U.S.C. 552b(g), and of and assign OMB control numbers to [email protected]. applicable Commission regulations, 11 collection of information requests and Include docket number in the subject CFR part 2. However, if within 60 requirements conducted or sponsored line of the message. • business days of the filing of a request by the Board under conditions set forth Fax: 202/452–3819 or 202/452– for consideration, the Commission has in 5 CFR 1320 Appendix A.1. Board- 3102. • not resolved the issue or provided approved collections of information are Mail: Jennifer J. Johnson, Secretary, guidance on how to proceed with the incorporated into the official OMB Board of Governors of the Federal matter by the affirmative vote of four or inventory of currently approved Reserve System, 20th Street and more Commissioners, the OC may collections of information. Copies of the Constitution Avenue, NW., Washington, proceed with the matter. Paperwork Reduction Act Submission, DC 20551. This procedure is not intended to supporting statements and approved All public comments are available from circumvent or supplant the Advisory collection of information instruments the Board’s Web site at http:// Opinion process provided under 2 are placed into OMB’s public docket www.federalreserve.gov/generalinfo/ U.S.C. 437f and 11 CFR part 112. files. The Federal Reserve may not foia/ProposedRegs.cfm as submitted, Accordingly, any legal issues that conduct or sponsor, and the respondent unless modified for technical reasons. qualify for consideration under the is not required to respond to, an Accordingly, your comments will not be Advisory Opinion process are not information collection that has been edited to remove any identifying or appropriate for consideration under this extended, revised, or implemented on or contact information. Public comments new procedure. Additionally, this after October 1, 1995, unless it displays may also be viewed electronically or in policy statement does not supersede the a currently valid OMB control number. paper form in Room MP–500 of the procedures regarding eligibility and Request for Comment on Information Board’s Martin Building (20th and C entitlement to public funds set forth in Collection Proposal Streets, NW.) between 9 a.m. and 5 p.m. Commission Directive 24 and 11 CFR on weekdays. 9005.1, 9033.4, 9033.6, or 9033.10. The following information collection, Additionally, commenters should which is being handled under this send a copy of their comments to the II. Pilot Program delegated authority, has received initial OMB Desk Officer by mail to the Office This agency procedure is being Board approval and is hereby published of Information and Regulatory Affairs, established as a pilot program. The pilot for comment. At the end of the comment U.S. Office of Management and Budget, program will last one year from the time period, the proposed information New Executive Office Building, Room that this policy is approved. After one collection, along with an analysis of 10235, 725 17th Street, NW., year, a vote will be scheduled on comments and recommendations Washington, DC 20503 or by fax to 202– whether the program should continue. received, will be submitted to the Board 395–6974. Four affirmative votes will be required for final approval under OMB delegated FOR FURTHER INFORMATION CONTACT: A to extend or make permanent the authority. Comments are invited on the copy of the PRA OMB submission, program. The program will be following: including the proposed reporting form terminated after that vote if there are not a. Whether the proposed collection of and instructions, supporting statement, four affirmative votes to make the information is necessary for the proper and other documentation will be placed program permanent or to extend it for performance of the Federal Reserve’s into OMB’s public docket files, once some time period. The Commission may functions; including whether the approved. These documents will also be terminate or modify this pilot program information has practical utility; made available on the Federal Reserve through additional policy statements b. The accuracy of the Federal Board’s public Web site at: http:// prior to the twelfth month of the pilot Reserve’s estimate of the burden of the www.federalreserve.gov/boarddocs/ program by an affirmative vote of four proposed information collection, reportforms/review.cfm or may be of its members. including the validity of the requested from the agency clearance Dated: July 15, 2010. methodology and assumptions used; officer, whose name appears below.

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Michelle Shore, Federal Reserve reviewed and approved by the bank’s DEPARTMENT OF HEALTH AND Board Clearance Officer (202–452– board of directors at least annually. HUMAN SERVICES 3829), Division of Research and Board of Governors of the Federal Reserve Statistics, Board of Governors of the System, July 15, 2010. Office of the National Coordinator for Health Information Technology; HIT Federal Reserve System, Washington, Jennifer J. Johnson, DC 20551. Telecommunications Device Standards Committee Advisory Secretary of the Board. for the Deaf (TDD) users may contact Meeting; Notice of Meeting (202–263–4869), Board of Governors of [FR Doc. 2010–17614 Filed 7–19–10; 8:45 am] AGENCY: Office of the National the Federal Reserve System, BILLING CODE 6210–01–P Coordinator for Health Information Washington, DC 20551. Technology, HHS. Proposal To Approve Under OMB FEDERAL RESERVE SYSTEM ACTION: Notice of meeting. Delegated Authority the Implementation of the Following Notice of Proposals to Engage in This notice announces a forthcoming Information Collection Permissible Nonbanking Activities or meeting of a public advisory committee to Acquire Companies that are of the Office of the National Coordinator Report title: Recordkeeping Engaged in Permissible Nonbanking for Health Information Technology Requirements Associated with Activities (ONC). The meeting will be open to the Limitations on Interbank Liabilities. public. Agency form number: Regulation F. The companies listed in this notice Name of Committee: HIT Standards OMB control number: 7100–NEW. have given notice under section 4 of the Committee. Frequency: On occasion. Bank Holding Company Act (12 U.S.C. General Function of the Committee: Reporters: State member banks and 1843) (BHC Act) and Regulation Y (12 To provide recommendations to the insured domestic branches of foreign CFR Part 225) to engage de novo, or to National Coordinator on standards, banks. acquire or control voting securities or implementation specifications, and Estimated annual reporting hours: assets of a company, including the certification criteria for the electronic 6,808 hours. companies listed below, that engages exchange and use of health information Estimated average hours per response: either directly or through a subsidiary or for purposes of adoption, consistent 8 hours. other company, in a nonbanking activity with the implementation of the Federal Number of respondents: 851. that is listed in § 225.28 of Regulation Y Health IT Strategic Plan, and in General description of report: This (12 CFR 225.28) or that the Board has accordance with policies developed by information collection is mandatory determined by Order to be closely the HIT Policy Committee. pursuant to section 23 of the Federal related to banking and permissible for Date and Time: The meeting will be Reserve Act, as added by section 308 of bank holding companies. Unless held on July 28, 2010, from 9 a.m. to 3 the Federal Deposit Insurance otherwise noted, these activities will be p.m./Eastern Time. Corporation Improvement Act of 1991 conducted throughout the United States. Location: The Omni Shoreham Hotel, (FDICIA) (12 U.S.C. 371b–2). Because Each notice is available for inspection 2500 Calvert Street, NW., Washington, the Federal Reserve does not collect any at the Federal Reserve Bank indicated. DC. The hotel telephone number is 202– information, no issue of confidentiality The notice also will be available for 234–0700. normally arises. However, if a inspection at the offices of the Board of Contact Person: Judy Sparrow, Office compliance program becomes a Board Governors. Interested persons may of the National Coordinator, HHS, 330 C record during an examination, the express their views in writing on the Street, SW., Washington, DC 20201, information may be protected from question whether the proposal complies 202–205–4528, Fax: 202–690–6079, e- disclosure under exemptions (b)(4) and with the standards of section 4 of the mail: [email protected]. Please call (b)(8) of the Freedom of Information Act BHC Act. Additional information on all the contact person for up-to-date (5 U.S.C. 552(b)(4) and (b)(8)). bank holding companies may be information on this meeting. A notice in Abstract: Pursuant to FDICIA, the obtained from the National Information the Federal Register about last minute Federal Reserve is required to prescribe Center website at www.ffiec.gov/nic/. modifications that impact a previously standards to limit the risks posed by announced advisory committee meeting exposure of insured depository Unless otherwise noted, comments cannot always be published quickly institutions to the depository regarding the applications must be enough to provide timely notice. institutions with which they do received at the Reserve Bank indicated Agenda: The committee will hear business (correspondents). Regulation F or the offices of the Board of Governors reports from its workgroups, including generally requires banks to develop and not later than August 4, 2010. the Clinical Operations, Clinical implement internal prudential policies A. Federal Reserve Bank of Kansas Quality, Privacy & Security Tiger Team, and procedures to evaluate and control City (Dennis Denney, Assistant Vice and Enrollment Workgroups. ONC exposure to correspondents. Section President) 1 Memorial Drive, Kansas intends to make background material 206.3 of Regulation F stipulates that a City, Missouri 64198–0001: available to the public no later than two bank shall establish and maintain 1. Bank of Choice Holding Company, (2) business days prior to the meeting. written policies and procedures to Greeley, Colorado; to engage de novo in If ONC is unable to post the background prevent excessive exposure to any lending activities, pursuant to section material on its Web site prior to the individual correspondent in relation to 225.28(b)(1) of Regulation Y. meeting, it will be made publicly the condition of the correspondent. In available at the location of the advisory these policies and procedures, a bank Board of Governors of the Federal Reserve committee meeting, and the background should take into account credit and System, July 15, 2010. material will be posted on ONC’s Web liquidity risks, including operational Robert deV. Frierson, site after the meeting, at http:// risks, in selecting correspondents and Deputy Secretary of the Board. healthit.hhs.gov. terminating those relationships. The [FR Doc. 2010–17626 Filed 7–19–10; 8:45 am] Procedure: Interested persons may policies and procedures should be BILLING CODE 6210–01–S present data, information, or views,

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orally or in writing, on issues pending General Function of the Committee: ONC welcomes the attendance of the before the committee. Written To provide recommendations to the public at its advisory committee submissions may be made to the contact National Coordinator on a policy meetings. Seating is limited at the person on or before July 22, 2010. Oral framework for the development and location, and ONC will make every comments from the public will be adoption of a nationwide health effort to accommodate persons with scheduled between approximately 2 and information technology infrastructure physical disabilities or special needs. If 3 p.m. e.t. Time allotted for each that permits the electronic exchange and you require special accommodations presentation will be limited to three use of health information as is due to a disability, please contact Judy minutes each. If the number of speakers consistent with the Federal Health IT Sparrow at least seven (7) days in requesting to comment is greater than Strategic Plan and that includes advance of the meeting. can be reasonably accommodated recommendations on the areas in which ONC is committed to the orderly during the scheduled open public standards, implementation conduct of its advisory committee hearing session, ONC will take written specifications, and certification criteria meetings. Please visit our Web site at comments after the meeting until close are needed. http://healthit.hhs.gov for procedures of business. Date and Time: The meeting will be on public conduct during advisory Persons attending ONC’s advisory held on July 21, 2010, from 9:30 a.m. to committee meetings. committee meetings are advised that the 4 p.m. e.t. Notice of this meeting is given under agency is not responsible for providing Location: The Renaissance the Federal Advisory Committee Act access to electrical outlets. Washington, DC, Dupont Circle Hotel, (Pub. L. 92–463, 5 U.S.C., App. 2). 1143 New Hampshire Avenue, NW., ONC welcomes the attendance of the Dated: July 6, 2010. Washington, DC, phone: 202–775–0800. public at its advisory committee Contact Person: Judy Sparrow, Office Judith Sparrow, meetings. Seating is limited at the of the National Coordinator, HHS, 330 C Office of Programs and Coordination, Office location, and ONC will make every Street, SW., Washington, DC 20201, of the National Coordinator for Health effort to accommodate persons with 202–205–4528, fax: 202–690–6079, e- Information Technology. physical disabilities or special needs. If mail: [email protected]. Please call [FR Doc. 2010–16945 Filed 7–19–10; 8:45 am] you require special accommodations the contact person for up-to-date BILLING CODE 4150–45–P due to a disability, please contact Judy information on this meeting. A notice in Sparrow at least seven (7) days in the Federal Register about last minute DEPARTMENT OF HEALTH AND advance of the meeting. modifications that impact a previously HUMAN SERVICES ONC is committed to the orderly announced advisory committee meeting conduct of its advisory committee cannot always be published quickly meetings. Please visit our Web site at Centers for Disease Control and enough to provide timely notice. Prevention http://healthit.hhs.gov for procedures Agenda: The committee will hear on public conduct during advisory reports from its workgroups, including [30-Day–10–0639] committee meetings. the Meaningful Use Workgroup, the Notice of this meeting is given under Certification/Adoption Workgroup, the Agency Forms Undergoing Paperwork the Federal Advisory Committee Act Enrollment Workgroup, and the Privacy Reduction Act Review (Pub. L. 92–463, 5 USC. App. 2). & Security Tiger Team. ONC intends to The Centers for Disease Control and Dated: July 6, 2010. make background material available to Prevention (CDC) publishes a list of Judith Sparrow, the public no later than two (2) business information collection requests under Office of Programs and Coordination, Office days prior to the meeting. If ONC is review by the Office of Management and of the National Coordinator for Health unable to post the background material Budget (OMB) in compliance with the Information Technology. on its Web site prior to the meeting, it Paperwork Reduction Act (44 U.S.C. [FR Doc. 2010–16950 Filed 7–19–10; 8:45 am] will be made publicly available at the Chapter 35). To request a copy of these location of the advisory committee BILLING CODE 4150–45–P requests, call the CDC Reports Clearance meeting, and the background material Officer at (404) 639–5960 or send an will be posed on ONC’s Web site after email to [email protected]. Send written DEPARTMENT OF HEALTH AND the meeting, at http://healthit.hhs.gov. comments to CDC Desk Officer, Office of HUMAN SERVICES Procedure: Interested persons may Management and Budget, Washington, present data, information, or views, DC 20503 or by fax to (202) 395–5806. Office of the National Coordinator for orally or in writing, on issues pending Written comments should be received Health Information Technology; HIT before the committee. Written within 30 days of this notice. Policy Committee Advisory Meeting; submissions may be made to the contact Notice of Meeting person on or before July 16, 2010. Oral Proposed Project comments from the public will be Special Exposure Cohort Petitions, AGENCY: Office of the National scheduled between approximately 3 (OMB Control Number 0920–0639, Coordinator for Health Information p.m. to 4 p.m. Time allotted for each Expiration Date 07/31/2010)— Technology, HHS. presentation is limited to three minutes. Extension—National Institute for ACTION: Notice of meeting. If the number of speakers requesting to Occupational Safety and Health comment is greater than can be (NIOSH), Centers for Disease Control This notice announces a forthcoming reasonably accommodated during the and Prevention (CDC). meeting of a public advisory committee scheduled open public hearing session, of the Office of the National Coordinator ONC will take written comments after Background and Brief Description for Health Information Technology the meeting until close of business. On October 30, 2000, the Energy (ONC). The meeting will be open to the Persons attending ONC’s advisory Employees Occupational Illness public. committee meetings are advised that the Compensation Program Act of 2000 Name of Committee: HIT Policy agency is not responsible for providing (EEOICPA), 42 U.S.C. 7384–7385 [1994, Committee. access to electrical outlets. supp. 2001] was enacted. It established

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a compensation program to provide a Board) in establishing such findings. On petitioner(s), obtain their contact lump sum payment of $150,000 and March 7, 2003, HHS proposed information, and establish that the medical benefits as compensation to procedures for adding such classes to petitioner(s) is qualified and intends to covered employees suffering from the Cohort in a notice of proposed petition HHS; (b) establish an initial designated illnesses incurred as a result rulemaking at 42 CFR Part 83. definition of the class of employees of their exposure to radiation, The HHS procedures authorize a being proposed to be considered for beryllium, or silica while in the variety of individuals and entities to addition to the Cohort; (c) determine performance of duty for the Department submit petitions, as specified under whether there is justification to require of Energy and certain of its vendors, § 83.7. Petitioners are required to HHS to evaluate whether or not to contractors and subcontractors. This provide the information specified in designate the proposed class as an legislation also provided for payment of § 83.9 to qualify their petitions for a addition to the Cohort (such an compensation for certain survivors of complete evaluation by HHS and the evaluation involves potentially these covered employees. There is no Board. HHS has developed two petition extensive data collection, analysis, and change to the information collection. forms to assist the petitioners in related deliberations by NIOSH, the This program has been mandated to be providing this required information Board, and HHS); and, (d) target an in effect until Congress ends the efficiently and completely, and an evaluation by HHS to examine relevant funding. Authorization Form to permit a potential limitations of radiation EEOICPA instructed the President to respondent to authorize another party to monitoring and/or dosimetry-relevant designate one or more Federal Agencies submit a petition on their behalf, as records and to examine the potential for to carry out the compensation program. specified in § 83.7. Petition Form A is a related radiation exposures that might Accordingly, the President issued one-page form to be used by EEOICPA have endangered the health of members Executive Order 13179 (‘‘Providing claimants for whom NIOSH will have of the class. Compensation to America’s Nuclear attempted to conduct dose Finally, under § 83.18, petitioners Weapons Workers’’) on December 7, reconstructions and will have may contest the proposed decision of 2000 (65 FR 77487), assigning primary determined that available information is the Secretary to add or deny adding responsibility for administration of the not sufficient to complete the dose classes of employees to the cohort by compensation program to the reconstruction. The form addresses the submitting evidence that the proposed Department of Labor (DOL). The informational requirements specified decision relies on a record of either executive order directed the Department under § 83.9(a) and (b). Petition Form B, factual or procedural errors in the of Health and Human Services (HHS) to accompanied by separate instructions, is implementation of these procedures. perform several technical and intended for all other petitioners. The NIOSH estimates that the time to policymaking roles in support of the form addresses the informational prepare and submit such a challenge is DOL program. requirements specified under § 83.9(a) 45 minutes. Because of the uniqueness Among other duties, the executive and (c). Forms A and B can be of this submission, NIOSH is not order directed HHS to establish and submitted electronically as well as in providing a form. implement procedures for considering hard copy. Petitioners should be aware petitions by classes of nuclear weapons that HHS is not requiring petitioners to There are no costs to petitioners workers to be added to the ‘‘Special use the forms. Petitioners can choose to unless a petitioner chooses to purchase Exposure Cohort’’ (the ‘‘Cohort’’), various submit petitions as letters or in other the services of a expert in dose groups of workers whose claims for formats, but petitions must meet the reconstruction, an option provided for cancer under EEOICPA can be informational requirements referenced under 42 CFR 83.9(c)(2)(iii). The adjudicated without demonstrating that above. NIOSH expects, however, that all petitioner would assume the financial their cancer was ‘‘at least as likely as petitioners for whom Form A would be burden of purchasing such services at not’’ caused by radiation doses they appropriate will actually use the form, their option. In such cases, HHS incurred in the performance of duty. In since NIOSH will provide it to them estimates a report by such an expert brief, EEOICPA authorizes HHS to upon determining that their dose may cost between $640 and $6,400, designate such classes of employees for reconstruction cannot be completed and depending on the scope of the petition addition to the Cohort when NIOSH encourage them to submit the petition. and access to relevant information. This lacks sufficient information to estimate NIOSH expects the large majority of is based on an estimate of costs of $80 with sufficient accuracy the radiation petitioners for whom Form B would be per hour for contractual services by a doses of the employees, if HHS also appropriate will also use the form, since health physicist, who NIOSH estimates finds that the health of members of the it provides a simple, organized format would be employed within a range of class may have been endangered by the for addressing the informational eight to eighty hours to conduct and radiation dose the class potentially requirements of a petition. prepare a report on the required incurred. HHS must also obtain the NIOSH will use the information assessment. advice of the Advisory Board on obtained through the petition for the The total estimated annual burden Radiation and Worker Health (the following purposes: (a) Identify the hours are 238.

ESTIMATE OF ANNUALIZED BURDEN HOURS

Average bur- No. of re- No. of re- den per re- Form name & number (CFR reference) Respondents spondents sponses per spondent respondent (in hours)

Form A 42 CFR 83.9 ...... Petitioners using Form A ...... 30 1 3/60 Form B 42 CFR 83.9 ...... Petitioners using Form B ...... 40 1 5 42 CFR 83.9 ...... Petitioners not using Form B ...... 5 1 6 42 CFR 83.18 ...... Petitioners Appealing proposed decisions ..... 5 1 45/60

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ESTIMATE OF ANNUALIZED BURDEN HOURS—Continued

Average bur- No. of re- No. of re- den per re- Form name & number (CFR reference) Respondents spondents sponses per spondent respondent (in hours)

Authorization Form 42 CFR 83.7 ...... Person authorizing a party to submit a peti- 20 1 3/60 tion on his/her behalf.

Dated: July 13, 2010. Administration, 1350 Piccard Dr. PI50– Act by adding a new chapter granting Carol Walker, 400B, Rockville, MD 20850, 301–796– FDA important new authority to Acting Reports Clearance Officer, Centers for 3794, regulate the manufacture, marketing, Disease Control and Prevention. [email protected]. and distribution of tobacco products to [FR Doc. 2010–17685 Filed 7–19–10; 8:45 am] SUPPLEMENTARY INFORMATION: Under the protect the public health generally and BILLING CODE 4163–18–P PRA (44 U.S.C. 3501–3520), Federal to reduce tobacco use by minors. agencies must obtain approval from the Section 917 of the Tobacco Control Office of Management and Budget Act requires the Secretary of Health and DEPARTMENT OF HEALTH AND (OMB) for each collection of Human Services (the Secretary) to HUMAN SERVICES information they conduct or sponsor. establish a Tobacco Products Scientific ‘‘Collection of information’’ is defined in Advisory Committee (TPSAC). Section Food and Drug Administration 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) 907(e) of the Tobacco Control Act [Docket No. FDA–2010–N–0367] and includes agency requests or requires the TPSAC to submit a report requirements that members of the public and recommendations to the Secretary Agency Information Collection submit reports, keep records, or provide on the impact of the use of menthol in Activities; Proposed Collection; information to a third party. Section cigarettes on the public health, Comment Request; Information 3506(c)(2)(A) of the PRA (44 U.S.C. including such use among children, Request Regarding Menthol in 3506(c)(2)(A)) requires Federal agencies African-Americans, Hispanics, and Cigarettes to provide a 60-day notice in the other racial and ethnic minorities. To Federal Register concerning each ensure a comprehensive review of this AGENCY: Food and Drug Administration, proposed collection of information, issue, the Center for Tobacco Products HHS. including each proposed extension of an is requesting tobacco industry data and ACTION: Notice. existing collection of information, information to support the work of TPSAC. Under section 907(e) of the SUMMARY: The Food and Drug before submitting the collection to OMB Tobacco Control Act, TPSAC must Administration (FDA) is announcing an for approval. To comply with this submit its report and recommendations opportunity for public comment on the requirement, FDA is publishing notice to the Secretary within 1 year of its proposed collection of certain of the proposed collection of formation, or March 23, 2011. information by the agency. Under the information set forth in this document. In order to provide TPSAC with the Paperwork Reduction Act of 1995 (the With respect to the following information it needs to carry out its PRA), Federal agencies are required to collection of information, FDA invites statutory obligation, FDA is requesting publish notice in the Federal Register comments on these topics: (1) Whether that tobacco companies submit concerning each proposed collection of the proposed collection of information information under section 904(b) of the information, including each proposed is necessary for the proper performance Tobacco Control Act. OMB granted extension of an existing collection of of FDA’s functions, including whether emergency processing and approved the information, and to allow 60 days for the information will have practical information collection on May 12, 2010. public comment in response to the utility; (2) the accuracy of FDA’s In a letter dated May 26, 2010, FDA notice. This notice solicits comments on estimate of the burden of the proposed asked tobacco manufacturers to submit an information request regarding the use collection of information, including the documents containing scientific, of menthol in cigarettes. validity of the methodology and assumptions used; (3) ways to enhance marketing, and health-related DATES: Submit either electronic or the quality, utility, and clarity of the information pertaining to the use of written comments on the collection of information to be collected; and (4) menthol in cigarettes. information by September 20, 2010. ways to minimize the burden of the FDA has requested that tobacco ADDRESSES: Submit electronic collection of information on manufacturers submit all documents comments on the collection of respondents, including through the use and underlying scientific information information to http:// of automated collection techniques, relating to research activities, and www.regulations.gov. Submit written when appropriate, and other forms of research findings, conducted, comments on the collection of information technology. supported, or possessed by the information to the Division of Dockets manufacturer (or agents thereof) on a Management (HFA–305), Food and Drug Information Request Regarding specified set of topics. ‘‘Research Administration, 5630 Fishers Lane, rm. Menthol in Cigarettes—(OMB Control activities’’ may include, but are not 1061, Rockville, MD 20852. All Number 0910–0662)—Extension limited to, focus groups, surveys, comments should be identified with the On June 22, 2009, the President experimental clinical studies, docket number found in brackets in the signed the Family Smoking Prevention toxicological and biochemical assays, heading of this document. and Tobacco Control Act (the Tobacco taste panels, and assessments of the FOR FURTHER INFORMATION CONTACT: Control Act) (Public Law 111–31) into effectiveness of product marketing Jonna Capezzuto, Office of Information law. The Tobacco Control Act amended practices. Scientific and health-related Management, Food and Drug the Federal Food, Drug, and Cosmetic information FDA has requested include

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dose-response relationships for FDA has also requested tobacco marketing strategies for each brand or physiologic effects and chemosensory companies to submit consumer research subbrand of menthol cigarettes, effects of mentholated tobacco smoke. data and marketing information including strategies targeted to FDA also requested information on the pertaining to menthol cigarettes. FDA particular demographic groups, impact of menthol on the neurobiology requested consumer research data strategies aimed at tobacco-naı¨ve of tobacco dependence and information pertaining to use, cessation, and consumers, and strategies aimed at on dose-related interactions between consumer perception of menthol recruitment of former tobacco users. menthol and nicotine, including on the cigarettes. FDA’s request for documents uptake and metabolism of nicotine and and underlying scientific information FDA estimates the burden of this on various consumer perceptions of the related to marketing information collection of information as follows: product. includes data and information on

No. of Annual Frequency Total Annual Hours per Total Capital Activity Respondents per Response Responses Response Total Hours Costs

Submission of Menthol Documents 116 1 116 140 16,240 $1,940

The capital costs associated with this DEPARTMENT OF HEALTH AND FOR FURTHER INFORMATION CONTACT: collection pertain to the postage for HUMAN SERVICES Denver Presley Jr., Office of Information mailing documents in electronic format. Management, Food and Drug Estimating these costs is problematic Food and Drug Administration Administration, 1350 Piccard Dr., PI50– because the costs would vary depending 400B, Rockville, MD 20850, 301–796– on the size of the document production [Docket No. FDA–2010–N–0356] 3793. (e.g. one binder of documents vs. numerous boxes of paper) and the Agency Information Collection SUPPLEMENTARY INFORMATION: Under the media type (e.g., compact disk (CD) or Activities; Proposed Collection; PRA (44 U.S.C. 3501–3520), Federal digital video disk (DVD)) chosen to Comment Request; Designated New agencies must obtain approval from the submit documents. Currently, we Animal Drugs for Minor Use and Minor Office of Management and Budget cannot identify how many documents Species (OMB) for each collection of information they conduct or sponsor. will be submitted per response. AGENCY: Food and Drug Administration, ‘‘ ’’ Some sample postage costs are shown HHS. Collection of information is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) for different types of packages: ACTION: Notice. and includes agency requests or • 10 CDs in a flat envelope weighing SUMMARY: The Food and Drug requirements that members of the public 30 ounces: Approximately $8 using first submit reports, keep records, or provide class business mail, Administration (FDA) is announcing an opportunity for public comment on the information to a third party. Section • Five-pound parcel containing paper proposed collection of certain 3506(c)(2)(A) of the PRA (44 U.S.C. documents: Approximately $12 using information by the agency. Under the 3506(c)(2)(A)) requires Federal agencies business parcel post mail and delivering Paperwork Reduction Act of 1995 (the to provide a 60-day notice in the to the furthest delivery zone, PRA), Federal agencies are required to Federal Register concerning each • Ten-pound parcel containing paper publish notice in the Federal Register proposed collection of information, documents: Approximately $17 using concerning each proposed collection of including each proposed extension of an business parcel mail and delivering to information, including each proposed existing collection of information, the furthest delivery zone, and extension of an existing collection of before submitting the collection to OMB • Fifty-pound parcel containing paper information, and to allow 60 days for for approval. To comply with this documents: Approximately $52 using public comment in response to the requirement, FDA is publishing notice business parcel post mail and delivering notice. This notice solicits comments on of the proposed collection of to the furthest delivery zone. the paperwork associated with information set forth in this document. designation under the Minor Use and This estimate is based upon: (1) With respect to the following Minor Species (MUMS) Animal Health collection of information, FDA invites Ninety three submissions (80% of 116 Act of 2004. submissions) being submitted by comments on these topics: (1) Whether DATES: mailing an average of 10 CDs per Submit either electronic or the proposed collection of information envelope (93 x $8 = $744) and (2) written comments on the collection of is necessary for the proper performance Twenty three submissions (20% of the information by September 20, 2010. of FDA’s functions, including whether 116 submissions) being submitted by ADDRESSES: Submit electronic the information will have practical mailing a package of paper documents comments on the collection of utility; (2) the accuracy of FDA’s weighing an average of 50 pounds (23 x information to http:// estimate of the burden of the proposed $52 = $1,196.) Therefore, we estimate www.regulations.gov. Submit written collection of information, including the the total capital costs associated with comments on the collection of validity of the methodology and this document submission to be $1,940. information to the Division of Dockets assumptions used; (3) ways to enhance Management (HFA–305), Food and Drug the quality, utility, and clarity of the Dated: July 13, 2010. Administration, 5630 Fishers Lane, rm. information to be collected; and (4) Leslie Kux, 1061, Rockville, MD 20852. All ways to minimize the burden of the Acting Assistant Commissioner for Policy. comments should be identified with the collection of information on [FR Doc. 2010–17607 Filed 7–19–10; 8:45 am] docket number found in brackets in the respondents, including through the use BILLING CODE 4160–01–S heading of this document. of automated collection techniques,

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when appropriate, and other forms of available to sponsors whose drugs are MUMS designation as well as the information technology. ‘‘MUMS-designated’’ by FDA. Minor use annual reporting requirements for drugs are drugs for use in major species MUMS designees. Designated New Animal Drugs for (cattle, horses, swine, chickens, turkeys, Under part 516 (21 CFR part 516), Minor Use and Minor Species—21 CFR dogs, and cats) that are needed for § 516.20 provides requirements on the Part 516 (OMB Control No. 0910– diseases that occur in only a small content and format of a request for 0605)—Extension number of animals either because they MUMS-drug designation, § 516.26 The Minor Use and Minor Species occur infrequently or in limited provides requirements for amending (MUMS) Animal Health Act of 2004 geographic areas. Minor species are all MUMS-drug designation, § 516.27 amended the Federal Food, Drug, and animals other than the major species, for provides provisions for change in Cosmetic Act (the act) to authorize FDA example, zoo animals, ornamental fish, sponsorship of MUMS-drug designation, to establish new regulatory procedures parrots, ferrets, and guinea pigs. Some § 516.29 provides provisions for intended to make more medications animals of agricultural importance are termination of MUMS-drug designation, legally available to veterinarians and also minor species. These include § 516.30 provides requirements for animal owners for the treatment of animals such as sheep, goats, catfish, annual reports from sponsor(s) of minor animal species as well as and honeybees. Participation in the MUMS-designated drugs, and § 516.36 uncommon diseases in major animal MUMS program is completely optional provides provisions for insufficient species. This legislation provides for drug sponsors so the associated quantities of MUMS-designated drugs. incentives designed to help paperwork only applies to those Respondents are pharmaceutical pharmaceutical companies overcome sponsors who request and are companies that sponsor new animal the financial burdens they face in subsequently granted ‘‘MUMS drugs. providing limited-demand animal designation.’’ The rule specifies the FDA estimates the burden of this drugs. These incentives are only criteria and procedures for requesting collection of information as follows:

TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1

Annual Frequency 21 CFR Section No. of per Total Annual Hours per Total Hours Respondents Response Responses Response

516.20 15 5 75 16 1,200

516.26 3 1 3 2 6

516.27 1 1 1 1 1

516.29 2 1 2 1 2

516.30 15 5 75 2 150

516.36 1 1 1 3 3

Total 1,362 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

The burden estimate for this reporting DEPARTMENT OF HEALTH AND Paperwork Reduction Act of 1995 (the requirement was derived in FDA’s HUMAN SERVICES PRA), Federal agencies are required to Office of Minor Use and Minor Species publish notice in the Federal Register Animal Drug Development by Food and Drug Administration concerning each proposed collection of extrapolating the current investigational [Docket No. FDA–2010–N–0374] information, including each proposed new animal drug (INAD) and new extension of an existing collection of animal drug (NAD) reporting Agency Information Collection information, and to allow 60 days for requirements for similar actions by this Activities; Proposed Collection; public comment in response to the same segment of the regulated industry Comment Request; Petition to Request notice. This notice solicits comments on and from previous interactions with the an Exemption From 100 Percent reporting requirements contained in minor use/minor species community. Identity Testing of Dietary Ingredients: existing FDA regulations governing Current Good Manufacturing Practice petitions to request an exemption from Dated: July 13, 2010. in Manufacturing, Packaging, Labeling, 100 percent identity testing of dietary Leslie Kux, or Holding Operations for Dietary ingredients. Acting Assistant Commissioner for Policy. Supplements DATES: Submit either electronic or [FR Doc. 2010–17609 Filed 7–19–10; 8:45 am] AGENCY: Food and Drug Administration, written comments on the collection of BILLING CODE 4160–01–S HHS. information by September 20, 2010. ACTION: Notice. ADDRESSES: Submit electronic comments on the collection of SUMMARY: The Food and Drug information to http:// Administration (FDA) is announcing an www.regulations.gov. Submit written opportunity for public comment on the comments on the collection of proposed collection of certain information to the Division of Dockets information by the agency. Under the Management (HFA–305), Food and Drug

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Administration, 5630 Fishers Lane, rm. Petition to Request an Exemption From means of establishing, with no material 1061, Rockville, MD 20852. All 100 Percent Identity Testing of Dietary diminution of assurance compared to comments should be identified with the Ingredients: Current Good the assurance provided by 100 percent docket number found in brackets in the Manufacturing Practice in identity testing, the identity of the heading of this document. Manufacturing, Packaging, Labeling, or dietary ingredient before use. Holding Operations for Dietary Section 111.75(a)(1) of the CGMP final FOR FURTHER INFORMATION CONTACT: Supplements—21 CFR 111.75(a)(1)(ii) rule reflects FDA’s determination that Denver Presley, Jr., Office of Information (OMB Control Number 0910–0608)— manufacturers that test or examine 100 Management, Food and Drug Extension percent of the incoming dietary Administration, 1350 Piccard Dr., PI50– On October 25, 1994, the Dietary ingredients for identity can be assured 400B, Rockville, MD 20850, 301–796– Supplement Health and Education Act of the identity of the ingredient. 3793. (DSHEA) (Public Law 103–417) was However, FDA recognizes that it may be SUPPLEMENTARY INFORMATION: Under the signed into law. DSHEA, among other possible for a manufacturer to PRA (44 U.S.C. 3501–3520), Federal things, amended the Federal Food, demonstrate, through various methods Drug, and Cosmetic Act (the act) by and processes in use over time for its agencies must obtain approval from the adding section 402(g) of the act (21 particular operation, that a system of Office of Management and Budget U.S.C. 342(g)). Section 402(g)(2) of the less than 100 percent identity testing (OMB) for each collection of act provides, in part, that the Secretary would result in no material diminution information they conduct or sponsor. of Health and Human Services (the of assurance of the identity of the ‘‘Collection of information’’ is defined in Secretary) may, by regulation, prescribe dietary ingredient as compared to the 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) good manufacturing practices for dietary assurance provided by 100 percent and includes agency requests or supplements. Section 402(g)(1) of the identity testing. To provide an requirements that members of the public act states that a dietary supplement is opportunity for a manufacturer to make submit reports, keep records, or provide adulterated if ‘‘it has been prepared, such a showing and reduce the information to a third party. Section packed, or held under conditions that frequency of identity testing of 3506(c)(2)(A) of the PRA (44 U.S.C. do not meet current good manufacturing components that are dietary ingredients 3506(c)(2)(A)) requires Federal agencies practice regulations.’’ Under section from 100 percent to some lower to provide a 60-day notice in the 701(a) of the act (21 U.S.C. 371(a)), FDA frequency, FDA added to § 111.75(a)(1), Federal Register concerning each may issue regulations necessary for the an exemption from the requirement of proposed collection of information, efficient enforcement of the act. 100 percent identity testing when a including each proposed extension of an FDA published a final rule on June manufacturer petitions the agency for existing collection of information, 25, 2007 (72 FR 34752) (the final rule), such an exemption to 100 percent before submitting the collection to OMB that established, in part 111 (21 CFR identity testing under § 10.30 and the part 111), the minimum Current Good for approval. To comply with this agency grants such exemption. Such a Manufacturing Practice (CGMP) requirement, FDA is publishing notice procedure would be consistent with necessary for activities related to FDA’s stated goal, as described in the of the proposed collection of manufacturing, packaging, labeling, or information set forth in this document. CGMP final rule, of providing flexibility holding dietary supplements to ensure in the CGMP requirements. Section With respect to the following the quality of the dietary supplement. 111.75(a)(1)(ii) sets forth the collection of information, FDA invites On June 25, 2007 (72 FR 34959), FDA information a manufacturer is required comments on these topics: (1) Whether also published an Interim Final Rule to submit in such a petition. The the proposed collection of information (the IFR) establishing a procedure for a regulation also contains a requirement is necessary for the proper performance petition to request an exemption from to ensure that the manufacturer keeps of FDA’s functions, including whether 100 percent identity testing of dietary FDA’s response to a petition submitted the information will have practical ingredients. The IFR redesignated under § 111.75(a)(1)(ii) as a record utility; (2) the accuracy of FDA’s § 111.75(a)(1) of the CGMP final rule as under § 111.95. The collection of estimate of the burden of the proposed § 111.75(a)(1)(i) and set forth a information in § 111.95 has been collection of information, including the procedure for submission of a petition approved under OMB control number to FDA in a new § 111.75(a)(1)(ii), under validity of the methodology and 0910–0606. which manufacturers may request an assumptions used; (3) ways to enhance exemption from the requirements set Description of Respondents: The the quality, utility, and clarity of the forth in § 111.75(a)(1)(i) when the respondents to this collection of information to be collected; and (4) dietary ingredient is obtained from one information are firms in the dietary ways to minimize the burden of the or more suppliers identified in the supplement industry, including dietary collection of information on petition. The regulation clarifies that supplement manufacturers, packagers respondents, including through the use FDA is willing to consider, on a case-by- and re-packagers, holders, labelers and of automated collection techniques, case basis, a manufacturer’s conclusion, re-labelers, distributors, warehouses, when appropriate, and other forms of supported by appropriate data and exporters, importers, large businesses, information technology. information in the petition submission, and small businesses. that it has developed a system that it FDA estimates the burden of this would implement as a sound, consistent collection of information as follows:

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TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1

Number of Annual Frequency Total Annual Hours per 21 CFR Section Respondents per Response Responses Response Total Hours

111.75(a)(1)(ii) 1 1 1 8 8 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

In the last 3 years, FDA has not opportunity for public comment on sensitive data, future networking received any new petitions to request an proposed data collection projects, the contact, travel information, as well as exemption from 100 percent identity Office of Intramural Training & feedback questions about interviews and testing of dietary ingredients; therefore, Education/OIR/OD, the National application submission experiences. the agency estimates that one or fewer Institutes of Health (NIH) will publish Sensitive data collected on the petitions will be submitted annually. periodic summaries of proposed applicants, race, gender, ethnicity and Although FDA has not received any new projects to be submitted to the Office of recruitment method, are made available petitions to request an exemption from Management and Budget (OMB) for only to OITE staff members or in 100 percent identity testing of dietary review and approval. aggregate form to select NIH offices and ingredients in the last 3 years, it Proposed Collection are not used by the admission believes that these information committee for admission consideration; collection provisions should be Title: NIH Office of Intramural optional to submit. extended to provide for the potential Training & Education Application. Type Over the last several years the OITE future need of a firm in the dietary of Information Collection Request: has used three OMB Clearance Numbers supplement industry to petition for an Revision. Form Number: 0925–0299. for the collection of applications for the exemption from 100 percent identity Expiration Date: September 30, 2012. training programs. To improve testing of dietary ingredients. Based on Need and Use of Information Collection: announcement of all training programs our experience with petition processes, The Office of Intramural Training & and lessen the burden of applicants, the we estimate that the assembly of Education (OITE) administers a variety OITE proposes to merge the following: of programs and initiatives to recruit information in support of the petition • 0925–0299—NIH Intramural pre-college through post-doctoral required by § 111.75(a)(1)(ii) will take 8 Research Training Award, Program educational level individuals into the hours. Application. Dated: July 13, 2010. National Institutes of Health Intramural • Research Program (NIH–IRP) to facilitate 0925–0438—Undergraduate Leslie Kux, develop into future biomedical Scholarship Program (UGSP). • Acting Assistant Commissioner for Policy. scientists. The proposed information 0925–0501—Graduate Student [FR Doc. 2010–17608 Filed 7–19–10; 8:45 am] collection is necessary in order to Training Program Application. BILLING CODE 4160–01–S determine the eligibility and quality of Renewing 0925–0299 OMB Clearance potential awardees for traineeships in Number with the new name ‘‘Office of these programs. The applications for Intramural Training & Education DEPARTMENT OF HEALTH AND admission consideration include key Application’’. HUMAN SERVICES areas such as: Personal information, Frequency of Response: On occasion. National Institutes of Health eligibility criteria, contact information, Affected Public: Individuals seeking student identification number, training intramural training opportunities and Proposed Collection; Comment program selection, scientific discipline references for these individuals. Type of Request; NIH Office of Intramural interests, educational history, Respondents: students, post- Training and Education Application standardized examination scores, baccalaureates, technicians, graduate reference information, resume students, and post-doctorates. There are Summary components, employment history, no capital costs, operating costs, and/or In compliance with the requirement employment interests, dissertation maintenance costs to report. of section 3506(c)(2)(A) of the research details, letters of The annual reporting burden is Paperwork Reduction Act of 1995, for recommendation, financial aid history, displayed in the following table:

ESTIMATES OF HOUR BURDEN

Estimated Estimated number of re- Average bur- Estimated total Program number of re- sponses annu- den hours per annual burden spondents ally per re- response hours spondent

Summer Internship Program in Biomedical Research (SIP) ...... 8,500 1 0.75 6,375.0 Biomedical Engineering Summer Internship Program (BESIP) ...... 100 1 0.75 75.0 Post-baccalaureate Intramural Research Training Award ...... 2,300 1 0.75 1,725.0 NIH Academy ...... 550 1 0.75 412.5 Community College Summer Enrichment Program (CCSEP) ...... 125 1 0.75 93.8 Technical Intramural Research Training Award ...... 140 1 0.75 105.0 Graduate Partnerships Program (GPP) ...... 600 1 0.75 450.0 Post-Doctorate Fellowship Program ...... 2,050 1 0.75 1,537.5 National Graduate Student Research Festival (NGSRF) ...... 825 1 0.75 618.8 Undergraduate Scholarship Program (UGSP) ...... 300 1 0.75 225.0 Alumni Database ...... 1,900 1 0.75 1,425.0

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ESTIMATES OF HOUR BURDEN—Continued

Estimated Estimated number of re- Average bur- Estimated total Program number of re- sponses annu- den hours per annual burden spondents ally per re- response hours spondent

Recommendations for All Programs ...... 35,705 1 0.25 8,926.3 Supplemental Documents for Application ...... 14,540 1 0.75 10,905.0 Feedback Questions ...... 53,095 1 0.25 13,273.8

Totals ...... 120,730 46,147.5

Request for Comments DEPARTMENT OF HEALTH AND Rockville, MD 20852–1448. Send one HUMAN SERVICES self-addressed adhesive label to assist Written comments and/or suggestions the office in processing your requests. from the public and affected agencies Food and Drug Administration The draft recommendation may also be should address one or more of the [Docket No. FDA–2010–N–0327] obtained by mail by calling CBER at 1– following points: (1) Evaluate whether 800–835–4709 or 301–827–1800. See the proposed collection of information International Conference on the SUPPLEMENTARY INFORMATION section is necessary for the proper performance Harmonisation; Draft Recommendation for electronic access to the draft of the function of the agency, including for the Revision of the Permitted Daily recommendation. whether the information will have Exposure for the Solvent Cumene Submit electronic comments on the practical utility; (2) Evaluate the According to the Maintenance draft recommendation to http:// accuracy of the agency’s estimate of the Procedures for the Guidance Q3C www.regulations.gov. Submit written burden of the proposed collection of Impurities: Residual Solvents; comments to the Division of Dockets information, including the validity of Availability Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, rm. the methodology and assumptions used; AGENCY: Food and Drug Administration, 1061, Rockville, MD 20852. (3) Enhance the quality, utility, and HHS. FOR FURTHER INFORMATION CONTACT: clarity of the information to be ACTION: Notice. collected; and (4) Minimize the burden Regarding the guidance: David of the collection of information on those SUMMARY: The Food and Drug Jacobson-Kram, Center for Drug who are to respond, including the use Administration (FDA) is announcing the Evaluation and Research, Food and of appropriate automated, electronic, availability of a draft recommendation Drug Administration, 10903 New mechanical, or other technological for the revision of the permitted daily Hampshire Ave., Silver Spring, MD collection techniques or other forms of exposure (PDE) for the solvent cumene 20993, 301–796–0175. information technology. according to the maintenance Regarding the ICH: Michelle Limoli, procedures for the guidance for industry Office of International Programs FOR FURTHER INFORMATION CONTACT: To entitled ‘‘Q3C: Impurities: Residual (HFG–1), Food and Drug request more information on the Solvents.’’ The draft recommendation Administration, 5600 Fishers Lane, proposed project or to obtain a copy of was prepared under the auspices of the Rockville, MD 20857, 301–827– the data collection plans and International Conference on 4480. instruments, contact: Dr. Patricia Harmonisation of Technical SUPPLEMENTARY INFORMATION: Wagner, Director of Admissions & Requirements for Registration of Registrar, Office of Intramural Training Pharmaceuticals for Human Use (ICH). I. Background & Education, National Institutes of DATES: Although you can comment on In recent years, many important Health, 2 Center Drive, Building 2/Room any guidance at any time (see 21 CFR initiatives have been undertaken by 2E06, Bethesda, Maryland 20892–0234, 10.115(g)(5)), to ensure that the agency regulatory authorities and industry or call 240–476–3619 or e-mail your considers your comment on this draft associations to promote international request, including your address to: recommendation before it begins work harmonization of regulatory [email protected]. on the final recommendation, submit requirements. FDA has participated in either electronic or written comments many meetings designed to enhance DATES: Comments Due Date: Comments on the document by September 20, harmonization and is committed to regarding this information collection are 2010. seeking scientifically based harmonized best assured of having their full effect if ADDRESSES: Submit written requests for technical procedures for pharmaceutical received within 60 days of the date of single copies of the draft development. One of the goals of this publication. recommendation to the Division of Drug harmonization is to identify and then Date: July 15, 2010. Information (HFD–240), Center for Drug reduce differences in technical Evaluation and Research, Food and requirements for drug development Michael M. Gottesman, Drug Administration, 10903 New among regulatory agencies. Deputy Director for Intramural Research, Hampshire Ave., Bldg. 51, rm. 2201, ICH was organized to provide an National Institutes of Health. Silver Spring, MD 20993–0002, or the opportunity for tripartite harmonization [FR Doc. 2010–17669 Filed 7–19–10; 8:45 am] Office of Communication, Outreach and initiatives to be developed with input BILLING CODE 4140–01–P Development (HFM–40), Center for from both regulatory and industry Biologics Evaluation and Research representatives. FDA also seeks input (CBER), Food and Drug Administration, from consumer representatives and 1401 Rockville Pike, suite 200N, others. ICH is concerned with

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harmonization of technical facilitate making changes recommended www.regulations.gov, http:// requirements for the registration of by ICH. www.fda.gov/Drugs/Guidance pharmaceutical products among three ComplianceRegulatoryInformation/ II. Draft Recommendation to Revise the regions: The European Union, Japan, Guidances/default.htm, or http:// PDE for Cumene and the United States. The six ICH www.fda.gov/BiologicsBloodVaccines/ sponsors are the European Commission; In March 2010, the ICH Steering GuidanceComplianceRegulatory the European Federation of Committee agreed that a draft Information/Guidances/default.htm. Pharmaceutical Industries Associations; recommendation to revise the PDE for Information on the Q3C maintenance the Japanese Ministry of Health, Labour, the solvent cumene should be made process as well as proposals, data and Welfare; the Japanese available for public comment. The draft analysis, and draft and final Pharmaceutical Manufacturers recommendation is the product of the recommendations for revisions to the Association; the Centers for Drug Q3C EWG of the ICH. Comments about tables and list are available at http:// Evaluation and Research and Biologics this draft will be considered by FDA www.fda.gov/Drugs/Guidance Evaluation and Research, FDA; and the and the Q3C EWG. ComplianceRegulatoryInformation/ Pharmaceutical Research and The draft recommendation addresses Guidances/ucm125820.htm. the safety classification of cumene. Manufacturers of America. The ICH Dated: July 9, 2010. When the Q3C guidance was published Secretariat, which coordinates the Leslie Kux, preparation of documentation, is in 1997, cumene was listed as a class 3 Acting Assistant Commissioner for Policy. provided by the International solvent (i.e., a solvent with low Federation of Pharmaceutical toxicity). The Q3C EWG has reviewed [FR Doc. 2010–17618 Filed 7–19–10; 8:45 am] Manufacturers Associations (IFPMA). new toxicity data derived from a BILLING CODE 4160–01–S The ICH Steering Committee includes carcinogenicity study performed by the representatives from each of the ICH National Toxicology Program. The new DEPARTMENT OF HEALTH AND sponsors and the IFPMA, as well as data suggest a positive systemic HUMAN SERVICES observers from the World Health carcinogenic effect, and this observation Organization, Health Canada, and the raises the toxicity associated with this National Institutes of Health European Free Trade Area. solvent. In March 2010, the ICH Steering In the Federal Register of December Committee was briefed on the results of Eunice Kennedy Shriver National 24, 1997 (62 FR 67377), FDA published the Q3C EWG’s analysis. The Institute of Child Health and Human the ICH guidance for industry entitled recommendation was to move cumene Development; Notice of Closed ‘‘Q3C Impurities: Residual Solvents.’’ from class 3 into class 2. The analysis Meeting The guidance makes recommendations and draft recommendation are available as to what amounts of residual solvents for review on the Internet (see section IV Pursuant to section 10(d) of the are considered safe in pharmaceuticals. of this document). Federal Advisory Committee Act, as The guidance recommends use of less This draft recommendation is being amended (5 U.S.C. App.), notice is toxic solvents and describes levels issued consistent with FDA’s good hereby given of the following meeting. considered to be toxicologically guidance practices regulation (21 CFR The meeting will be closed to the acceptable for some residual solvents. 10.115). The draft recommendation for public in accordance with the Upon issuance in 1997, the text and the solvent cumene, when finalized, provisions set forth in sections appendix 1 of the guidance contained will represent the agency’s current 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., several tables and a list of solvents thinking on this topic. It does not create as amended. The contract proposals and categorizing residual solvents by or confer any rights for or on any person the discussions could disclose toxicity, classes 1 through 3, with class and does not operate to bind FDA or the confidential trade secrets or commercial 1 being the most toxic. The ICH Quality public. An alternative approach may be property such as patentable material, Expert Working Group (EWG) agreed used if such approach satisfies the and personal information concerning that the PDE could be modified if requirements of the applicable statutes individuals associated with the contract reliable and more relevant toxicity data and regulations. proposals, the disclosure of which were brought to the attention of the would constitute a clearly unwarranted group and the modified PDE could III. Comments invasion of personal privacy. result in a revision of the tables and list. Interested persons may submit to the Name of Committee: National Institute of In 1999, ICH instituted a Q3C Division of Dockets Management (see Child Health and Human Development maintenance agreement and formed a ADDRESSES) either electronic or written Special Emphasis Panel Assays of Biological maintenance EWG (Q3C EWG). The comments regarding this document. It is Specimens for Division of Epidemiology, agreement provided for the revisitation only necessary to send one set of Statistical and Prevention Research. Date: August 10, 2010. of solvent PDEs and allowed for minor comments. It is no longer necessary to changes to the tables and list that Time: 2 p.m. to 4 p.m. send two copies of mailed comments. Agenda: To review and evaluate contract include the existing PDEs. The Identify comments with the docket proposals. agreement also provided that new number found in brackets in the Place: National Institutes of Health, 6100 solvents and PDEs could be added to the heading of this document. The draft Executive Boulevard, Rockville, MD 20852. tables and list based on adequate recommendation and received (Telephone Conference Call) toxicity data. In the Federal Register of comments may be seen in the Division Contact Person: Sathasiva B. Kandasamy, February 12, 2002 (67 FR 6542), FDA of Dockets Management between 9 a.m. PhD, Scientific Review Officer, Division of briefly described the process for Scientific Review, Eunice Kennedy Shriver and 4 p.m., Monday through Friday. National Institute of Child Health and proposing future revisions to the PDE. Human Development, NIH, 6100 Executive In the same notice, the agency IV. Electronic Access to Documents and the Maintenance Procedures Blvd., Room 5B01, Bethesda, MD 20892– announced its decision to delink the 9304. 301–435–6680. tables and list from the Q3C guidance Persons with access to the Internet [email protected]. and create a stand alone document may obtain the Q3C guidance (Catalogue of Federal Domestic Assistance entitled ‘‘Q3C: Tables and List’’ to documents at http:// Program Nos. 93.864, Population Research;

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93.865, Research for Mothers and Children; Contact Person: Teresa Levitin, PhD, Name of Committee: National Heart, Lung, 93.929, Center for Medical Rehabilitation Director, Office of Extramural Affairs, and Blood Advisory Council. Research; 93.209, Contraception and National Institute on Drug Abuse, NIH, Date: September 1, 2010. Infertility Loan Repayment Program, National DHHS, Room 220, MSC 8401, 6101 Executive Time: 1 p.m. to 4 p.m. Institutes of Health, HHS) Boulevard, Bethesda, MD 20892–8401, (301) Agenda: To review and evaluate grant 443–2755. applications. Dated: July 14, 2010. Any member of the public interested in Place: National Institutes of Health, Jennifer Spaeth, presenting oral comments to the committee Building 31, 31 Center Drive, C-Wing, Room Director, Office of Federal Advisory may notify the Contact Person listed on this 10, Bethesda, MD 20892. (Telephone Committee Policy. notice at least 10 days in advance of the Conference Call) [FR Doc. 2010–17703 Filed 7–19–10; 8:45 am] meeting. Interested individuals and Contact Person: Stephen C. Mockrin, PhD, representatives of organizations may submit Director, Division of Extramural Research BILLING CODE 4140–01–P a letter of intent, a brief description of the Activities, National Heart, Lung, and Blood organization represented, and a short Institute, National Institutes of Health, 6701 description of the oral presentation. Only one Rockledge Drive, Room 7100, Bethesda, MD DEPARTMENT OF HEALTH AND representative of an organization may be 20892, (301) 435–0260, HUMAN SERVICES allowed to present oral comments and if [email protected]. accepted by the committee, presentations Information is also available on the National Institutes of Health may be limited to five minutes. Both printed Institute’s/Center’s home page: http:// and electronic copies are requested for the www.nhlbi.nih.gov/meetings/index.htm, National Institute on Drug Abuse; record. In addition, any interested person where an agenda and any additional Notice of Meeting may file written comments with the information for the meeting will be posted committee by forwarding their statement to when available. Pursuant to section 10(d) of the the Contact Person listed on this notice. The (Catalogue of Federal Domestic Assistance Federal Advisory Committee Act, as statement should include the name, address, Program Nos. 93.233, National Center for amended (5 U.S.C. App.), notice is telephone number and when applicable, the Sleep Disorders Research; 93.837, Heart and hereby given of a meeting of the business or professional affiliation of the Vascular Diseases Research; 93.838, Lung National Advisory Council on Drug interested person. Diseases Research; 93.839, Blood Diseases Information is also available on the Abuse. and Resources Research, National Institutes Institute’s/Center’s home page: http:// of Health, HHS) The meeting will be open to the www.drugabuse.gov/NACDA/ public as indicated below, with NACDAHome.html, where an agenda and Dated: July 14, 2010. attendance limited to space available. any additional information for the meeting Jennifer Spaeth, Individuals who plan to attend and will be posted when available. Director, Office of Federal Advisory need special assistance, such as sign (Catalogue of Federal Domestic Assistance Committee Policy. language interpretation or other Program Nos.: 93.279, Drug Abuse and [FR Doc. 2010–17681 Filed 7–19–10; 8:45 am] reasonable accommodations, should Addiction Research Programs, National BILLING CODE 4140–01–P notify the Contact Person listed below Institutes of Health, HHS) in advance of the meeting. Dated: July 14, 2010. The meeting will be closed to the Jennifer Spaeth, DEPARTMENT OF HEALTH AND public in accordance with the Director, Office of Federal Advisory HUMAN SERVICES provisions set forth in sections Committee Policy. National Institutes of Health 552b(c)(4) and 552b(c)(6), title 5 U.S.C., [FR Doc. 2010–17683 Filed 7–19–10; 8:45 am] as amended. The grant applications and BILLING CODE 4140–01–P National Center on Minority and Health the discussions could disclose Disparities; Notice of Closed Meeting confidential trade secrets or commercial property such as patentable material, DEPARTMENT OF HEALTH AND Pursuant to section 10(d) of the and personal information concerning HUMAN SERVICES Federal Advisory Committee Act, as individuals associated with the grant amended (5 U.S.C. App), notice is applications, the disclosure of which National Institutes of Health hereby given of the following meeting. would constitute a clearly unwarranted The meeting will be closed to the invasion of personal privacy. National Heart, Lung, and Blood public in accordance with the Institute; Notice of Closed Meeting Name of Committee: National Advisory provisions set forth in sections Council on Drug Abuse. Pursuant to section 10(d) of the 552b(c)(4) and 552b(c)(6), title 5 U.S.C., Date: September 14–15, 2010. Federal Advisory Committee Act, as as amended. The grant applications and Closed: September 14, 2010, 2 p.m. to 5 amended (5 U.S.C. App.), notice is the discussions could disclose p.m. hereby given of a meeting of the confidential trade secrets or commercial Agenda: To review and evaluate grant National Heart, Lung, and Blood property such as patentable materials, applications. and personal information concerning Place: National Institutes of Health, Advisory Council. The meeting will be closed to the individuals associated with the grant Neuroscience Center, 6001 Executive applications, the disclosure of which Boulevard, Conference Rooms C & D, public in accordance with the Rockville, MD 20852. provisions set forth in sections would constitute a clearly unwarranted Open: September 15, 2010, 8:30 a.m. to 1 552b(c)(4) and 552b(c)(6), title 5 U.S.C., invasion of personal privacy. p.m. as amended. The grant applications and Name of Committee: National Center on Agenda: This portion of the meeting will the discussions could disclose Minority Health and Health Disparities be open to the public for announcements and confidential trade secrets or commercial Special Emphasis Panel, NCMHD Social reports of administrative, legislative and property such as patentable material, Determinants of Health (R01) Panel. program developments in the drug abuse and personal information concerning Date: July 26–28, 2010. field. Time: 5 p.m. to 5 p.m. Place: National Institutes of Health, individuals associated with the grant Agenda: To review and evaluate grant Neuroscience Center, 6001 Executive applications, the disclosure of which applications. Boulevard, Conference Rooms C & D, would constitute a clearly unwarranted Place: Bethesda Marriott, 5151 Pooks Hill Rockville, MD 20852. invasion of personal privacy: Road, Bethesda, MD 20814.

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Contact Person: Prabha L. Atreya, PhD, Open: September 14, 2010, 9 a.m. to 4:30 Individuals who plan to attend and Chief, Office of Scientific Review, National p.m. need special assistance, such as sign Center on Minority Health and Health Agenda: Program Discussion. language interpretation or other Disparities, 6707 Democracy Boulevard, Place: National Library of Medicine, reasonable accommodations, should Suite 800, Bethesda, MD 20892, (301) 594– Building 38, 2nd Floor, Board Room, 8600 8696, [email protected]. Rockville Pike, Bethesda, MD 20892. notify the Contact Person listed below in advance of the meeting. This notice is being published less than 15 Closed: September 14, 2010, 4:30 p.m. to days prior to the meeting due to the timing 5 p.m. The meeting will be closed to the limitations imposed by the review and Agenda: To review and evaluate grant public as indicated below in accordance funding cycle. applications. with the provisions set forth in section Place: National Library of Medicine, 552b(c)(6), title 5 U.S.C., as amended for Dated: July 13, 2010. Building 38, 2nd Floor, Board Room, 8600 review, discussion, and evaluation of Jennifer Spaeth, Rockville Pike, Bethesda, MD 20892. individual intramural programs and Director, Office of Federal Advisory Open: September 15, 2010, 9 a.m. to 12 p.m. projects conducted by the National Committee Policy. Library of Medicine, including [FR Doc. 2010–17679 Filed 7–19–10; 8:45 am] Agenda: Program Discussion. Place: National Library of Medicine, consideration of personnel BILLING CODE 4140–01–P Building 38, 2nd Floor, Board Room, 8600 qualifications and performance, and the Rockville Pike, Bethesda, MD 20892. competence of individual investigators, Contact Person: Donald A.B. Lindberg, MD, the disclosure of which would DEPARTMENT OF HEALTH AND Director, National Library of Medicine, 8600 constitute a clearly unwarranted HUMAN SERVICES Rockville Pike, Bethesda, MD 20892, 301– invasion of personal privacy. 496–6221, [email protected]. National Institutes of Health Any interested person may file written Name of Committee: Board of Scientific comments with the committee by forwarding Counselors, Lister Hill Center for Biomedical National Library of Medicine; Notice of the statement to the Contact Person listed on Communications. Meeting this notice. The statement should include the Date: September 2–3, 2010. name, address, telephone number and when Open: September 2, 2010, 9 a.m. to 12 p.m. Pursuant to section 10(d) of the applicable, the business or professional Agenda: Review of research and Federal Advisory Committee Act, as affiliation of the interested person. development programs and preparation of amended (5 U.S.C. App), notice is In the interest of security, NIH has reports of the Lister Hill Center for hereby given of meetings of the Board of instituted stringent procedures for entrance Biomedical Communications. Regents of the National Library of onto the NIH campus. All visitor vehicles, Place: National Library of Medicine, including taxicabs, hotel, and airport shuttles Building 38, 2nd Floor, Board Room, 8600 Medicine. Rockville Pike, Bethesda, MD 20892. The meeting will be open to the will be inspected before being allowed on campus. Visitors will be asked to show one Closed: September 2, 2010, 12 p.m. to 4:30 public as indicated below, with form of identification (for example, a p.m. attendance limited to space available. government-issued photo ID, driver’s license, Agenda: To review and evaluate personal Individuals who plan to attend and or passport) and to state the purpose of their qualifications and performance, and need special assistance, such as sign visit. competence of individual investigators. language interpretation or other Information is also available on the Place: National Library of Medicine, reasonable accommodations, should Institute’s/Center’s home page: http:// Building 38, 2nd Floor, Board Room, 8600 www.nlm.nih.gov/od/bor/bor.html, where an Rockville Pike, Bethesda, MD 20892. notify the Contact Person listed below Open: September 3, 2010, 10 a.m. to 11:30 in advance of the meeting. agenda and any additional information for the meeting will be posted when available. a.m. The meeting will be closed to the Agenda: Review of research and public in accordance with the (Catalogue of Federal Domestic Assistance development programs and preparation of provisions set forth in sections Program No. 93.879, Medical Library reports of the Lister Hill Center for Assistance, National Institutes of Health, Biomedical Communications. 552b(c)(4) and 552b(c)(6), title 5 U.S.C., HHS) as amended. The grant applications and Place: National Library of Medicine, the discussions could disclose Dated: July 13, 2010. Building 38, 2nd Floor, Board Room, 8600 Jennifer Spaeth, Rockville Pike, Bethesda, MD 20892. confidential trade secrets or commercial Contact Person: Karen Steely, Program property such as patentable materials, Director, Office of Federal Advisory Assistant, Lister Hill Center for Biomedical and personal information concerning Committee Policy. Communications, National Library of individuals associated with the grant [FR Doc. 2010–17677 Filed 7–19–10; 8:45 am] Medicine, Building 38A, Room 7S709, applications, the disclosure of which BILLING CODE 4140–01–P Bethesda, MD 20892, 301–435–3137, would constitute a clearly unwarranted [email protected]. invasion of personal privacy. Any interested person may file written DEPARTMENT OF HEALTH AND comments with the committee by forwarding Name of Committee: Board of Regents of HUMAN SERVICES the statement to the Contact Person listed on the National Library of Medicine this notice. The statement should include the Subcommittee on Outreach and Public National Institutes of Health name, address, telephone number and when Information. applicable, the business or professional Date: September 14, 2010. National Library of Medicine; Notice of affiliation of the interested person. Time: 7:30 a.m. to 8:45 a.m. In the interest of security, NIH has Agenda: Outreach Activities. Meeting instituted stringent procedures for entrance Place: National Library of Medicine, Pursuant to section 10(a) of the onto the NIH campus. All visitor vehicles, Building 38, 2nd Floor, Conference Room B, Federal Advisory Committee Act, as including taxicabs, hotel, and airport shuttles 8600 Rockville Pike, Bethesda, MD 20892. will be inspected before being allowed on Contact Person: Donald A.B. Lindberg, MD, amended (5 U.S.C. App), notice is campus. Visitors will be asked to show one Director, National Library of Medicine, 8600 hereby given of a meeting of the Board form of identification (for example, a Rockville Pike, Bethesda, MD 20892, 301– of Scientific Counselors, Lister Hill government-issued photo ID, driver’s license, 496–6221, [email protected]. Center for Biomedical Communications. or passport) and to state the purpose of their Name of Committee: Board of Regents of The meeting will be open to the visit. the National Library of Medicine. public as indicated below, with (Catalogue of Federal Domestic Assistance Date: September 14–15, 2010. attendance limited to space available. Program No. 93.879, Medical Library

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Assistance, National Institutes of Health, DEPARTMENT OF HEALTH AND In the interest of security, NIH has HHS). HUMAN SERVICES instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, Dated: July 13, 2010. National Institutes of Health including taxicabs, hotel, and airport shuttles Jennifer Spaeth, will be inspected before being allowed on Director, Office of Federal Advisory National Library of Medicine; Notice of campus. Visitors will be asked to show one Committee Policy. Meeting form of identification (for example, a [FR Doc. 2010–17675 Filed 7–19–10; 8:45 am] government-issued photo ID, driver’s license, Pursuant to section 10(a) of the BILLING CODE 4140–01–P or passport) and to state the purpose of their Federal Advisory Committee Act, as visit. amended (5 U.S.C. App), notice is hereby given of a meeting of the Board (Catalogue of Federal Domestic Assistance DEPARTMENT OF HEALTH AND Program No. 93.879, Medical Library HUMAN SERVICES of Scientific Counselors, National Center for Biotechnology Information. Assistance, National Institutes of Health, HHS) National Institutes of Health The meeting will be open to the public as indicated below, with Dated: July 13, 2010. National Library of Medicine; Notice of attendance limited to space available. Jennifer Spaeth, Closed Meeting Individuals who plan to attend and Director, Office of Federal Advisory need special assistance, such as sign Committee Policy. Pursuant to section 10(d) of the language interpretation or other [FR Doc. 2010–17671 Filed 7–19–10; 8:45 am] reasonable accommodations, should Federal Advisory Committee Act, as BILLING CODE 4140–01–P amended (5 U.S.C. App), notice is notify the Contact Person listed below hereby given of a meeting of the in advance of the meeting. Biomedical Library and Informatics The meeting will be closed to the DEPARTMENT OF HEALTH AND Review Committee. public as indicated below in accordance HUMAN SERVICES with the provisions set forth in section The meeting will be closed to the 552b(c)(6), title 5 U.S.C., as amended for National Institutes of Health public in accordance with the review, discussion, and evaluation of provisions set forth in sections individual intramural programs and National Institute on Drug Abuse; 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., projects conducted by the National Notice of Closed Meeting as amended. The grant applications and Library of Medicine, including the discussions could disclose consideration of personnel Pursuant to section 10(d) of the confidential trade secrets or commercial qualifications and performance, and the Federal Advisory Committee Act, as property such as patentable materials, competence of individual investigators, amended (5 U.S.C. App), notice is and personal information concerning the disclosure of which would hereby given of the following meeting. constitute a clearly unwarranted individuals associated with the grant The meeting will be closed to the invasion of personal privacy. applications, the disclosure of which public in accordance with the would constitute a clearly unwarranted Name of Committee: Board of Scientific provisions set forth in sections invasion of personal privacy. Counselors, National Center for 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Biotechnology Technology. Name of Committee: Biomedical Library as amended. The contract proposals and Date: November 9, 2010. and Informatics Review Committee. Open: 8:30 a.m. to 12 p.m. the discussions could disclose Date: November 4–5, 2010. Agenda: Program Discussion. confidential trade secrets or commercial Time: November 4, 2010, 8 a.m. to 6 p.m. Place: National Library of Medicine, property such as patentable materials, Agenda: To review and evaluate grant Building 38, 2nd Floor, Board Room, 8600 and personal information concerning applications. Rockville Pike, Bethesda, MD 20892. individuals associated with the contract Place: National Library of Medicine, Closed: 12 p.m. to 2 p.m. proposals, the disclosure of which Building 38, 2nd Floor, Board Room, 8600 Agenda: To review and evaluate personal would constitute a clearly unwarranted Rockville Pike, Bethesda, MD 20892. qualifications and performance, and competence of individual investigators. invasion of personal privacy. Time: November 5, 2010, 8 a.m. to 2 p.m. Place: National Library of Medicine, Name of Committee: National Institute on Agenda: To review and evaluate grant Building 38, 2nd Floor, Board Room, 8600 Drug Abuse Special Emphasis Panel, applications. Rockville Pike, Bethesda, MD 20892. Research Dissemination (1143). Contact Person: Arthur A. Petrosian, PhD, Open: 2 p.m. to 3 p.m. Date: August 17–18, 2010. Chief Scientific Review Officer, Division of Agenda: Program Discussion. Time: 9 a.m. to 5 p.m. Extramural Programs, National Library of Place: National Library of Medicine, Agenda: To review and evaluate contract Medicine, 6705 Rockledge Drive, Suite 301, Building 38, 2nd Floor, Board Room, 8600 proposals. Bethesda, MD 20892–7968. 301–496–4253. Rockville Pike, Bethesda, MD 20892. Place: Courtyard by Marriott Rockville, [email protected]. Contact Person: David J. Lipman, MD, Director, National Center of Biotechnology 2500 Research Boulevard, Rockville, MD (Catalogue of Federal Domestic Assistance Information, National Library of Medicine, 20850. Program No. 93.879, Medical Library Department of Health and Human Services, Contact Person: Lyle Furr, Contract Review Assistance, National Institutes of Health, Building 38A, Room 8N805, Bethesda, MD Specialist, Office of Extramural Affairs, HHS) 20892, 301–435–5985, National Institute on Drug Abuse, NIH, Dated: July 13, 2010. [email protected]. DHHS, Room 220, MSC 8401, 6101 Executive Any interested person may file written Jennifer Spaeth, Boulevard, Bethesda, MD 20892–8401. (301) comments with the committee by forwarding 435–1439, lf33c.nih.gov. Director, Office of Federal Advisory the statement to the Contact Person listed on Committee Policy. this notice. The statement should include the (Catalogue of Federal Domestic Assistance Program Nos.: 93.279, Drug Abuse and [FR Doc. 2010–17673 Filed 7–19–10; 8:45 am] name, address, telephone number and when applicable, the business or professional Addiction Research Programs, National BILLING CODE 4140–01–P affiliation of the interested person. Institutes of Health, HHS)

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Dated: July 14, 2010. special accommodations due to a you intend to address, and other Jennifer Spaeth, disability, please contact Ann Staten pertinent information related to the Director, Office of Federal Advisory (see FOR FURTHER INFORMATION CONTACT) topic in your presentation, the names Committee Policy. at least 7 days in advance. and addresses of all individuals who [FR Doc. 2010–17672 Filed 7–19–10; 8:45 am] Notice of Participation and plan to participate, and the approximate BILLING CODE 4140–01–P Comments: Submit written or electronic time requested for your presentation. notices of participation and comments We encourage individuals and by September 1, 2010. The organizations with common interests to DEPARTMENT OF HEALTH AND administrative record of the hearing will consolidate or coordinate their HUMAN SERVICES remain open to receive additional presentations to allow adequate time for comments until October 20, 2010. each request for presentation. Food and Drug Administration ADDRESSES: Public Hearing: The public Participants should submit to the docket [Docket No. FDA–2010–N–0364] hearing will be held at 10903 New a copy of each presentation. Hampshire Ave., Bldg. 31, rm. 1503 (the We will file the hearing schedule Advancing the Development of Medical Great Room), Silver Spring, MD 20993. indicating the order of presentation and Products Used In the Prevention, You must enter through Bldg. 1 and the the time allotted to each person to the Diagnosis, and Treatment of Neglected security check-point to reach Bldg. 31. docket. We will also e-mail or telephone Tropical Diseases; Public Hearing Additional information on parking may the schedule to each participant before be accessed at http://www.fda.gov/ the hearing. In anticipation of the AGENCY: Food and Drug Administration, hearing presentations moving ahead of HHS. AboutFDA/WorkingatFDA/Buildingsand Facilities/WhiteOakCampus schedule, participants are encouraged to ACTION: Notice of public hearing; Information/default.htm. arrive early to ensure their designated request for comment. Notice of Participation and order of presentation. Participants who are not present when called risk SUMMARY: Comments: Submit notices of The Food and Drug forfeiting their scheduled time. Administration (FDA) is announcing a participation and comments, identifying public hearing to solicit general views the agency and Docket No. FDA–2010– II. Background and information from interested persons N–0364, by any of the following Approximately one billion people on issues related to advancing the methods: worldwide suffer from neglected development of medical products Electronic Submissions tropical diseases, e.g., malaria, Submit electronic notices of (drugs, biological products, and medical tuberculosis, and schistosomiasis. participation and comments in the devices) used in the prevention, Developing medical products to diagnosis, and treatment of neglected following way: prevent, diagnose, and treat neglected • Federal eRulemaking Portal: http:// tropical diseases. In particular, FDA is tropical diseases has not met global www.regulations.gov. Follow the seeking these views and information public health needs due to an array of instructions for making submissions. from interested persons on preclinical challenges. To encourage the Written Submissions studies, trial design, regulatory development of these much needed Submit written notices of approaches, and optimal solutions as medical products, section 740 of the participation and comments in the they relate to the prevention, diagnosis, Agriculture, Rural Development, Food and treatment of neglected tropical following ways: • Fax: 301–827–6870. and Drug Administration, and Related diseases. To help solicit such views and • Agencies Appropriation Act of 2010 information, FDA is seeking comments Mail/Hand delivery/Courier (for paper, disk, or CD–ROM submissions): (Public Law 111–80) directs FDA to on specific issues (see section IV of this establish a review group to recommend document). Division of Dockets Management (HFA– 305), Food and Drug Administration, to the Commissioner of Food and Drugs DATES: Public Hearing: The public 5630 Fishers Lane, Rm. 1061, Rockville, (the Commissioner) appropriate hearing will be held on September 22, MD 20852. preclinical studies, trial design, 2010, from 9 a.m. to 5 p.m. However, regulatory approaches, and optimal FOR FURTHER INFORMATION CONTACT: depending on the level of public Ann solutions to encourage the development participation, the meeting may extend M. Staten, Office of Critical Path of medical products to prevent, later or end early. Programs, Food and Drug diagnose, and treat neglected tropical Registration: Interested parties are Administration, 10903 New Hampshire diseases of the developing world. encouraged to register early. Ave., Bldg., 32, rm. 4106, Silver Spring, Registration is free. Seating will be MD 20993–0002, 301–796–8504, III. Purpose and Scope of the Hearing available on a first-come, first-served [email protected]. The purpose of this public hearing is basis. To register, e-mail your name, SUPPLEMENTARY INFORMATION: to provide advocates for patients with title, firm name, address, and telephone neglected tropical diseases, academics, numbers to I. How to Participate in the Meeting health care providers, the [email protected] or The procedures governing the hearing pharmaceutical and medical device call Ann Staten at 301–796–8504 by are set forth in part 15 (21 CFR part 15) industries, and other interested parties September 17, 2010. of FDA’s regulations. If you wish to an opportunity to address specific Registration on the day of the public make an oral presentation during the topics (see section IV of this document) hearing will be provided on a space- hearing, you must submit a written and present to FDA their views, available basis beginning at 7:30 a.m. To notice of participation (see ADDRESSES) recommendations, and any other allow sufficient time for parking and by September 1, 2010. In the written pertinent information related to the clearance through security, we notice, submit your name, title, business scope of this public hearing. This recommend arriving early. See section I affiliation, address, telephone number, information will assist the FDA review of the SUPPLEMENTARY INFORMATION and e-mail address. You should also group in making recommendations to section for information on how to submit a written statement for each the Commissioner regarding appropriate participate in the meeting. If you need issue in section IV of this document that preclinical studies, trial design,

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regulatory approaches, and optimal V. Notice of Hearing Under Part 15 only necessary to send one set of solutions to prevent, diagnose, and treat The Commissioner is announcing that comments. It is no longer necessary to neglected tropical diseases. the public hearing will be held in send two copies of mailed comments. The scope of this public hearing accordance with part 15. The hearing Identify submissions with the docket includes the issues described in sections will be conducted by a presiding officer, number found in brackets in the IV.A and IV.B of this document. In who will be accompanied by FDA heading of this document. Received addressing these issues, we ask that senior management from the Office of comments may be seen in the Division your comments focus particularly on the Commissioner, the Economics Staff, of Dockets Management between 9 a.m. preclinical studies, trial design, the Center for Drug Evaluation and and 4 p.m., Monday through Friday. regulatory approaches, and optimal Research, the Center for Biologics VII. Transcripts solutions as they relate to the Evaluation and Research, the Center for prevention, diagnosis, and treatment of Devices and Radiological Health, and The hearing will be transcribed as neglected tropical diseases. We are also the Office of the Chief Counsel. stipulated in § 15.30(b). Please be providing a few examples of discussion Persons who wish to participate in the advised that as soon as a transcript is items that would apply to each issue. part 15 hearing must file a written or available, it will be accessible at http:// However, we encourage you to comment electronic notice of participation with www.regulations.gov. It may be viewed on any subject related to the headings of the Division of Dockets Management at the Division of Dockets Management sections IV.A and IV.B of this (see ADDRESSES and DATES). Requests to (HFA–305), Food and Drug document. make a presentation should contain the Administration, 5630 Fishers Lane, rm. IV. Issues for Discussion potential presenter’s name and title; 1061, Rockville, MD. A transcript will address; telephone number; e-mail also be available in either hardcopy or A. What are the challenges to address; affiliation, if any; the sponsor on CD–ROM, after submission of a developing drugs, biological products, of the presentation (e.g., the Freedom of Information request. Written and medical devices used to prevent, organization paying travel expenses or requests are to be sent to Division of diagnose, and treat neglected tropical fees), if any; and a brief summary of the Freedom of Information (HFI–35), Office diseases? What are the specific areas presentation, including the discussion of Management Programs, Food and and diseases where progress is needed? topic(s) that will be addressed. Drug Administration, 5600 Fishers At a minimum, consider the Under § 15.30(f), the hearing is Lane, Rm. 6–30, Rockville, MD 20857. following: informal, and the rules of evidence do Dated: July 14, 2010. • Preclinical testing not apply. No participant may interrupt Leslie Kux, • Trial design the presentation of another participant. Acting Assistant Commissioner for Policy. Only the presiding officer and panel • Regulatory approaches [FR Doc. 2010–17619 Filed 7–19–10; 8:45 am] members may question any person B. What can be done to advance the during or at the conclusion of each BILLING CODE 4160–01–S development of products used to presentation. prevent, diagnose, and treat neglected Public hearings under part 15 are DEPARTMENT OF HEALTH AND tropical diseases in the developing subject to FDA’s policy and procedures HUMAN SERVICES world? for electronic media coverage of FDA’s At a minimum, consider the public administrative proceedings (part National Institutes of Health following: 10, subpart C (21 CFR part 10, subpart • The perceived challenges in C)). Under § 10.205, representatives of National Institute on Drug Abuse; obtaining FDA approval or clearance of the electronic media may be permitted, Notice of Closed Meeting a premarket submission for a product subject to certain limitations, to used to prevent, diagnose, or treat a videotape, film, or otherwise record Pursuant to section 10(d) of the neglected tropical disease FDA’s public administrative Federal Advisory Committee Act, as proceedings, including presentations by amended (5 U.S.C. App), notice is • The perceived benefit or non- participants. hereby given of the following meeting. benefit of: To the extent that the conditions for Æ orphan status designation The meeting will be closed to the the hearing, as described in this Æ the priority review voucher public in accordance with the document, conflict with any provisions provisions set forth in sections program under section 524 of the set out in part 15, this document acts as Federal Food, Drug and Cosmetic Act 552b(c)(4) and 552b(c)(6), title 5 U.S.C., a waiver of those provisions as specified as amended. The grant applications and (21 U.S.C. 360n) in § 15.30(h). Æ the humanitarian use device (HUD) the discussions could disclose and the humanitarian device exemption VI. Requests for Comments confidential trade secrets or commercial property such as patentable materials, (HDE) program Interested persons may submit to the Æ other potential incentives and personal information concerning Division of Dockets Management (see individuals associated with the grant • Novel approaches to advance the ADDRESSES) either electronic or written applications, the disclosure of which development of products for neglected notices of participation and comments would constitute a clearly unwarranted tropical diseases and regulatory for consideration at the hearing. To invasion of personal privacy. approaches permit time for all interested persons to • New strategies for international submit data, information, or views on Name of Committee: National Institute on cooperation, consultation, and this subject, the administrative record of Drug Abuse Special Emphasis Panel Systems collaboration in the review and Biology, HIV/AIDS, and Substance Abuse the hearing will remain open until (R01). approval of these products October 20, 2010. You should annotate • Date: July 27, 2010. Training or guidance necessary to and organize your comments to identify Time: 8 a.m. to 5 p.m. support the development of products for the specific issues to which they refer Agenda: To review and evaluate grant neglected tropical diseases (see section IV of this document). It is applications.

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Place: Sofitel Washington DC Lafayette DEPARTMENT OF HEALTH AND MOU is the exploration of high Square, 806 15th Street, NW., Washington, HUMAN SERVICES throughput screening (HTS) assays and DC 20005. tests using phylogenetically lower Contact Person: Eliane Lazar-Wesley, PhD, Food and Drug Administration animal species (e.g., fish, worms), as Health Scientist Administrator, Office of [Docket No. FDA–2010–N–0004] well as high throughput whole genome Extramural Affairs, National Institute on [FDA–225–10–0015] analytical methods, to evaluate Drug Abuse, NIH, DHHS, Room 220, MSC mechanisms of toxicity. Ultimately, the 8401, 6101 Executive Boulevard, Bethesda, Memorandum of Understanding: Food data generated by these new tools is to MD 20892–8401, 301–451–4530, and Drug Administration and the be provided to risk assessors to use in [email protected]. National Institutes of Health, National the protection of human health and the This notice is being published less than 15 Institutes of Environmental Health environment. The goals of this MOU are days prior to the meeting due to the timing Sciences, National Toxicology to investigate the use of these new tools limitations imposed by the review and Program; and the National Institutes of to: (1) Identify mechanisms of funding cycle. Health, National Human Genome chemically induced biological activity, Name of Committee: National Institute on Research Institute, National Institutes (2) prioritize chemicals for more Drug Abuse Special Emphasis Panel 2010 of Health, Chemical Genomics Center; extensive toxicological evaluation, and NIDA Translational Avant-Garde Award and the Environmental Protection (3) develop more predictive models of Interviews (DP1). Agency, Office of Research and in vivo biological response. Success in Date: July 27, 2010. Development achieving these goals is expected to Time: 8:30 a.m. to 6 p.m. result in test methods for toxicity testing AGENCY: Food and Drug Administration, Agenda: To review and evaluate grant HHS. that are more scientifically and applications. economically efficient and models for ACTION: Place: Westin Grand, 2350 M Street, NW., Notice. risk assessment that are more Washington, DC 20037. SUMMARY: The Food and Drug biologically based. As a consequence, a Contact Person: Scott Chen, PhD, Scientific Administration (FDA) is providing reduction or replacement of animals in Review Officer, Office of Extramural Affairs, notice of a memorandum of regulatory testing is anticipated to occur National Institute on Drug Abuse, National understanding (MOU) between FDA and in parallel with an increased ability to Institutes of Health, DHHS, 6101 Executive the National Institutes of Health (NIH), evaluate the large numbers of chemicals Boulevard, Room 220, MSC 8401, Bethesda, National Institutes of Environmental that currently lack adequate MD 20892, 301–443–9511, Health Sciences (NIEHS), National toxicological evaluation. [email protected]. Toxicology Program (NTP); and the NIH, This notice is being published less than 15 DATES: The agreement became effective National Human Genome Research June 4, 2010. days prior to the meeting due to the timing Institute (NHGRI), NIH Chemical limitations imposed by the review and Genomics Center (NCGC); and the FOR FURTHER INFORMATION CONTACT: funding cycle. Environmental Protection Agency, David Jacobson-Kram, Center for Drug (Catalogue of Federal Domestic Assistance Office of Research and Development. Evaluation and Research, 10903 New Program Nos.: 93.279, Drug Abuse and This four-party Memorandum of Hampshire Ave., Bldg. 22, rm. 6488, Addiction Research Programs, National Understanding (MOU) sets in place Food and Drug Administration, Silver Institutes of Health, HHS) mechanisms to strengthen the existing Spring, MD 20993, 301–796–0175, Dated: July 14, 2010. collaborations that utilize the [email protected]. Jennifer Spaeth, complementary expertise and SUPPLEMENTARY INFORMATION: In capabilities of the NIEHS/NTP, the accordance with 21 CFR 20.108(c), Director, Office of Federal Advisory NCGC of the NHGRI, the Office of Committee Policy. which states that all written agreements Research and Development (ORD) of the and MOUs between FDA and others [FR Doc. 2010–17670 Filed 7–19–10; 8:45 am] EPA, and the FDA in the research, BILLING CODE 4140–01–P shall be published in the Federal development, validation, and Register, the agency is publishing notice translation of new and innovative test of this MOU. methods that characterize key steps in toxicity pathways. This MOU amends Dated: July 14, 2010. and supersedes an MOU between the Leslie Kux, first three named parties for the same Acting Assistant Commissioner for Policy. purposes. A central component of this BILLING CODE 4160–01–S

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[FR Doc. 2010–17634 Filed 7–19–10; 8:45 am] BILLING CODE 4160–01–C

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DEPARTMENT OF HEALTH AND eukaryotic virus and transgenic rodents experiments that involve the generation HUMAN SERVICES in which the transgene is under the of transgenic rodents by breeding, as control of a gammaretroviral promoter. long as the transgenic rodents are National Institutes of Health This notice seeks public comment on appropriate to be maintained under BL1 this proposal. conditions. The rationale is that three Office of Biotechnology Activities; DATES: The public is encouraged to decades of experience working with and Recombinant DNA Research: submit written comments on these breeding transgenic rodents has Proposed Action Under the NIH proposed changes. Comments may be demonstrated that the overwhelming Guidelines for Research Involving submitted to the OBA in paper or majority of experiments involving Recombinant DNA Molecules (NIH electronic form at the OBA mailing, fax, breeding of transgenic rodents that can Guidelines) and e-mail addresses shown below be housed under BL1 conditions result AGENCY: National Institutes of Health under the heading FOR FURTHER in a rodent that can be appropriately (NIH), PHS, DHHS. INFORMATION CONTACT. All comments housed under BL1 conditions. These received by September 1, 2010 will be breeding experiments do not pose an ACTION: Notice of proposed action under appreciable risk to human health or to the NIH Guidelines. considered. All written comments received in response to this notice will the environment. In addition, while the SUMMARY: Under the NIH Guidelines, be available for public inspection in the registration with the IBC is not a experiments involving the generation of NIH OBA office, 6705 Rockledge Drive, significant burden, the total number of transgenic rodents by recombinant DNA Suite 750, MSC 7985, Bethesda, MD registrations required constitutes a technology must be registered with the 20892–7985, (Phone: 301–496–9838) significant collective administrative Institutional Biosafety Committee (IBC). weekdays between the hours of 8:30 burden on the IBC and researchers that Specifically, Section III–E–3 of the NIH a.m. and 5 p.m. does not appear to be commensurate Guidelines addresses the generation of with the very low biosafety risk. FOR FURTHER INFORMATION CONTACT: If There are still some breeding transgenic rodents that may be housed you have questions, or require experiments for which IBC registration under biosafety level (BL) 1 conditions additional information about these would be required in order to ensure and allows the work to proceed proposed changes, please contact OBA that a risk assessment is conducted and simultaneously with registration of the by e-mail at [email protected], or that the resulting rodent is disposed of experiment with the IBC. The IBC must telephone at 301–496–9838. Comments appropriately. The proposed exemption then review and approve the can be submitted to the same email would retain the requirement to register experiment. The NIH Guidelines address or by fax to 301–496–9839 or with the IBC when the genome of one ‘‘ address two pathways for generation of mail to the Office of Biotechnology of the parental transgenic rodents ’’ a transgenic rodent : altering the Activities, National Institutes of Health, contains more than 50 percent of the animal’s genome using recombinant 6705 Rockledge Drive, Suite 750, MSC genome of an exogenous, eukaryotic DNA technology or breeding one or 7985, Bethesda, Maryland 20892–7985. virus from a single family or if the more transgenic rodents to create a new Background: Section III–E of the NIH transgenic rodent’s transgene is under transgenic rodent (i.e., breeding of two Guidelines addresses experiments for the control of a gammaretroviral long different transgenic rodents or the which IBC notification is required at the terminal repeat (LTR). The restriction breeding of a transgenic rodent and a time the research is initiated. regarding exogenous eukaryotic viruses non-transgenic rodent). Experiments covered in this section of is designed to prevent inadvertent The NIH Office of Biotechnology the NIH Guidelines are considered to be reconstitution of an exogenous virus in Activities (OBA) received a request that of low biosafety risk and therefore the resultant transgenic mouse. The the breeding of well-characterized although IBC review and approval is restriction regarding transgenes under transgenic rodents that can be still required, such approval need not be control of a gammaretroviral long maintained under BL1 conditions be obtained prior to initiating research. terminal repeat addresses the small risk exempt from the NIH Guidelines. The This is in contrast to all other covered of recombination with endogenous rationale is that these experiments pose experiments described in the NIH retroviruses which could potentially little if any biosafety risk and therefore Guidelines for which IBC review and result in mobilization of the transgene the requirement for registration with the approval is required prior to initiation via a replication-competent mouse IBC may impose an administrative of the experiment. retrovirus. As the risk of recombination burden without enhancing the safe Under the NIH Guidelines, certain and possible transmission to humans is conduct of this research. In response to experiments can be exempted from the more likely with gammaretroviral LTRs this request, OBA brought a proposal to NIH Guidelines if they do not present a (e.g., MLV, XMRV, FeLV), the amend the NIH Guidelines to the significant risk to public health or the requirement for registration is limited to Recombinant DNA Advisory Committee environment (Section III–F–6). These rodents containing a transgene under (RAC) for consideration. The initial exemptions are delineated in Appendix control of these LTRs. proposal was discussed at the March 11, C of the NIH Guidelines. OBA was Specifically, the following changes 2010 RAC meeting and a revised recently approached regarding the are proposed to Appendix C of the NIH proposal was discussed at the June 16, Section III–E–3 requirement to register Guidelines: 2010 RAC meeting (Webcasts of these the breeding of transgenic rodents and discussions are available at http:// whether such experiments met the Appendix C–VII. Generation of BL1 oba.od.nih.gov/rdna_rac/ criteria for exemption under Section III– Transgenic Rodents via Breeding rac_meetings.html). The RAC endorsed F–6. OBA sought the advice of the RAC The breeding of two different a proposal that would exempt from the on this issue. transgenic rodents or the breeding of a NIH Guidelines the breeding of almost Currently, the purchase or transfer of transgenic rodent with a non-transgenic all transgenic rodents that can be transgenic rodents that require BL1 rodent with the intent of creating a new housed at BL1, with the exception of containment are exempt from the NIH strain of transgenic rodent that can be rodents that contain a gene encoding Guidelines. This proposal would extend housed at BL1 containment will be more than fifty percent of an exogenous that exemption to almost all exempt from the NIH Guidelines if:

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Both parental rodents can be housed inquiries regarding the specific test or and Border Protection, Office of under BL1 containment, and neither gauger service this entity is accredited Regulations and Rulings, 799 9th Street, parental transgenic rodent contains the or approved to perform may be directed NW., 7th Floor, Washington, DC 20229– following genetic modifications: to the U.S. Customs and Border 1177. (a) More than one-half of the genome Protection by calling (202) 344–1060. FOR FURTHER INFORMATION CONTACT: of an exogenous virus from a single The inquiry may also be sent to Requests for additional information Family of viruses; or [email protected]. Please reference the should be directed to U.S. Customs and (b) A transgene that is under the Web site listed below for a complete Border Protection, Attn.: Tracey control of a gammaretroviral long listing of CBP approved gaugers and Denning, U.S. Customs and Border terminal repeat (LTR); and accredited laboratories. http://cbp.gov/ Protection, Office of Regulations and It is anticipated that the transgenic xp/cgov/import/operations_support/ Rulings, 799 9th Street, NW., 7th Floor, rodent that results from this breeding: labs_scientific_svcs/ Washington, DC 20229–1177, at 202– (a) Will contain no more than one-half commercial_gaugers/. 325–0265. of an exogenous viral genome from a DATES: The accreditation and approval SUPPLEMENTARY INFORMATION: CBP single Family of viruses. of Camin Cargo Control, Inc., as The current Appendix C–VII and invites the general public and other commercial gauger and laboratory Appendices C–VII–A through C–VII–E Federal agencies to comment on became effective on April 29, 2010. The would be renumbered to Appendix C– proposed and/or continuing information next triennial inspection date will be VIII and Appendices C–VIII–A though collections pursuant to the Paperwork scheduled for April 2013. C–VIII–E, respectively. Reduction Act of 1995 (Pub. L. 104–13; For clarity the following will be FOR FURTHER INFORMATION CONTACT: 44 U.S.C. 3506(c)(2)(A)). The comments added to Section III–E–3. Anthony Malana, Laboratories and should address the accuracy of the Section III–E–3–a. Experiments Scientific Services, U.S. Customs and burden estimates and ways to minimize involving the breeding of certain BL1 Border Protection, 1300 Pennsylvania the burden including the use of transgenic rodents are exempt under Avenue, NW., Suite 1500N, automated collection techniques or the Section III–F, Exempt Experiments (See Washington, DC 20229, 202–344–1060. use of other forms of information Appendix C–VII, Generation of BL1 Dated: July 9, 2010. technology, as well as other relevant Transgenic Rodents via Breeding). Ira S. Reese, aspects of the information collection. The comments that are submitted will Dated: July 9, 2010. Executive Director, Laboratories and Scientific Services. be summarized and included in the CBP Jacqueline Corrigan-Curay, request for Office of Management and [FR Doc. 2010–17597 Filed 7–19–10; 8:45 am] Acting Director, Office of Biotechnology Budget (OMB) approval. All comments Activities, National Institutes of Health. BILLING CODE 9111–14–P will become a matter of public record. [FR Doc. 2010–17668 Filed 7–19–10; 8:45 am] In this document CBP is soliciting BILLING CODE 4140–01–P DEPARTMENT OF HOMELAND comments concerning the following SECURITY information collection: Title: Passenger and Crew Manifest DEPARTMENT OF HOMELAND U.S. Customs and Border Protection (Advance Passenger Information SECURITY System-APIS). Agency Information Collection OMB Number: 1651–0088. U.S. Customs and Border Protection Activities: Passenger and Crew Form Number: None. Manifest Abstract: The Advance Passenger Accreditation and Approval of Camin Information System (APIS) is an Cargo Control, Inc., as a Commercial AGENCY: U.S. Customs and Border automated method in which U.S. Gauger and Laboratory Protection, Department of Homeland Customs and Border Protection (CBP) Security. AGENCY: U.S. Customs and Border receives information on passengers and Protection, Department of Homeland ACTION: 60-Day Notice and request for crew onboard inbound and outbound Security. comments; Extension of an existing international flights before their arrival collection of information: 1651–0088. ACTION: Notice of accreditation and in or departure from the United States. APIS data includes biographical approval of Camin Cargo Control, Inc., SUMMARY: As part of its continuing effort information for international air as a commercial gauger and laboratory. to reduce paperwork and respondent passengers arriving in or departing from burden, U.S. Customs and Border (CBP) SUMMARY: Notice is hereby given that, the United States, allowing the data to invites the general public and other pursuant to 19 CFR 151.12 and 19 CFR be checked against CBP databases. Federal agencies to comment on an 151.13, Camin Cargo Control, Inc., 230 The information is submitted for both information collection requirement Marion Ave., Linden, NJ 07036, has commercial and private aircraft flights. concerning the Passenger and Crew been approved to gauge and accredited Specific data elements required for each Manifest (Advance Passenger to test petroleum and petroleum passenger and crew member include: Information System-APIS). This request products for customs purposes, in full name; date of birth; gender; for comment is being made pursuant to accordance with the provisions of 19 citizenship; document type; passport the Paperwork Reduction Act of 1995 CFR 151.12 and 19 CFR 151.13. Anyone number, country of issuance and (Pub. L. 104–13; 44 U.S.C. wishing to employ this entity to conduct expiration date; and alien registration 3506(c)(2)(A)). laboratory analyses and gauger services number where applicable. should request and receive written DATES: Written comments should be APIS is authorized under the Aviation assurances from the entity that it is received on or before September 20, and Transportation Security Act, Public accredited or approved by the U.S. 2010 to be assured of consideration. Law 107–71. Under this statute, the Customs and Border Protection to ADDRESSES: Direct all written comments transmission of passenger and crew conduct the specific test or gauger to U.S. Customs and Border Protection, manifest information is required even service requested. Alternatively, Attn.: Tracey Denning, U.S. Customs for flights where the passengers and

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crew have already been pre-screened or DEPARTMENT OF HOMELAND DEPARTMENT OF THE INTERIOR pre-cleared at the foreign location for SECURITY admission to the United States. APIS is National Park Service required under 19 CFR 122.49a, Federal Emergency Management 60-Day Notice of Intention To Request 122.49b, 122.49c, 122.75a, 122.75b, and Agency Clearance of Collection of Information; 122.22. Opportunity for Public Comment Respondents submit their electronic [Internal Agency Docket No. FEMA–1907– manifest either through a direct DR; Docket ID FEMA–2010–0002] AGENCY: Department of the Interior, interface with CBP, or using eAPIS National Park Service. North Dakota; Amendment No. 3 to which is a Web-based system that can ACTION: Notice and request for Notice of a Major Disaster Declaration be accessed at https://eapis.cbp.dhs. comments. gov/. AGENCY: Federal Emergency SUMMARY: Under the provisions of the Current Actions: This submission is Management Agency, DHS. Paperwork Reduction Act of 1995 and 5 being made to request an extension, and CFR part 1320, Reporting and Record ACTION: revise the burden hours as a result of Notice. Keeping Requirements, the National revised estimates by CBP. There are no Park Service (NPS) invites public changes to this information collection. SUMMARY: This notice amends the notice comments on renewal of an information of a major disaster declaration for the collection approved under Office of Type of Review: Extension with a State of North Dakota (FEMA–1907– Management and Budget (OMB) #1024– change to the burden hours. DR), dated April 30, 2010, and related 0216. Affected Public: Businesses, determinations. DATES: Public comments on this Individuals. DATES: Effective Date: July 13, 2010. Information Collection Request (ICR) Commercial Airlines will be accepted on or before September FOR FURTHER INFORMATION CONTACT: 20, 2010. Estimated Number of Respondents: Peggy Miller, Recovery Directorate, ADDRESSES: Send comments to: Jennifer 1,130. Federal Emergency Management Hoger Russell, Park Studies Unit, Agency, 500 C Street, SW., Washington, Estimated Number of Total Annual College of Natural Resources, University DC 20472, (202) 646–3886. Responses: 1,850,878. of Idaho, P.O. Box 441139, Moscow, ID 83844–1139; Phone: (208) 885–4806; SUPPLEMENTARY INFORMATION: The notice Estimated Time per Response: 10 Fax: (208) 885–4216; e-mail: of a major disaster declaration for the minutes. [email protected]. Also, you may send State of North Dakota is hereby Estimated Total Annual Burden comments to Cartina Miller, NPS amended to include the following areas Hours: 307,245. Information Collection Clearance among those areas determined to have ‘‘ ’’ Estimated Costs: $68,361,719. Officer, 1201 Eye St., NW., been adversely affected by the event Washington, DC 20005, or by e-mail to Commercial Airline Passengers (3rd declared a major disaster by the [email protected]. All responses Party) President in his declaration of April 30, to this notice will be summarized and 2010. included in the request for the Office of Estimated Number of Respondents: Bottineau, Kidder, McHenry, Renville, and Management and Budget (OMB) 184,050,663. Ward Counties for Public Assistance. approval. All comments will become a Estimated Number of Total Annual (The following Catalog of Federal Domestic matter of public record. To Request a Responses: 184,050,663. Assistance Numbers (CFDA) are to be used Draft of Proposed Collection of Information Contact: Jennifer Hoger Estimated Time per Response: 1 for reporting and drawing funds: 97.030, Russell, Park Studies Unit, College of minute. Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; Natural Resources, University of Idaho, Estimated Total Annual Burden 97.033, Disaster Legal Services; 97.034, P.O. Box 441139, Moscow, ID 83844– Hours: 3,128,861. Disaster Unemployment Assistance (DUA); 1139; Phone: (208) 885–4806; Fax: (208) 885–4216; e-mail: [email protected]. Private Aircraft Pilots 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to FOR FURTHER INFORMATION CONTACT: Dr. Estimated Number of Respondents: Individuals and Households In Presidentially Bruce Peacock, NPS Social Science 460,000. Declared Disaster Areas; 97.049, Division,1201 Oakridge Drive, Fort Estimated Number of Total Annual Presidentially Declared Disaster Assistance— Collins, CO 80525; or via phone at 970– Disaster Housing Operations for Individuals Responses: 460,000. 267–2106; or via e-mail at and Households; 97.050 Presidentially [email protected]. You are Estimated Time per Response: 15 Declared Disaster Assistance to Individuals entitled to a copy of the entire ICR minutes. and Households—Other Needs; 97.036, package free of charge. Disaster Grants—Public Assistance Estimated Total Annual Burden SUPPLEMENTARY INFORMATION: Hours: 115,000. (Presidentially Declared Disasters); 97.039, Title: National Park Service Visitor Hazard Mitigation Grant.) Dated: July 14, 2010. Survey Card. W. Craig Fugate, Bureau Form Number: None. Tracey Denning, OMB Number: 1024–0216. Agency Clearance Officer, U.S. Customs and Administrator, Federal Emergency Expiration Date: To be requested. Border Protection. Management Agency. Type of Request: Renewal of an [FR Doc. 2010–17598 Filed 7–19–10; 8:45 am] [FR Doc. 2010–17616 Filed 7–19–10; 8:45 am] existing information collection BILLING CODE 9111–23–P BILLING CODE 9111–14–P approval. Description of Need: The National Park Service Act of 1916, 38 Stat 535,

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16 U.S.C. 1, et seq., requires that the November 30, 2010. This request is for DEPARTMENT OF THE INTERIOR NPS preserve national parks for the use OMB approval for another three years. Fish and Wildlife Service and enjoyment of present and future Comments are invited on: (1) The generations. At the field level, this practical utility of the information being [FWS–R9–IA–2010–N144] [96200–1672– means resource preservation, public gathered; (2) the accuracy of the burden 0005–7E] education, facility maintenance and hour estimate; (3) ways to enhance the operation, and physical developments Information Collection Sent to the quality, utility, and clarity of the as are necessary for public use, health, Office of Management and Budget and safety. Other Federal mandates information to be collected; and (4) (OMB) for Approval; OMB Control (National Environmental Policy Act and ways to minimize the burden to Number 1018–0144; Wildlife Without NPS Management Policies) require respondents, including use of Borders—Amphibians in Decline Grant visitor use data in the impact automated information collection Program assessment of development on users and techniques or other forms of information resources as part of each park’s general technology. Before including your AGENCY: Fish and Wildlife Service, management plan. The Government address, phone number, e-mail address, Interior. Performance and Results Act (GPRA) of or other personal identifying ACTION: Notice; request for comments. 1993 (Pub. L. 103–62) requires that the information in your comment, you SUMMARY: We (Fish and Wildlife NPS develop goals to improve program should be aware that your entire Service) have sent an Information effectiveness and public accountability comment, including your personal Collection Request (ICR) to OMB for and to measure performance related to identifying information, may be made review and approval. We summarize the these goals. The Visitor Survey Card publicly available at any time. While ICR below and describe the nature of the (VSC) project measures performance you can ask us in your comment to collection and the estimated burden and toward those goals through a short withhold your personal identifying cost. This ICR is scheduled to expire on visitor survey card. The project is an information from public review, we September 30, 2010. We may not element of the NPS Strategic Plan and cannot guarantee that we will be able to conduct or sponsor and a person is not the Department of the Interior (DOI) do so. required to respond to a collection of Strategic Plan. information unless it displays a The NPS has used the VSC to conduct Automated data collection: This currently valid OMB control number. surveys at approximately 330 National information will be collected via mail However, under OMB regulations, we Park Service units annually since 1998. and locked, on-site collection boxes. No may continue to conduct or sponsor this The purpose of the VSC is to measure automated data collection will occur. information collection while it is visitors’ opinions about park facilities, Description of respondents: Visitors to pending at OMB. services, and recreational opportunities approximately 330 NPS units. in each park unit and System-wide. This DATES: You must send comments on or Estimated average number of before August 19, 2010. effort is required by GPRA and other respondents: 132,000 visitors who ADDRESSES: Send your comments and NPS and DOI strategic planning efforts. accept the survey card (92,400 non- Data from the proposed survey is suggestions on this information respondents and 39,600 respondents) needed to assess performance regarding collection to the Desk Officer for the and 1,188 visitors who refuse to take the NPS GPRA goals IIa1A and IIb1. The Department of the Interior at OMB– relevant NPS GPRA goals are: survey card but are willing to answer OIRA at (202) 395–5806 (fax) or IIa1A: Percent of visitors satisfied the two demographic questions and the [email protected] (e-mail). with appropriate facilities, services and overall satisfaction question. Please provide a copy of your comments recreational opportunities. Estimated average burden hours per to Hope Grey, Information Collection IIb1: Visitor understanding and response: 1 minute for non-respondents, Clearance Officer, Fish and Wildlife appreciation of the significance of the 3 minutes for respondents, and 2 Service, MS 222–ARLSQ, 4401 North park they are visiting. minutes for visitors who refuse to take Fairfax Drive, Arlington, VA 22203 _ In addition, the survey collects data to the survey card but are willing to (mail) or hope [email protected] (e-mail). support the DOI Strategic Plan goal on answer the two demographic questions FOR FURTHER INFORMATION CONTACT: To visitor satisfaction with the value for and the overall satisfaction question. request additional information about this ICR, contact Hope Grey by mail or entrance fees paid to access public lands Frequency of Response: 1 time per e-mail (see ADDRESSES) or by managed by the DOI. NPS performance respondent. on all goals measured in this study will telephone at (703) 358–2482. contribute to DOI Department-wide Estimated annual reporting burden: SUPPLEMENTARY INFORMATION: performance reports. Results of the VSC 3,560 hours. OMB Control Number: 1018–0144. will also be used by park managers to Dated: July 7, 2010. Title: Wildlife Without Borders— improve visitor services at the Cartina Miller, Amphibians in Decline Grant Program. approximately 330 units of the National Service Form Number(s): 3–2338B. NPS, Information Collection Clearance Park System where the survey is Officer. Type of Request: Extension of a administered. currently approved collection. [FR Doc. 2010–17585 Filed 7–19–10; 8:45 am] The VSC is a component of the Visitor Affected Public: Domestic and Services Project, which is funded by the BILLING CODE 4312–52–P nondomestic Federal, State, and local NPS through a cooperative agreement governments; nonprofit, with the Park Studies Unit at the nongovernmental organizations; public University of Idaho, and has been in use and private institutions of higher since 1998. The NPS received clearance education; and any other organization or for the VSC from OMB under the individual with demonstrated original clearance number (OMB# 1024– experience deemed necessary to carry 0216). That clearance will expire on out the proposed project.

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Respondent’s Obligation: Required to Frequency of Collection: On occasion. obtain or retain a benefit.

Number of annual Number of annual Completion time Annual burden Activity respondents responses per response hours

Applications ...... 40 40 12 hours...... 480 Reports ...... 10 20 30 hours...... 600 Totals ...... 50 60 ...... 1,080

Abstract: Section 8 of the Endangered One commenter voiced opposition to DEPARTMENT OF THE INTERIOR Species Act (16 U.S.C. 1531–43) spending tax dollars for this program. authorizes the establishment of the Another commenter supported the Fish and Wildlife Service Wildlife Without Borders—Amphibians program and expressed interest in [FWS-R7-FHC-2010-N145] [71490-1351-0000- in Decline grant program to fund applying for a grant. The third L5] projects that conserve the world’s commenter also expressed interest in rapidly declining amphibian species. applying for a grant. None of the Proposed Information Collection; OMB This program will support activities that commenters addressed the information Control Number 1018-0070; Incidental address threats to frogs, toads, collection requirements, and we did not Take of Marine Mammals During salamanders, newts, and caecilians that Specified Activities make any changes to our collection. We face an unprecedented threat of sent a copy of the NOFA to each AGENCY: extinction. Funding will be made Fish and Wildlife Service, available for conservation of species individual interested in applying. Interior. with native ranges in countries with the We again invite comments concerning ACTION: Notice; request for comments. this information collection on: greatest need for conservation funding. SUMMARY: We (Fish and Wildlife Applicants submit proposals for • Whether or not the collection of Service) will ask the Office of funding in response to a Notice of information is necessary, including Management and Budget (OMB) to Funding Availability that we publish on whether or not the information will approve the information collection (IC) Grants.gov and the program web page. have practical utility; described below. As required by the Applications consist of: Paperwork Reduction Act of 1995 and (1) Cover page with basic project • The accuracy of our estimate of the as part of our continuing efforts to details (FWS Form 3–2338B). burden for this collection of (2) Project summary and narrative. information; reduce paperwork and respondent (3) Letter of appropriate government burden, we invite the general public and • Ways to enhance the quality, utility, endorsement. other Federal agencies to take this (4) Brief curricula vitae for key project and clarity of the information to be opportunity to comment on this IC. This personnel. collected; and IC is scheduled to expire on November (5) Complete Standard Forms 424 and • Ways to minimize the burden of the 30, 2010. We may not conduct or 424b (non-domestic applicants do not collection of information on sponsor and a person is not required to submit the standard forms). respondents. respond to a collection of information Applications may also include, as unless it displays a currently valid OMB appropriate, a copy of the organization’s Comments that you submit in control number. response to this notice are a matter of Negotiated Indirect Cost Rate Agreement DATES: To ensure that we are able to public record. Before including your (NIRCA) and any additional consider your comments on this IC, we documentation supporting the proposed address, phone number, e-mail address, must receive them by September 20, project. or other personal identifying 2010. All assistance awards under this information in your comment, you ADDRESSES: program have a maximum reporting should be aware that your entire Send your comments on the requirement of a: comment, including your personal IC to Hope Grey, Information Collection (1) Mid-term report (performance identifying information, may be made Clearance Officer, Fish and Wildlife Service, MS 222–ARLSQ, 4401 North report and a financial status report) due publicly available at any time. While Fairfax Drive, Arlington, VA 22203 within 30 days of the conclusion of the you can ask OMB in your comment to (mail); or [email protected] (e-mail). first half of the project period, and withhold your personal identifying FOR FURTHER INFORMATION CONTACT: To (2) Final report (performance and information from public review, we request additional information about financial status report and copies of all cannot guarantee that it will be done. deliverables, photographic this IC, contact Hope Grey by mail or e- documentation of the project and Dated: July 14, 2010. mail (see ADDRESSES) or by telephone products resulting from the project) due Hope Grey, at (703) 358–2482. within 90 days of the end of the Information Collection Clearance Officer, SUPPLEMENTARY INFORMATION: performance period. Fish and Wildlife Service. I. Abstract Comments: On April 14, 2010, we [FR Doc. 2010–17632 Filed 7–19–10; 8:45 am] published in the Federal Register (75 This revised IC combines the FR 19420) a notice of our intent to BILLING CODE 4310–55–S information collection requirements request that OMB renew this associated with specified marine information collection. In that notice, mammal activities in the Beaufort Sea we solicited comments for 60 days, and Chukchi Sea and the adjacent coast ending on June 14, 2010. We received of Alaska. The Office of Management three comments in response to that and Budget approved the information notice. collection requirements associated with

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oil and gas exploration activities in the Authorization (LOA) for the specific should be in the LOA. In addition, we Chukchi Sea and assigned OMB Control activity and submit onsite monitoring will analyze the information to No. 1018-0139, which expires June 30, reports and a final report of the activity determine impacts to the marine 2011. If OMB approves this combined to the Secretary. This is a nonform mammals and the availability of those request, we will discontinue OMB collection. Regulations at 50 CFR 18.27 marine mammals for subsistence Control No. 1018-0139. outline the procedures and purposes of Alaska Natives. The Marine Mammal Protection Act requirements for submitting a request. II. Data (MMPA) of 1972, as amended (16 U.S.C. Specific regulations governing 1361 et seq.) imposed, with certain authorized activities in the Beaufort Sea OMB Control Number: 1018-0070. exceptions, a moratorium on the taking are in 50 CFR 18, subpart J. Regulations Title: Incidental Take of Marine of marine mammals. Section governing authorized activities in the Mammals During Specified Activities, 101(a)(5)(A) of the MMPA directs the Chukchi Sea are in 50 CFR 18, subpart 50 CFR 18.27 and 50 CFR 18, Subparts Secretary of the Interior to allow, upon I. These regulations provide the I and J. request by citizens of the United States, applicant with a detailed description of Service Form Numbers: None. the taking of small numbers of marine information that we need to evaluate the Type of Request: Revision of currently mammals incidental to specified proposed activity and determine approved collection. activities (other than commercial whether or not to issue specific fishing) if the Secretary makes certain Affected Public: Oil and gas industry findings and prescribes specific regulations and, subsequently, LOAs. companies. regulations that, among other things, We use the information to verify the Respondent’s Obligation: Required to establish permissible methods of taking. finding required to issue incidental take obtain or retain a benefit. Applicants seeking to conduct regulations, to decide if we should issue Frequency of Collection: On occasion. activities must request a Letter of an LOA, and, if issued, what conditions Number of Respondents: 25 or less.

Number of an- Completion time Annual burden Activity nual responses per response hours

One-time application for procedural regulations ...... 2 300 hours 600 LOA requests ...... 25 24 hours 600 Onsite monitoring and observation reports ...... 150 1.5 hours 225 Final monitoring report ...... 25 8 hours 200 Totals ...... 202 1,625

III. Request for Comments Dated: July 13, 2010. responsible for the determinations in Hope Grey, this notice. We invite comments concerning this Information Collection Clearance Officer, In 1990, Native American cultural IC on: Fish and Wildlife Service. items were donated to the High Desert • Whether or not the collection of [FR Doc. 2010–17631 Filed 7–19–10; 8:45am] Museum by the Roger J. Bounds information is necessary, including BILLING CODE 4310–55–S Foundation, in the form of the Doris whether or not the information will Swayze Bounds Collection. Between the have practical utility; 1950s and 1970s, Doris Bounds • The accuracy of our estimate of the DEPARTMENT OF THE INTERIOR collected the majority of the items burden for this collection of through purchases and gifts. There are National Park Service information; seven objects that meet the definition of ‘‘unassociated funerary objects’’ or • Ways to enhance the quality, utility, Notice of Intent to Repatriate Cultural ‘‘sacred objects.’’ The three unassociated and clarity of the information to be Items: High Desert Museum, Bend, OR funerary objects are one pair of collected; and AGENCY: National Park Service, Interior. moccasins, one single moccasin, and • Ways to minimize the burden of the one beaded necklace. The four sacred collection of information on ACTION: Notice. objects are one beaded fetish lizard- respondents. shaped object, one whistle with Comments that you submit in Notice is here given in accordance feathered adornment, one headdress, response to this notice are a matter of with the Native American Graves and one scalp lock. public record. We will include or Protection and Repatriation Act Upon the initial accession of the summarize each comment in our request (NAGPRA), 25 U.S.C. 3005, of the intent objects into the High Desert Museum’s to OMB to approve this IC. Before to repatriate cultural items in the collection in 1990, a number of scholars including your address, phone number, possession of the High Desert Museum, and Native American representatives e-mail address, or other personal Bend, OR, that meet the definition of from Columbia Plateau, Great Basin, and identifying information in your ‘‘unassociated funerary objects’’ or Plains tribes, identified the seven comment, you should be aware that ‘‘sacred objects’’ under 25 U.S.C. 3001. objects as being culturally sensitive or your entire comment, including your This notice is published as part of the specific grave items of the Sioux or personal identifying information, may National Park Service’s administrative Assiniboine. Since 2004, the High be made publicly available at any time. responsibilities under NAGPRA, 25 Desert Museum has consulted with the While you can ask us in your comment U.S.C. 3003(d)(3). The determinations in Assiniboine and Sioux Tribes of the Fort to withhold your personal identifying this notice are the sole responsibility of Peck Indian Reservation, Montana. information from public review, we the museum, institution, or Federal During consultation, the NAGPRA cannot guarantee that we will be able to agency that has control of the cultural representative of the Assiniboine and do so. items. The National Park Service is not Sioux Tribes of the Fort Peck Indian

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Reservation, Montana, identified the DEPARTMENT OF THE INTERIOR The Menominee Indian Reservation objects as being either funerary or falls within the ancestral and historic sacred objects, and culturally affiliated National Park Service territory of the Menominee people. to the tribe. The High Desert Museum’s Archeological investigation has Notice of Inventory Completion: U.S. collection records confirm that the uncovered additional historic burials in Department of the Interior, Bureau of objects are from the Poplar, MT, region this area. Additionally, archeological Indian Affairs, Washington, DC and and culturally affiliated specifically to research shows that copper ornaments Wisconsin Historical Society, Museum and earrings, similar to the objects the Assiniboine and Sioux Tribes of the Division, Madison, WI Fort Peck Indian Reservation, Montana. mentioned above, are commonly found within historic Indian burials Officials of the High Desert Museum AGENCY: National Park Service, Interior. ACTION: Notice. throughout the Great Lakes region. have determined that, pursuant to 25 Furthermore, Menominee oral history U.S.C. 3001(3)(B), the three cultural Notice is here given in accordance states that the origin of the Menominee items described above (unassociated with the Native American Graves people began at the mouth of the funerary objects) are reasonably Protection and Repatriation Act, Menominee River, which is believed to have been placed with or (NAGPRA), 25 U.S.C. 3003, of the approximately 60 miles from the near individual human remains at the completion of an inventory of human present-day Menominee Reservation. time of death or later as part of the death remains and associated funerary objects Officials of the Bureau of Indian rite or ceremony and are believed, by a in the control of the U.S. Department of Affairs and Wisconsin Historical preponderance of the evidence, to have the Interior, Bureau of Indian Affairs, Society, Museum Division, have been removed from a specific burial site Washington, DC, and in the possession determined that, pursuant to 25 U.S.C. of a Native American individual. of the Wisconsin Historical Society, (aka 3001(9), the human remains described Officials of the High Desert Museum State Historical Society of Wisconsin), above represent the physical remains of also have determined that, pursuant to Museum Division, Madison, WI. The one individual of Native American 25 U.S.C. 3001(3)(C), the four cultural human remains and associated funerary ancestry. Officials of the Bureau of items described above (sacred objects) objects were removed from the Indian Affairs and Wisconsin Historical are specific ceremonial objects needed Menominee Reservation, Menominee Society, Museum Division, also have by traditional Native American religious County (formerly Shawano County), WI. determined that, pursuant to 25 U.S.C. leaders for the practice of traditional This notice is published as part of the 3001(3)(A), the three objects described Native American religions by their National Park Service’s administrative above are reasonably believed to have present-day adherents. Lastly, officials responsibilities under NAGPRA, 25 been placed with or near individual of the High Desert Museum have U.S.C. 3003(d)(3). The determinations in human remains at the time of death or determined that, pursuant to 25 U.S.C. this notice are the sole responsibility of later as part of the death rite or 3001(2), there is a relationship of shared the museum, institution, or Federal ceremony. Lastly, officials of the Bureau group identity that can be reasonably agency that has control of the human of Indian Affairs and Wisconsin traced between the unassociated remains and associated funerary objects. Historical Society, Museum Division, The National Park Service is not funerary objects and sacred objects and have determined that, pursuant to 25 responsible for the determinations in the Assiniboine and Sioux Tribes of the U.S.C. 3001(2), there is a relationship of this notice. Fort Peck Indian Reservation, Montana. shared group identity that can be A detailed assessment of the human reasonably traced between the Native Representatives of any other Indian remains was made by Wisconsin American human remains and tribe that believes itself to be culturally Historical Society, Museum Division, associated funerary objects and the affiliated with the unassociated funerary staff in consultation with Menominee Indian Tribe of Wisconsin. objects and/or sacred objects should representatives of the Menominee contact Tracy Johnson, Curator of Indian Tribe of Wisconsin. Representatives of any other Indian Collections and Exhibits, High Desert In 1928, human remains representing Tribe that believes itself to be culturally affiliated with the human remains and Museum, 59800 South Highway 97, a minimum of one individual were associated funerary objects should Bend, OR 97702, telephone (541) 382– removed from a mound located within contact Jennifer L. Kolb, Wisconsin 4754, before August 19, 2010. the boundaries of the Menominee Indian Tribe Reservation, Menominee Historical Museum, 30 N. Carroll St., Repatriation of the unassociated Madison, WI 53703, telephone (608) funerary objects and sacred objects to County (formerly Shawano County), WI, by Arthur P. Kannenberg and John V. 261–2461, before August 19, 2010. the Assiniboine and Sioux Tribes of the Repatriation of the human remains and Fort Peck Indian Reservation, Montana, Satterlee. The exact location is not known. In 1950, the museum obtained associated funerary objects to the may proceed after that date if no Menominee Indian Tribe of Wisconsin additional claimants come forward. the human remains, associated funerary objects, and unassociated funerary may proceed after that date if no The High Desert Museum is objects from the wife of Arthur P. additional claimants come forward. responsible for notifying the Kannenberg. No known individual was The Wisconsin Historical Society, Assiniboine and Sioux Tribes of the Fort identified. The three associated funerary Museum Division, is responsible for Peck Indian Reservation, Montana, that objects are earrings. notifying the Menominee Indian Tribe this notice has been published. The human remains, associated of Wisconsin that this notice has been Dated: July 9, 2010. funerary objects, and unassociated published. funerary objects removed by Arthur P. Sherry Hutt, Dated: July 9, 2010. Kannenberg and John V. Satterlee were Manager, National NAGPRA Program. from at least two mounds. The 91 Sherry Hutt, [FR Doc. 2010–17478 Filed 7–19–10; 8:45 am] unassociated funerary objects are Manager, National NAGPRA Program. BILLING CODE 4312–50–S described in a companion Notice of [FR Doc. 2010–17477 Filed 7–19–10; 8:45 am] Intent to Repatriate Cultural Items. BILLING CODE 4312–50–P

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DEPARTMENT OF THE INTERIOR Secretary of the Interior to allow, upon (iii) placing physical barriers between request, the incidental, but not the marine mammals and the Fish and Wildlife Service intentional, taking of small numbers of subsistence hunters; and (2) that cannot [FWS–R8–FHC–2010–N136; 81440–1351– marine mammals by U.S. citizens who be sufficiently mitigated by other 8SSO–L5–FY10] engage in a specified activity (other than measures to increase the availability of commercial fishing) within a specified marine mammals to allow subsistence Marine Mammals; Incidental Take geographical region, provided that we needs to be met.’’ The subsistence During Specified Activities make certain findings and either issue provision does not apply to southern sea regulations or, if the taking is limited to otters. AGENCY: Fish and Wildlife Service, harassment, provide a notice of a Section 101(a)(5)(D) of the MMPA Interior. proposed authorization to the public for established an expedited process by ACTION: Notice of receipt of application review and comment. which U.S. citizens can apply for an and proposed incidental harassment We may grant authorization to authorization to incidentally take small authorization; request for comments. incidentally take marine mammals if we numbers of marine mammals where the find that the taking will have a take will be limited to harassment. SUMMARY: We, the U.S. Fish and negligible impact on the species or Section 101(a)(5)(D)(iii) establishes a 45- Wildlife Service (Service), have received stock(s), and will not have an day time limit for Service review of an an application from the National unmitigable adverse impact on the application, followed by a 30-day public Oceanic and Atmospheric availability of the species or stock(s) for notice and comment period on any Administration Restoration Center, subsistence uses. As part of the proposed authorizations for the Southwest Region, for authorization to authorization process, we prescribe incidental harassment of marine take small numbers of marine mammals permissible methods of taking and other mammals. Within 45 days of the close by harassment incidental to means of affecting the least practicable of the comment period, we must either construction of the Parson’s Slough impact on the species or stock and its issue or deny issuance of the Project, a tidal wetlands restoration habitat, and requirements pertaining to authorization. We refer to these project on the Elkhorn Slough National the monitoring and reporting of such authorizations as Incidental Harassment Estuarine Research Reserve in northern takings. Authorizations (IHAs). Monterey County, California. In The term ‘‘take,’’ as defined by the accordance with provisions of the MMPA, means to harass, hunt, capture, Summary of Request Marine Mammal Protection Act of 1972 or kill, or to attempt to harass, hunt, On April 27, 2010, we received a (MMPA), as amended, we request capture, or kill, any marine mammal. request from the National Oceanic and comments on our proposed Harassment, as defined by the MMPA, Atmospheric Administration authorization for the applicant to means ‘‘any act of pursuit, torment, or Restoration Center, Southwest Region incidentally take, by harassment, small annoyance which (i) has the potential to (Applicant) for MMPA authorization to numbers of southern sea otters for a injure a marine mammal or marine take by harassment southern sea otters period of 6 months beginning on mammal stock in the wild [the MMPA (Enhydra lutris nereis) incidental to September 1, 2010, and ending on calls this Level A harassment], or (ii) construction activities associated with March 1, 2011. We anticipate no take by has the potential to disturb a marine the Parson’s Slough Project. The injury or death and include none in this mammal or marine mammal stock in the Parson’s Slough Project is a tidal proposed authorization, which would wild by causing disruption of behavioral wetlands restoration project on the be for take by harassment only. patterns, including, but not limited to, Elkhorn Slough National Estuarine DATES: Comments and information must migration, breathing, nursing, breeding, Research Reserve in northern Monterey be received by August 19, 2010. feeding, or sheltering [the MMPA calls County, California. ’’ Under the proposed action, the ADDRESSES: You may submit comments this Level B harassment]. The terms ‘‘small numbers,’’ Applicant would construct a partially by any of the following methods: ‘‘negligible impact,’’ and ‘‘unmitigable submerged tidal barrier (a sill) at the 1. By U.S. mail or hand-delivery to: adverse impact’’ are defined in 50 CFR mouth of Parson’s Slough Channel. The Diane Noda, Field Supervisor, Ventura 18.27, the Service’s regulations Parson’s Slough Channel leads to the Fish and Wildlife Office, 2493 Portola governing take of small numbers of Parson’s Slough study area, which Road, Suite B, Ventura, CA 93003. marine mammals incidental to specified consists of the 254-acre (1-square- 2. By fax to: 805–644–3958, attention activities. ‘‘Small numbers’’ is defined as kilometer) Parson’s Slough Complex to Diane Noda, Field Supervisor. ‘‘a portion of a marine mammal species and the 161-acre (0.7-square-kilometer) 3. By electronic mail (e-mail) to: or stock whose taking would have a South Marsh Area. The sill would be a [email protected]. negligible impact on that species or fixed structure, consisting of steel sheet Please include your name and return stock.’’ ‘‘Negligible impact’’ is defined as piles extending 270 feet (82 meters) address in your message. ‘‘an impact resulting from the specified across the mouth of the channel. A span FOR FURTHER INFORMATION CONTACT: To activity that cannot be reasonably of 100 feet (30 meters) at the center of request copies of the application, the list expected to, and is not reasonably likely the structure would remain submerged of references used in this notice, and to, adversely affect the species or stock more than 99 percent of the time, other supporting materials, contact through effects on annual rates of allowing for the exchange of water Lilian Carswell at the address in recruitment or survival.’’ ‘‘Unmitigable between Parson’s Slough and Elkhorn ADDRESSES, or by e-mail at adverse impact’’ is defined as ‘‘an impact Slough. Within this span, a notch 25 _ Lilian [email protected]. resulting from the specified activity (1) feet (7.6 meters) wide would permit the SUPPLEMENTARY INFORMATION: that is likely to reduce the availability passage of water at all tide levels and of the species to a level insufficient for allow for the movement of fish and Background a harvest to meet subsistence needs by wildlife between Parson’s Slough and Sections 101(a)(5)(A) and (D) of the (i) causing the marine mammals to Elkhorn Slough. The top elevation of the MMPA, as amended (16 U.S.C. 1371 abandon or avoid hunting areas, (ii) notch would be ¥5 feet (¥1.5 meters) (a)(5)(A) and (D)), authorize the directly displacing subsistence users, or North American Vertical Datum

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(NAVD), whereas the remainder of the b. Geographic Location of Action Slough and spent a large proportion of central span would have a top elevation The site of construction is the mouth time hauled out on pickleweed ¥ ¥ of 2 feet ( 0.6 meters) NAVD. of the Parson’s Slough Channel, in the (Salicornia virginica) during low tides, The purpose of the proposed action is vicinity of the Union Pacific Railroad dispersing into Elkhorn Slough at high to reduce tidal scour within the Elkhorn bridge (railroad bridge), milepost tides (Maldini et al. 2010). A detailed description of the habitat, status, and Slough action area in general and the 103.27, Coast Subdivision. Parson’s distribution of southern sea otters in Parson’s Slough study area in particular. Slough is located on the southeast side Elkhorn Slough in general and Parson’s Conversion of wetlands to pasture of the Elkhorn Slough Estuary, which is situated 90 miles (145 kilometers) south Slough in particular is included in during the 1900s by means of diking Vinnedge (2010a) and Maldini et al. of San Francisco and 20 miles (32 and draining caused the subsidence of (2010). land to an elevation too low to support kilometers) north of Monterey, in marsh vegetation (Elkhorn Slough Tidal Monterey County, California. Status and Distribution of Affected Species Wetland Project Team 2007). Since the Description of Habitat and Marine mid-20th century, tidal erosion and the Mammals Affected by the Activity Southern sea otters are listed as inundation of interior marsh areas have threatened under the ESA (42 FR 2965; caused a reversal of the proportion of Approximately 100 sea otters January 14, 1977) and, because of their salt marsh habitat to mudflat habitat currently use Elkhorn Slough for threatened status, are automatically within Elkhorn Slough. The Parson’s foraging, resting, and other activities. In considered ‘‘depleted’’ under the Slough Complex, historically recent years, sea otters have increasingly MMPA. The State of California also utilized protected side channels of the characterized by tidal marsh and tidal recognizes the southern sea otter as a slough and the Parson’s Slough creeks, now consists primarily of fully protected mammal (Fish and Game Complex. Detailed pre-project mudflats intersected by subtidal Code section 4700) and as a protected monitoring of marine mammal use of channels. The average land elevation in marine mammal (Fish and Game Code the Parson’s Slough area was conducted the Parson’s Slough Complex is now section 4500). All members of the by Okeanis researchers under contract southern sea otter population are approximately 2.4 feet (0.7 meters) to the Elkhorn Slough National below the level that can support tidal descendants of a small group that Estuarine Research Reserve from survived the fur trade near Big Sur, marsh vegetation. Without intervention, October, 2009, to January, 2010. In the excessive erosion will continue to California. Historically ranging from at course of 19 daytime counts and 6 least as far north as Oregon (Valentine widen tidal channels and convert salt nighttime monitoring sessions, during marsh to mudflat, resulting in a et al. 2008) to Punta Abreojos, Baja which the number of sea otters entering California, Mexico in the south, significant loss of habitat function and and exiting the Parson’s Slough a decrease in estuarine biodiversity. southern sea otters currently occur in Complex was counted, researchers only two areas of California. The A detailed description of the observed sea otters using 3 main areas mainland population ranges from San proposed action is contained in a near the site of the proposed sill. One Mateo County to Santa Barbara County Biological Assessment prepared by of these areas (used by up to 20 animals) and numbers approximately 2,800 Vinnedge Environmental Consulting for was located within the Parson’s Slough animals (the 3-year running average for the Elkhorn Slough National Estuarine Complex. The two other areas (used by spring 2009 is 2,813) (http:// Research Reserve and the Applicant approximately 10 animals each) were www.werc.usgs.gov/ (Vinnedge 2010a). The general impacts located on Yampah Island, outside but Project.aspx?ProjectID=91). A small, associated with the design and adjacent to the Parson’s Slough translocated population occurs at San construction phases of the Parson’s Complex. These areas appeared to be Nicolas Island, numbering 39 animals as Slough Project are described in the centered on three male territories. At of 2009 (USGS unpublished data). Data Community-Based Restoration Program least some of the associated females from recent years suggest that southern (CRP) Programmatic Environmental used multiple male territories and the sea otter population numbers are stable Assessment (PEA) and the Seal Bend area in the main channel of or slightly declining. Supplemental Programmatic Elkhorn Slough (Maldini et al. 2010). Sea otters using the Parson’s Slough Potential Impacts of Sill Construction Environmental Assessment (SPEA). The on Sea Otters Applicant will complete a Targeted Complex regularly transited into and Supplemental Environmental out of the complex via the channel The proposed activities have the Assessment (TSEA) to include all below the railroad bridge to forage in potential to disturb resting, foraging, project-specific impacts not described in the main channel of Elkhorn Slough. At and other activities of sea otters in the the CRP PEA/SPEA. The Applicant has least two other male sea otters were vicinity of construction activities. requested formal consultation with the detected accessing the Parson’s Slough Disturbance would be due primarily to Complex via land and using the channel construction noise and activity. Service under the Endangered Species to the northeast of the railroad bridge. Construction of the sill would entail Act of 1973 (ESA), as amended (16 Hourly scans of the complex during driving 2 rows of 7 end-bearing piles to U.S.C. 1531 et seq.). daylight hours revealed that sea otters an elevation of approximately ¥80 feet Description of the Activity using the complex spent most of their (¥24 meters) and a single row of time resting in water (62 percent) and sheetpile (between the end-bearing Parson’s Slough Project, Monterey the remainder of their time resting on piles) using a vibratory hammer and, if County, California land (10 percent), foraging (15 percent), necessary, an impact hammer to a. Timing of Construction grooming (3 percent), traveling into and complete the driving. An additional 14 out of the complex (7 percent), and temporary end-bearing sheet piles Construction of the sill would interacting with other sea otters (3 would be installed in the main channel commence as early as September 1, percent). Sea otters using the Yampah of Elkhorn Slough at a staging site near 2010, and continue approximately 12– Island area tended to access it via land Kirby Park, where sea otter presence has 17 weeks. from the main channel of Elkhorn historically been minimal (1 or

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occasionally 2 animals) and limited to acres (0.045 square kilometers) of Parson’s Slough Complex also regularly foraging activity (D. Maldini, Okeanis, intertidal mudflat habitat to subtidal enter and utilize Elkhorn Slough proper. pers. comm.). habitat. The increase in soft sediments Little is known regarding the effects of within the Parson’s Slough Complex Potential Impacts on Subsistence Needs sound on sea otters. Sea otters have not resulting from reduced tidal scour The subsistence provision of the been reported as particularly sensitive would likely result in a beneficial effect MMPA does not apply to southern sea to sound disturbance, especially in on sea otters by increasing the otters. comparison to other marine mammals availability of soft sediment habitat for such as pinnipeds (Riedman 1983; burrowing prey. However, muted tidal Mitigation Measures Riedman 1984; Efroymson and Suter flows could also result in a small (5- 2001). However, observed sea otter percent) increase in hypoxic (lack of As described in Vinnedge (2010) and responses to disturbance are highly oxygen) conditions, which may decrease in correspondence between the variable, probably reflecting the level of habitat suitability for benthic (bottom- Applicant and the Service, the following noise and activity to which they have dwelling) invertebrates. measures would be implemented to been exposed and become acclimated Other potential effects on habitat avoid, minimize, and mitigate the over time and the particular location include the introduction of a barrier to effects of the proposed action on and social or behavioral state of that movement into and out of the Parson’s southern sea otters: individual (G. Bentall, Monterey Bay Slough Complex (either by direct Aquarium Sea Otter Research and physical means or by means of a. Timing of Construction Must Avoid Conservation Program, pers. comm.). increased water velocities flowing over the Birth Peak for Sea Otters in Elkhorn Ambient sound levels within the action the sill during ebb and flood tides) and Slough area are generally low, with the notable changes in concentrations of pathogens Construction activities will be timed exception of the Union Pacific Railroad and contaminants. Noise and activity to avoid peak pupping periods for tracks, which are located within the may deter animals from entering the marine mammals. A birth peak project footprint and accommodate Parson’s Slough Complex during sill generally occurs in California from late approximately 15–10 trains per day construction, but in the long term the February to early April, although sea (Vinnedge 2010b). Noise and sill would not likely present a physical disturbance associated with barrier to sea otter movement, because otters may reproduce at any time of year construction will likely cause sea otters a central span of 100 feet (30 meters) (Siniff and Ralls 1991), and the birth utilizing the Parson’s Slough Complex would remain submerged more than 99 peak may not be synchronous in all and Yampah Island area to disperse into percent of the time, within which a parts of California (Riedman et al. 1994). the main channel of Elkhorn Slough, notch of 25 feet (7.6 meters) would In Elkhorn Slough, the birth peak and may discourage the use of areas remain submerged at all times. Water appears to occur in March and April near the construction site even when flows across the sill would not prevent (Maldini 2010). Construction activities construction activities are not under access to the Parson’s Slough Complex, will begin as early as September 1, 2010, way. The temporary displacement of sea because the modeled peak tidal and cease on or before March 1, 2011. otters due to construction activity is not velocities across the sill—7–12 feet/ b. Elkhorn Slough National Estuarine expected to result in effects on second (2.1–3.7 meters/second) (Ducks Research Reserve Must Provide individual fitness because of the general Unlimited et al. 2010)—are much slower Construction Awareness Training availability in Elkhorn Slough of than average wave velocities in the Specific to Marine Mammals for All suitable habitat for resting, foraging, and turbulent waters regularly negotiated by Personnel other activities. sea otters, and because most sea otter Other potential impacts on sea otters movements into and out of the complex Before the onset of construction include disturbance due to light during occur during slack tides (Maldini et al. activities, a qualified biologist will periods of nighttime construction and 2010), during which flows across the sill conduct an education program for all the risk of oiling/ingesting oil in the would remain unchanged from current construction personnel. At a minimum event of a spill of petroleum conditions. the training will include a description of hydrocarbon products used in Effects of the proposed sill on levels southern sea otters and their habitat, the construction equipment. Disturbance of pathogens or contaminants in occurrence of the species within the due to artificial light is not expected to Parson’s Slough or Elkhorn Slough are project action area, an explanation of cause additional effects beyond those unclear because their sources and the status of the species and its caused by construction noise and transport are not well understood. If protection under the ESA and MMPA, activity. The risk of accidental release of pathogens or contaminants are entering construction-related fluids will be the Elkhorn Slough system by means of the measures that are being minimized by means of measures Parson’s Slough, then the sill would implemented to minimize disturbance outlined in ‘‘Mitigation Measures’’ tend to concentrate them by means of to sea otters and their habitat as they below. decreased flushing in the upper slough. relate to the construction, and the However, if they are entering Elkhorn authority given to the biological monitor Potential Effects on Habitat Slough by means of the Gabilan/ to stop construction at any point. A fact Construction of the Parson’s Slough Tembladero watershed or the Old sheet conveying this information will be Project would entail the placement of Salinas River channel, then construction prepared for distribution to the approximately 2,000 cubic yards (1,529 of the sill would lead to lower construction personnel and other cubic meters) of rock and sheetpile and concentrations of pathogens and project personnel who may enter the would result in the loss of contaminants within the Parson’s project area. Upon completion of the approximately 0.75 acres (4047 square Slough Complex (McCarthy 2009). program, personnel will sign a form meters) of subtidal habitat within the Levels of exposure of sea otters to stating that they attended the program project footprint. However, operation of pathogens and contaminants may not be and understand all the avoidance and the proposed sill is expected to result in appreciably different under either minimization measures and the conversion of approximately 11 scenario, because animals using the requirements of the ESA and MMPA.

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c. Construction Activities Causing 1.5 percent of the estimated population Marine Mammal Monitoring Noise-Related Disturbance Must Be size. The Applicant would be required to Conducted at High Tide to the (2) Monitoring requirements and conduct marine mammal monitoring Maximum Extent Practicable mitigation measures are expected to during construction of the Parson’s The occurrence of hauled-out sea limit the number of incidental takes. Slough Project in order to implement otters near the proposed construction Biological monitors would be present 30 the mitigation measures that require site is lowest at high tide (Maldini et al. minutes before and during all real-time monitoring and to satisfy 2010). Construction activities causing construction activity and would have monitoring required under the MMPA. noise-related disturbance, such as pile- the authority to stop construction if sea Project personnel would be required to driving, will be conducted at high tide otters appeared to be unduly harassed or record information regarding location to the maximum extent practicable. in danger of injury. Conducting noise- and behavior of all sea otters observed producing construction activities at high during operations. When conditions d. Ramp-Up Procedures Must Be Used tide, to the maximum extent practicable, permit, information regarding age (pup, In order to avoid startling animals would further reduce the number of sea adult) and any tagged animals would with sudden loud noises, noise- otters that may be harassed. also be required to be recorded. producing construction activities will Negligible Impact begin gradually. Biological monitors Monitoring and Reporting will be present 30 minutes before The Service finds that any incidental The Applicant must implement the construction begins and will have the take by harassment that is reasonably following monitoring and reporting authority to halt operations if animals likely to result from the proposed program to increase knowledge appear unduly harassed or in danger of project would not adversely affect the regarding the species, and to assess the injury. southern sea otter through effects on level of take caused by the proposed rates of recruitment or survival, and action: e. Fuel Storage and All Fueling and would, therefore, have no more than a Equipment Maintenance Activities Must negligible impact on the stock. In a. Pre-Construction Monitoring Be Conducted at Least 100 Feet (30 making this finding, we considered the Pre-construction monitoring will Meters) From Subtidal and Intertidal best available scientific information, begin up to 2 weeks before construction Habitat including: (1) The biological and activities begin, and end no sooner than Sea otters are susceptible to the behavioral characteristics of the species; 24 hours before construction activities adverse effects of oiling due to fuel (2) the most recent information on begin. The purpose of pre-construction spills because they depend on the distribution and abundance of sea otters monitoring is to document sea otter insulation of their dense fur to keep within the area of the proposed activity; numbers and distribution in the warm. They may also ingest oil during (3) the potential sources of disturbance surrounding areas shortly before the grooming and feeding. Fuel storage and during the proposed activity; and (4) the onset of disturbance. Observation all fueling and equipment maintenance potential response of southern sea otters methods will be approved by the activities will be conducted at least 100 to disturbance. Service. feet (30 meters) from subtidal and The mitigation measures outlined intertidal habitat. Implementation of the above are intended to minimize the b. Construction Monitoring proposed action will require approval number of sea otters that may be A biological monitor will be present and implementation or a site-specific disturbed by the proposed activity. Any daily. Monitoring will begin 30 minutes Storm Water Pollution Prevention Plan, impacts to individuals are expected to before construction activity begins and which will include a hazardous spill be limited to Level B harassment of continue until construction personnel prevention plan. short-term duration. Response of sea have left the site. The biological monitor otters to disturbance would most likely will maintain a log that documents Findings be common behaviors such as diving numbers of marine mammals present We propose the following findings and/or swimming away from the source before, during, and at the conclusion of regarding this action: of the disturbance. No take by injury or daily activities. The monitor will record death is anticipated. We find that the Small Numbers Determination and basic weather conditions and marine anticipated harassment caused by the Estimated Take by Incidental mammal behavior and will have the proposed activities is not expected to Harassment authority to stop construction if sea adversely affect the species or stock otters appear to be unduly harassed or For small take analysis, the statute through effects on annual rate of in danger of injury. and legislative history do not expressly recruitment or survival. require a specific type of numbers Our finding of negligible impact c. Post-Construction Monitoring analysis, leaving the determination of applies to incidental take associated Post-construction monitoring will ‘‘small’’ to the agency’s discretion. with the proposed activity as mitigated consist of surveys during peak Factors considered in our small through this authorization process. This occupational time and tidal cycles for 4 numbers determination include the authorization establishes monitoring weeks following completion of sill following: and reporting requirements to evaluate construction. If sea otters demonstrate (1) The number of southern sea otters the potential impacts of the authorized the ability to move freely across the sill utilizing the affected area is small activities, as well as mitigation and resume normal behavior, relative to the size of the southern sea measures designed to minimize monitoring may end before 4 weeks otter population. The mainland interactions with, and impacts to, with concurrence of the Service. southern sea otter population numbers southern sea otters. approximately 2,800 animals. The d. Reporting number of southern sea otters that could Impact on Subsistence The applicant will submit a report to potentially be taken by harassment in The subsistence provision of the the Service within 30 days of the association with the proposed project, MMPA does not apply to southern sea conclusion of monitoring efforts. The approximately 40 animals, is less than otters. report will include a summary of the

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daily log maintained by the biological beyond this period would require a be held on September 2, 2010, in monitor during construction and request for renewal. Dickinson, North Dakota. The meeting information from pre- and post- The final IHA will incorporate the will start at 8 a.m. and adjourn at construction monitoring. mitigation, monitoring, and reporting approximately 3:30 p.m. When requirements discussed in this proposal. determined, the meeting location will be Endangered Species Act The Applicant will be responsible for announced in a news release. The proposed activity will occur following those requirements. These FOR FURTHER INFORMATION CONTACT: within the range of the southern sea authorizations will not allow the Mark Jacobsen, Public Affairs Specialist, otter, which is presently listed as intentional taking of southern sea otters. BLM Eastern Montana/Dakotas District, threatened under the ESA. The If the level of activity exceeds that 111 Garryowen Road, Miles City, Applicant has initiated consultation described by the Applicant, or the level Montana 59301, telephone (406) 233– under section 7 of the ESA with the or nature of take exceeds those projected 2831. Service’s Ventura Fish and Wildlife here, the Service will reevaluate its SUPPLEMENTARY INFORMATION: The 15- Office. We will complete intra-Service findings. The Secretary may modify, member Council advises the Secretary section 7 consultation prior to suspend, or revoke an authorization if of the Interior through the Bureau of finalization of the IHA. the findings are not accurate or the conditions described in this notice are Land Management on a variety of National Environmental Policy Act not being met. planning and management issues (NEPA) associated with public land The design and construction phases of Request for Public Comments management in the Dakotas. At these the Parson’s Slough Project are The Service requests interested meetings, topics will include: North described in the CRP PEA and/or SPEA persons to submit comments and Dakota and South Dakota Field Office prepared by the Applicant. The information concerning this proposed manager updates, subcommittee Applicant is currently preparing a TSEA IHA. Consistent with section briefings, work sessions, and other to include all project elements not 101(a)(5)(D)(iii) of the MMPA, we are issues that the council may raise. All described in the CRP PEA/SPEA. If we opening the comment period on this meetings are open to the public and the find it to be adequate and appropriate, proposed authorization for 30 days (see public may present written comments to we will adopt the TSEA as the DATES). the Council. Each formal Council foundation of the Service’s Before including your address, phone meeting will also have time allocated for Environmental Assessment (EA) of number, e-mail address, or other hearing public comments. Depending on whether issuance of the IHA will have personal identifying information in your the number of persons wishing to a significant effect on the human comment, you should be aware that comment and time available, the time environment. These analyses will be your entire comment—including your for individual oral comments may be completed prior to issuance or denial of personal identifying information—may limited. Individuals who plan to attend the IHA and will be available at http:// be made publicly available at any time. and need special assistance, such as www.fws.gov/ventura/speciesinfo/ While you can ask us in your comment sign language interpretation, tour so_sea_otter/. To obtain a copy of the to withhold your personal identifying transportation, or other reasonable CRP PEA or SPEA, contact the information from public review, we accommodations should contact the individual identified in the FOR FURTHER cannot guarantee that we will be able to BLM as provided above. INFORMATION CONTACT section. do so. Michael D. Nedd, Government-to-Government Relations Dated: July 14, 2010. Acting State Director. With Native American Tribal Ren Lohoefener, [FR Doc. 2010–17687 Filed 7–19–10; 8:45 am] Governments Regional Director, Pacific Southwest Region. BILLING CODE 4310–DN–P In accordance with the President’s [FR Doc. 2010–17674 Filed 7–19–10; 8:45 am] BILLING CODE 4310–55–P memorandum of April 29, 1994, DEPARTMENT OF THE INTERIOR ‘‘Government-to-Government Relations with Native American Tribal DEPARTMENT OF THE INTERIOR Bureau of Land Management Governments’’ (59 FR 22951), Executive [LLMTC 00900.L16100000.DP0000] Order 13175, Secretarial Order 3225, Bureau of Land Management and the Department of the Interior’s [LLMTC 00900.L16100000.DP0000] Notice of Public Meeting, Eastern manual at 512 DM 2, we readily Montana Resource Advisory Council acknowledge our responsibility to Notice of Public Meeting, Dakotas Meeting communicate meaningfully with Resource Advisory Council Meeting Federally recognized Tribes on a AGENCY: Bureau of Land Management, Government-to-Government basis. We AGENCY: Bureau of Land Management, Interior. have evaluated possible effects on Interior. ACTION: Notice of public meeting. Federally recognized Indian Tribes and ACTION: Notice of public meeting. have determined that there are no SUMMARY: In accordance with the effects. SUMMARY: In accordance with the Federal Land Policy and Management Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Proposed Authorization Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. The Service proposes to issue an IHA Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of for small numbers of southern sea otters Department of the Interior, Bureau of Land Management (BLM) Eastern harassed incidentally by the Applicant Land Management (BLM) Dakotas Montana Resource Advisory Council while the applicant is constructing the Resource Advisory Council (RAC) will (RAC) will meet as indicated below. Parson’s Slough Project, beginning meet as indicated below. DATES: The next regular meeting of the September 1, 2010, and ending March 1, DATES: The next regular meeting of the Eastern Montana Resource Advisory 2011. Authorization for incidental take Dakotas Resource Advisory Council will Council will be held on August 26,

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2010, in Miles City, Montana. The Agenda published to obtain comments from the meeting will start at 8 a.m. and adjourn The September 13, 2010, Commission public and affected agencies. This at approximately 3:30 p.m. When meeting will consist of the following: proposed information collection was determined, the meeting location will be previously published in the Federal announced in a news release. 1. Committee reports: Register Volume 75, Number 95, page FOR FURTHER INFORMATION CONTACT: —Land Conservation. 27820–27821, on May 19, 2010, Mark Jacobsen, Public Affairs Specialist, —Park Use. allowing for a 60-day comment period. BLM Eastern Montana/Dakotas District, —Science and Education. The purpose of this notice is to allow 111 Garryowen Road, Miles City, —Historic. for an additional 30 days for public Montana 59301, telephone (406) 233– 2. Old Business. comment until August 19, 2010. This 2831. 3. Superintendent’s Report. process is conducted in accordance with 4. Chairman’s Report. 5 CFR 1320.10. SUPPLEMENTARY INFORMATION: The 15- member Council advises the Secretary 5. Public Comments. Written comments and/or suggestions of the Interior through the Bureau of FOR FURTHER INFORMATION CONTACT: regarding the items contained in this Land Management on a variety of Further information concerning this notice, especially the estimated public planning and management issues meeting may be obtained from the burden and associated response time, associated with public land Superintendent, Acadia National Park, should be directed to the Office of management in Montana. At these P.O. Box 177, Bar Harbor, Maine 04609, Management and Budget, Office of meetings, topics will include: Miles City telephone (207) 288–3338. Information and Regulatory Affairs, and Billings Field Office manager SUPPLEMENTARY INFORMATION: The Attention Department of Justice Desk updates, subcommittee briefings, work meeting is open to the public. Interested Officer, Washington, DC 20503. sessions, and other issues that the persons may make oral/written Additionally, comments may be council may raise. All meetings are presentations to the Commission or file submitted to OMB via facsimile to (202) open to the public and the public may written statements. Such requests 395–5806. present written comments to the should be made to the Superintendent Written comments and suggestions Council. Each formal Council meeting at least seven days prior to the meeting. from the public and affected agencies will also have time allocated for hearing Before including your address, phone concerning the proposed collection of public comments. Depending on the number, e-mail address, or other information are encouraged. Your number of persons wishing to comment personal identifying information in your comments should address one or more and time available, the time for comment, you should be aware that of the following four points: individual oral comments may be your entire comment—including your (1) Evaluate whether the proposed limited. Individuals who plan to attend personal identifying information—may collection of information is necessary and need special assistance, such as be made publicly available at any time. for the proper performance of the sign language interpretation, tour While you can ask us in your comment functions of the agency, including transportation, or other reasonable to withhold your personal identifying whether the information will have accommodations should contact the information from public review, we practical utility; BLM as provided above. cannot guarantee that we will be able to (2) Evaluate the accuracy of the do so. agency’s estimate of the burden of the Michael D. Nedd, proposed collection of information, Acting State Director. Dated: July 7, 2010. including the validity of the [FR Doc. 2010–17686 Filed 7–19–10; 8:45 am] Sheridan Steele, methodology and assumptions used; BILLING CODE 4310–DN–P Superintendent, Acadia National Park. (3) Enhance the quality, utility, and [FR Doc. 2010–17587 Filed 7–19–10; 8:45 am] clarity of the information to be BILLING CODE 4310–2N–P collected; and DEPARTMENT OF THE INTERIOR (4) Minimize the burden of the collection of information on those who National Park Service DEPARTMENT OF JUSTICE are to respond, including through the use of appropriate automated, Notice of September 13, 2010 Meeting [OMB Number 1122–NEW] for Acadia National Park Advisory electronic, mechanical, or other Commission Office on Violence Against Women technological collection techniques or other forms of information technology, AGENCY: National Park Service, Agency Information Collection e.g., permitting electronic submission of Department of Interior. Activities: New Collection responses. ACTION: Notice of September 13, 2010 Overview of This Information Meeting for Acadia National Park ACTION: 30-Day Notice of Information Collection Advisory Commission. Collection Under Review: Semi-Annual Progress Report for Grantees from the (1) Type of Information Collection: SUMMARY: This notice sets the date of Service to Advocate for and Respond to New collection. September 13, 2010, meeting of the Youth Program. (2) Title of the Form/Collection: Semi- Acadia National Park Advisory Annual Progress Report for Grantees Commission. The Department of Justice, Office on from the Services to Advocate for and DATES: The public meeting of the Violence Against Women (OVW), will Respond to Youth Program. Advisory Commission will be held on be submitting the following information (3) Agency form number, if any, and Monday, September 13, 2010, at 1 p.m. collection request to the Office of the applicable component of the (EASTERN). Management and Budget (OMB) for Department of Justice sponsoring the Location: The meeting will be held at review and approval in accordance with collection: Form Number: 1122–XXXX. Park Headquarters, Bar Harbor, Maine the Paperwork Reduction Act of 1995. U.S. Department of Justice, Office on 04609. The proposed information collection is Violence Against Women.

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(4) Affected public who will be asked DEPARTMENT OF JUSTICE technological collection techniques or or required to respond, as well as a brief other forms of information technology, [OMB Number 1122–NEW] abstract: The affected public includes e.g., permitting electronic submission of the approximately 45 grantees of the Office on Violence Against Women: responses. Services to Advocate for and Respond to Agency Information Collection Overview of This Information Youth Program. This is the first Federal Activities: New Collection Collection funding stream solely dedicated to the (1) Type of Information Collection: provision of direct intervention and ACTION: 30-Day Notice of Information Collection Under Review: Semi-Annual New collection. related assistance for youth victims of (2) Title of the Form/Collection: Semi- sexual assault, domestic violence, Progress Report for Grantees from the Tribal Sexual Assault Services Program. Annual Progress Report for Grantees dating violence and stalking. Overall, from the Tribal Sexual Assault Services the purpose of the Youth Services The Department of Justice, Office on Program. Program is to provide direct counseling, Violence Against Women (OVW), will (3) Agency form number, if any, and advocacy, legal advocacy, and mental be submitting the following information the applicable component of the health services for youth victims of collection request to the Office of Department of Justice sponsoring the sexual assault, domestic violence, Management and Budget (OMB) for collection: Form Number: 1122–XXXX. dating violence, and stalking, as well as review and approval in accordance with U.S. Department of Justice, Office on linguistically, culturally, or community the Paperwork Reduction Act of 1995. Violence Against Women. relevant services for underserved The proposed information collection is (4) Affected public who will be asked populations. published to obtain comments from the or required to respond, as well as a brief public and affected agencies. This abstract: The affected public includes (5) An estimate of the total number of the approximately 15 grantees of the respondents and the amount of time proposed information collection was previously published in the Federal Tribal Sexual Assault Services Program. estimated for an average respondent to Register Volume 75, Number 95, page The Sexual Assault Services Program respond/reply: It is estimated that it will 27819, on May 18, 2010, allowing for a (SASP), created by the Violence Against take the approximately 45 respondents 60-day comment period. Women Act of 2005 (VAWA 2005), is (grantees from the Services to Advocate The purpose of this notice is to allow the first federal funding stream solely for and Respond to Youth Program) for an additional 30 days for public dedicated to the provision of direct approximately one hour to complete a comment until August 19, 2010. This intervention and related assistance for semi-annual progress report. The semi- process is conducted in accordance with victims of sexual assault. The SASP annual progress report is divided into 5 CFR 1320.10. encompasses four different funding sections that pertain to the different Written comments and/or suggestions streams for States and Territories, types of activities in which grantees regarding the items contained in this Tribes, State Sexual Assault Coalitions, may engage. A Services to Advocate for notice, especially the estimated public Tribal Coalitions, and culturally specific and Respond to Youth Program grantee burden and associated response time, organizations. Overall, the purpose of will only be required to complete the should be directed to the Office of SASP is to provide intervention, sections of the form that pertain to its Management and Budget, Office of advocacy, accompaniment, support own specific activities. Information and Regulatory Affairs, services, and related assistance for Attention Department of Justice Desk adult, youth, and child victims of sexual (6) An estimate of the total public Officer, Washington, DC 20503. assault, family and household members burden (in hours) associated with the Additionally, comments may be of victims, and those collaterally collection: The total annual hour burden submitted to OMB via facsimile to (202) affected by the sexual assault. to complete the data collection forms is 395–5806. The Tribal SASP supports efforts to 90 hours, that is 45 grantees completing Written comments and suggestions help survivors heal from sexual assault a form twice a year with an estimated from the public and affected agencies trauma through direct intervention and completion time for the form being one concerning the proposed collection of related assistance from social service hour. information are encouraged. Your organizations such as rape crisis centers If additional information is required comments should address one or more through 24-hour sexual assault hotlines, contact: Lynn Bryant, Department of the following four points: crisis intervention, and medical and Clearance Officer, United States (1) Evaluate whether the proposed criminal justice accompaniment. The Tribal SASP will support such services Department of Justice, Justice collection of information is necessary through the establishment, Management Division, Policy and for the proper performance of the maintenance, and expansion of rape Planning Staff, Two Constitution functions of the agency, including whether the information will have crisis centers and other programs and Square, 145 N Street, NE., Suite 2E–502, practical utility; projects to assist those victimized by Washington, DC 20530. (2) Evaluate the accuracy of the sexual assault. Dated: July 15, 2010. agency’s estimate of the burden of the (5) An estimate of the total number of Lynn Bryant, proposed collection of information, respondents and the amount of time estimated for an average respondent to Department Clearance Officer, United States including the validity of the Department of Justice. methodology and assumptions used; respond/reply: It is estimated that it will (3) Enhance the quality, utility, and take the approximately 15 respondents [FR Doc. 2010–17698 Filed 7–19–10; 8:45 am] clarity of the information to be (grantees from the Tribal Sexual Assault BILLING CODE 4410–FX–P collected; and Services Program) approximately one (4) Minimize the burden of the hour to complete a semi-annual progress collection of information on those who report. The semi-annual progress report are to respond, including through the is divided into sections that pertain to use of appropriate automated, the different types of activities in which electronic, mechanical, or other grantees may engage. A Tribal SASP

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grantee will only be required to Officer, Washington, DC 20503. assistance to grantees and their complete the sections of the form that Additionally, comments may be subgrantees to enhance the success of pertain to its own specific activities. submitted to OMB via facsimile to (202) local projects they are implementing (6) An estimate of the total public 395–5806. with VAWA grant funds. In addition, burden (in hours) associated with the Written comments and suggestions OVW is focused on building the collection: The total annual hour burden from the public and affected agencies capacity of criminal justice and victim to complete the data collection forms is concerning the proposed collection of services organizations to respond 30 hours, that is 15 grantees completing information are encouraged. Your effectively to sexual assault, domestic a form twice a year with an estimated comments should address one or more violence, dating violence, and stalking completion time for the form being one of the following four points: and to foster partnerships between hour. (1) Evaluate whether the proposed organizations that have not traditionally If additional information is required collection of information is necessary worked together to address violence contact: Lynn Bryant, Department for the proper performance of the against women, such as faith- and Clearance Officer, United States functions of the agency, including community-based organizations. Department of Justice, Justice whether the information will have (6) An estimate of the total public Management Division, Policy and practical utility; burden (in hours) associated with the Planning Staff, Two Constitution (2) Evaluate the accuracy of the collection: The total annual hour burden Square, 145 N Street, NE., Suite 2E–502, agency’s estimate of the burden of the to complete the semi-annual progress Washington, DC 20530. proposed collection of information, report form is 200 hours. It will take including the validity of the approximately one hour for the grantees Dated: July 15, 2010. methodology and assumptions used; to complete the form twice a year. Lynn Bryant, (3) Enhance the quality, utility, and If additional information is required Department Clearance Officer, PRA, United clarity of the information to be contact: Lynn Bryant, Department States Department of Justice. collected; and Clearance Officer, United States [FR Doc. 2010–17697 Filed 7–19–10; 8:45 am] (4) Minimize the burden of the Department of Justice, Justice BILLING CODE 4410–FX–P collection of information on those who Management Division, Policy and are to respond, including through the Planning Staff, Two Constitution use of appropriate automated, Square, 145 N Street, NE., Suite 2E–502, DEPARTMENT OF JUSTICE electronic, mechanical, or other Washington, DC 20530. [OMB Number 1122–0017] technological collection techniques or Dated: July 15, 2010. other forms of information technology, Lynn Bryant, Office on Violence Against Women; e.g., permitting electronic submission of Department Clearance Officer, PRA, United Agency Information Collection responses. States Department of Justice. Activities: Extension of a Currently Overview of This Information [FR Doc. 2010–17691 Filed 7–19–10; 8:45 am] Approved Collection Collection BILLING CODE 4410–FX–P ACTION: 30-Day Notice of Information (1) Type of Information Collection: Collection under Review: Semi-annual Extension of a currently approved DEPARTMENT OF JUSTICE Progress Report for the Technical collection. Assistance Program. (2) Title of the Form/Collection: Semi- [OMB Number 1122–NEW] annual Progress Report for Technical The Department of Justice, Office on Assistance Program. Office on Violence Against Women: Violence Against Women (OVW) will be (3) Agency form number, if any, and Agency Information Collection submitting the following information the applicable component of the Activities: New Collection collection request to the Office of Department of Justice sponsoring the ACTION: 30-Day Notice of Information Management and Budget (OMB) for collection: Form Number: 1122–0017. Collection Under Review: Semi-Annual review and approval in accordance with U.S. Department of Justice, Office on Progress Report for Grantees from the the Paperwork Reduction Act of 1995. Violence Against Women. Engaging Men and Youth Program. The proposed information collection is (4) Affected public who will be asked published to obtain comments from the or required to respond, as well as a brief The Department of Justice, Office on public and affected agencies. This abstract: The affected public includes Violence Against Women (OVW), will proposed information collection was the 100 programs providing technical be submitting the following information previously published in the Federal assistance as recipients under the collection request to the Office of Register Volume 75, Number 99, page Technical Assistance Program. Management and Budget (OMB) for 28818–28819 on May 24, 2010, allowing (5) An estimate of the total number of review and approval in accordance with for a 60-day comment period. respondents and the amount of time the Paperwork Reduction Act of 1995. The purpose of this notice is to allow estimated for an average respondent to The proposed information collection is for an additional 30 days for public respond/reply: It is estimated that it will published to obtain comments from the comment until August 19, 2010. This take the 100 respondents (Technical public and affected agencies. This process is conducted in accordance with Assistance providers) approximately proposed information collection was 5 CFR 1320.10. one hour to complete a semi-annual previously published in the Federal Written comments and/or suggestions progress report twice a year. The semi- Register Volume 75, Number 95, page regarding the items contained in this annual progress report for the Technical 27818–27819, on May 18, 2010, notice, especially the estimated public Assistance Program is divided into allowing for a 60-day comment period. burden and associated response time, sections that pertain to the different The purpose of this notice is to allow should be directed to: The Office of types of activities in which Technical for an additional 30 days for public Management and Budget, Office of Assistance Providers are engaged. The comment until August 19, 2010. This Information and Regulatory Affairs, primary purpose of the OVW Technical process is conducted in accordance with Attention Department of Justice Desk Assistance Program is to provide direct 5 CFR 1320.10.

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Written comments and/or suggestions (5) An estimate of the total number of The purpose of this notice is to allow regarding the items contained in this respondents and the amount of time for an additional 30 days for public notice, especially the estimated public estimated for an average respondent to comment until August 19, 2010. This burden and associated response time, respond/reply: It is estimated that it will process is conducted in accordance with should be directed to the Office of take the approximately 35 respondents 5 CFR 1320.10. Management and Budget, Office of (grantees from the Engaging Men and Written comments and/or suggestions Information and Regulatory Affairs, Youth Program) approximately one hour regarding the items contained in this Attention Department of Justice Desk to complete a semi-annual progress notice, especially the estimated public Officer, Washington, DC 20503. report. The semi-annual progress report burden and associated response time, Additionally, comments may be is divided into sections that pertain to should be directed to the Office of submitted to OMB via facsimile to (202) the different types of activities in which Management and Budget, Office of 395–5806. grantees may engage. An Engaging Men Information and Regulatory Affairs, Written comments and suggestions and Youth Program grantee will only be Attention Department of Justice Desk from the public and affected agencies required to complete the sections of the Officer, Washington, DC 20503. concerning the proposed collection of form that pertain to its own specific Additionally, comments may be information are encouraged. Your activities. submitted to OMB via facsimile to (202) comments should address one or more (6) An estimate of the total public 395–5806. of the following four points: burden (in hours) associated with the Written comments and suggestions (1) Evaluate whether the proposed collection: The total annual hour burden from the public and affected agencies collection of information is necessary to complete the data collection forms is concerning the proposed collection of for the proper performance of the 70 hours, that is 35 grantees completing information are encouraged. Your functions of the agency, including a form twice a year with an estimated comments should address one or more whether the information will have completion time for the form being one of the following four points: practical utility; hour. (1) Evaluate whether the proposed (2) Evaluate the accuracy of the If additional information is required collection of information is necessary agency’s estimate of the burden of the contact: Lynn Bryant, Department for the proper performance of the proposed collection of information, Clearance Officer, United States functions of the agency, including including the validity of the Department of Justice, Justice whether the information will have methodology and assumptions used; Management Division, Policy and practical utility; (3) Enhance the quality, utility, and Planning Staff, Two Constitution (2) Evaluate the accuracy of the clarity of the information to be Square, 145 N Street, NE., Suite 2E–502, agency’s estimate of the burden of the collected; and Washington, DC 20530. proposed collection of information, including the validity of the (4) Minimize the burden of the Dated: July 15, 2010. methodology and assumptions used; collection of information on those who Lynn Bryant, (3) Enhance the quality, utility, and are to respond, including through the Department Clearance Officer, PRA, United clarity of the information to be use of appropriate automated, States Department of Justice. collected; and electronic, mechanical, or other [FR Doc. 2010–17690 Filed 7–19–10; 8:45 am] (4) Minimize the burden of the technological collection techniques or BILLING CODE 4410–FX–P collection of information on those who other forms of information technology, are to respond, including through the e.g., permitting electronic submission of use of appropriate automated, responses. DEPARTMENT OF JUSTICE electronic, mechanical, or other Overview of This Information [OMB Number 1122–NEW] technological collection techniques or Collection other forms of information technology, Office on Violence Against Women; e.g., permitting electronic submission of (1) Type of Information Collection: Agency Information Collection responses. New collection. Activities: New Collection (2) Title of the Form/Collection: Semi- Overview of This Information Annual Progress Report for Grantees ACTION: 30-Day Notice of Information Collection from the Engaging Men and Youth Collection Under Review: Semi-Annual (1) Type of Information Collection: Program. Progress Report for Grantees from the New collection. (3) Agency form number, if any, and Court Training and Improvements (2) Title of the Form/Collection: Semi- the applicable component of the Program. Annual Progress Report for Grantees Department of Justice sponsoring the from the Court Training and collection: Form Number: 1122–XXXX. The Department of Justice, Office on Improvements Program. U.S. Department of Justice, Office on Violence Against Women (OVW), will (3) Agency form number, if any, and Violence Against Women. be submitting the following information the applicable component of the (4) Affected public who will be asked collection request to the Office of Department of Justice sponsoring the or required to respond, as well as a brief Management and Budget (OMB) for collection: Form Number: 1122–XXXX. abstract: The affected public includes review and approval in accordance with U.S. Department of Justice, Office on the approximately 35 grantees of the the Paperwork Reduction Act of 1995. Violence Against Women. Engaging Men and Youth Program. The The proposed information collection is (4) Affected public who will be asked grant program is designed to support published to obtain comments from the or required to respond, as well as a brief projects fund projects that develop or public and affected agencies. This abstract: The affected public includes enhance new or existing efforts to proposed information collection was the approximately 23 grantees of the engage men and youth in preventing previously published in the Federal Court Training and Improvements crimes of violence against women with Register Volume 75 Number 95, page Program. The grant program creates a the goal of developing mutually 27818, on May 18, 2010, allowing for a unique opportunity for Federal, State, respectful, nonviolent relationships. 60-day comment period. Territorial, and Tribal courts or court-

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based programs to significantly improve DEPARTMENT OF JUSTICE evaluation of a comprehensive, court responses to sexual assault, corporate-wide Environmental domestic violence, dating violence, and Notice of Lodging of Consent Decree Management System (EMS) at all of its stalking cases utilizing proven Under the Clean Air Act; Clean Water facilities. McWane has already specialized court processes to ensure Act; Resource Conservation and undertaken corrective measures to victim safety and offender Recovery Act; Safe Drinking Water resolve all the violations alleged in the accountability. The program challenges Act; Toxic Substances Control Act; Complaint, at a cost of over $7.6 and the Reporting Requirements of the courts and court-based programs to million. The proposed Consent Decree Emergency Planning and Community work with their communities to develop resolves only the specific violations Right-To-Know Act and the specialized practices and educational alleged in the Complaint. Comprehensive Environmental The Department of Justice will receive resources that will result in significantly Response, Compensation, and Liability improved responses to sexual assault, for a period of thirty (30) days from the Act date of this publication comments domestic violence, dating violence and relating to the proposed Consent Decree. stalking cases, ensure offender Notice is hereby given that on July 14, Comments should be addressed to the accountability, and promote informed 2010, a proposed Consent Decree in Assistant Attorney General, judicial decision making. United States et al. v. McWane, Inc., Civil Action No. CV–10–JEO–1902–S Environment and Natural Resources (5) An estimate of the total number of was lodged with the United States Division, and either e-mailed to respondents and the amount of time District Court for the Northern District [email protected] or estimated for an average respondent to of Alabama. mailed to P.O. Box 7611, U.S. respond/reply: It is estimated that it will In this action the United States sought Department of Justice, Washington, DC take the approximately 23 respondents injunctive relief and civil penalties for 20044–7611, and should refer to United (grantees from the Court Training and violations of the Clean Air Act, 42 States v. McWane, Inc., D.J. Ref. 90–5– Improvements Program) approximately U.S.C. 7401 to 7671q (‘‘CAA’’); Clean 1–1–08282. one hour to complete a semi-annual Water Act, 33 U.S.C. 1311 to 1387 The Consent Decree may be examined progress report. The semi-annual (‘‘CWA’’); Resource Conservation and at the Office of the United States progress report is divided into sections Recovery Act (‘‘RCRA’’), 42 U.S.C. 6901 Attorney for the Northern District of that pertain to the different types of to 6992k; Safe Drinking Water Act Alabama, 1801 4th Avenue North, activities in which grantees may engage. (‘‘SDWA’’), 42 U.S.C. 300f to 300j-26; Birmingham, Alabama 35203–2101, and A Court Training and Improvements Toxic Substances Control Act (‘‘TSCA’’), at the following U.S. EPA Regions: Program grantee will only be required to 15 U.S.C. 2601 to 2692, and the Region 1 (CT, MA, ME, NH, RI, VT), complete the sections of the form that reporting requirements of the Environmental Protection Agency, 5 Post Office Square—Suite 100, Boston, pertain to its own specific activities. Emergency Planning and Community Right-to-Know Act, 42 U.S.C. 11001 to MA 02109–3912, Phone: (617) 918– (6) An estimate of the total public 11050 (‘‘EPCRA’’); Comprehensive 1111, Fax: (617) 918–1809, Toll free burden (in hours) associated with the Environmental Response, within Region 1: (888) 372–7341. collection: The total annual hour burden Compensation, and Liability Act Region 2 (NJ, NY, PR, VI), to complete the data collection forms is (‘‘CERCLA’’), 42 U.S.C. 9601 et seq., Environmental Protection Agency, 290 46 hours, that is 23 grantees completing together with their implementing Broadway, New York, NY 10007–1866, a form twice a year with an estimated regulations and permits, at twenty-eight Phone: (212) 637–3000, Fax: (212) 637– completion time for the form being one of McWane’s facilities in fourteen states. 3526. hour. McWane, Inc. is a national company Region 3 (DC, DE, MD, PA, VA, WV), If additional information is required operating iron foundries, brass Environmental Protection Agency, 1650 contact: Lynn Bryant, Department foundries, and various valve and tank Arch Street, Philadelphia, PA 19103– Clearance Officer, United States manufacturing facilities. McWane’s 2029, Phone: (215) 814–5000, Fax: (215) Department of Justice, Justice major plants by industry include four 814–5103, Toll free: (800) 438–2474. Region 4 (AL, FL, GA, KY, MS, NC, Management Division, Policy and pipe plants, four valve and hydrant SC, TN), Environmental Protection Planning Staff, Two Constitution plants, seven soil pipe and utility Agency, Atlanta Federal Center, 61 Square, 145 N Street, NE., Suite 2E–502, fittings plants, seven tank Forsyth Street, SW., Atlanta, GA 30303– Washington, DC 20530. manufacturing plants and one fire extinguisher plant. Most of these 3104, Phone: (404) 562–9900, Fax: (404) Dated: July 15, 2010. facilities operate under trade names, 562–8174, Toll free: (800) 241–1754. Lynn Bryant, including Tyler Pipe, Manchester Tank, Region 5 (IL, IN, MI, MN, OH, WI), Department Clearance Officer, PRA, United Pacific States, Kennedy Valve, M & H Environmental Protection Agency, 77 States Department of Justice. Valve, Clow, Ransom Industries, Union West Jackson Boulevard, Chicago, IL [FR Doc. 2010–17688 Filed 7–19–10; 8:45 am] Foundry, Empire Coke Company, 60604–3507, Phone: (312) 353–2000 Fax: (312) 353–4135, Toll free within BILLING CODE 4410–FX–P Amerex Corporation, Atlantic States, and Anaco. The Alabama Department of Region 5: (800) 621–8431 Environmental Management and the Region 6 (AR, LA, NM, OK, TX), 1445 State of Iowa are co-plaintiffs in this Ross Avenue, Dallas, TX 75202–2733, action. Phone: (214) 665–2200, Fax: (214) 665– Under the proposed Consent Decree, 7113, Toll free within Region 6: (800) McWane will pay a civil penalty of 887–6063). $4,000,000 (to be divided among the Region 7 (IA, KS, MO, NE), United States, Alabama and Iowa), Environmental Protection Agency, 901 implement a slate of Supplemental North 5th Street, Kansas City, KS 66101, Environmental Projects at a cost of Phone: (913) 551–7003, Toll free: (800) $9,154,050, and complete the final 223–0425.

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Region 8 (CO, MT, ND, SD, UT,WY), N.J.S.A. 26:2C–1 et seq., at the Edgeboro United States v. City of Tacoma, Civ. A. Environmental Protection Agency, 1595 landfill in East Brunswick, New Jersey. No. 3:10–cv–05497, was lodged with the Wynkoop St., Denver, CO 80202–1129, To resolve the United States’ claims, United States Court for the Western Phone: (303) 312–6312, Fax: (303) 312– the Defendants will pay a penalty of District of Washington in Tacoma. 6339. $750,000 to the United States and New In this action, the United States Region 9 (AZ, CA, HI, NV), Jersey, and shall upgrade the Edgeboro sought penalties pursuant to Section Environmental Protection Agency, 75 Landfill Gas Collection and Control 608(c) of the Clean Air Act, 42 U.S.C. Hawthorne Street, San Francisco, CA System, and operate that system in 7671g, against the City of Tacoma’s 94105, Phone: (415) 947–8000, (866) compliance with regulations Public Works Department. The EPA–WEST (toll free in Region 9), Fax: promulgated pursuant to the Clean Air Complaint alleges that Defendant failed (415) 947–3553. Act. to comply with regulations issued Region 10 (AK, ID, OR, WA), The Department of Justice will receive pursuant to Section 608(c) of the CAA— Environmental Protection Agency, 1200 for a period of thirty (30) days from the 40 CFR Part 82, Subpart F—that makes Sixth Avenue, Suite 900, Seattle, WA date of this publication comments the knowing venting or release of Class 98101, Phone: (206) 553–1200, Fax: relating to the Consent Decree. I or II refrigerants into the environment (206) 553–2955, Toll free: (800) 424– Comments should be addressed to the during the disposal of a refrigerant- 4372. Assistant Attorney General, containing appliance unlawful. The EPA Headquarters: Office of Civil Environment and Natural Resources Complaint alleges the City of Tacoma, Enforcement, Office of Enforcement and Division, and either e-mailed to through its Solid Waste Management Compliance Assurance, 2100 [email protected] or Division that is internal to the Public Pennsylvania Avenue, NW., Washington mailed to P.O. Box 7611, U.S. Works Department, illegally released DC 20460, (202) 564–2220. Department of Justice, Washington, DC regulated refrigerant into the During the public comment period, 20044–7611, and should refer to either: environment for almost three years the Consent Decree may also be United States v. Edgeboro Disposal, Inc., dating from October 2004 to August examined on the following Department et al., Civil Action No. 3:10–cv–03541– 2007 at its municipal landfill. of Justice Web site, at http:// FLW–TJB, or D.J. Ref. 90–5–2–1–09122. Pursuant to the proposed Consent www.usdoj.gov/enrd/ The Consent Decree may be examined at Decree, Defendant will pay to the Consent_Decrees.html. A copy of the the Office of the United States Attorney, United States a civil penalty of $224,684 Consent Decree may also be obtained by District of New Jersey, 970 Broad Street, and perform a Supplemental mail from the Consent Decree Library, Room 502, Newark, New Jersey 07102, Environmental Project that will cost P.O. Box 7611, U.S. Department of and at the United States Environmental approximately $269,783. The SEP Justice, Washington, DC 20044–7611 or Protection Agency, 290 Broadway New consists of the City purchasing a by faxing or e-mailing a request to Tonia York, New York 10007–1866. During the hydraulic launch assist refuse collection Fleetwood ([email protected]), public comment period, the Consent vehicle, purchasing a pluggable hybrid fax no. (202) 514–0097, phone Decree may also be examined on the electric terminal truck to replace one of confirmation number (202) 514–1547. In following Department of Justice Web the City’s diesel yard tractors, and requesting a copy from the Consent site, http://www.usdoj.gov/enrd/ retrofitting 10 of its municipal diesel Decree Library, please enclose a check Consent_Decrees.html. A copy of the vehicles with diesel particulate filters. in the amount of $33.70 (25 cents per Consent Decree may also be obtained by The hydraulic launch assist refuse page reproduction cost) payable to the mail from the Consent Decree Library, collection vehicle is designed to be U.S. Treasury or, if by e-mail or fax, P.O. Box 7611, U.S. Department of more efficient by using energy created forward a check in that amount to the Justice, Washington, DC 20044–7611 or during braking as well as increase fuel Consent Decree Library at the stated by faxing or e-mailing a request to Tonia economy and reduce particulate address. Fleetwood ([email protected]), emissions typically emitted from fax no. (202) 514–0097, phone traditional refuse collection vehicles. Maureen Katz, confirmation number (202) 514–1547. In The pluggable hybrid electric terminal Assistant Section Chief Environmental requesting a copy from the Consent truck is designed to decrease diesel fuel Enforcement Section, Environment and Decree Library, please enclose a check, use and reduce emissions as well as Natural Resources Division. payable to the U.S. Treasury, in the increase the City’s fuel economy. The [FR Doc. 2010–17600 Filed 7–19–10; 8:45 am] amount of $15.50 (25 cents per page diesel particulate filters are aimed to BILLING CODE 4410–15–P reproduction cost), or, if by e-mail or reduce particulate matter emissions as fax, forward a check in the applicable well as carbon monoxide and hydrocarbons emissions. Overall, these DEPARTMENT OF JUSTICE amount to the Consent Decree Library at the stated address. projects are intended to help improve air quality in and around the City’s Notice of Lodging of Consent Decree Maureen Katz, Under the Clean Air Act municipal landfill by reducing smog- Assistant Chief, Environmental Enforcement forming chemicals such as ground level Notice is hereby given that on July 13, Section, Environment and Natural Resources ozone, particulates, and nitrous oxides 2010, a proposed Consent Decree in Division. (as well as carbon dioxide). United States v. Edgeboro Disposal, Inc., [FR Doc. 2010–17601 Filed 7–19–10; 8:45 am] The Department of Justice will receive et al., Civil Action No. 3:10–cv–03541– BILLING CODE 4410–15–P for a period of thirty (30) days from the FLW–TJB, was filed with the United date of this publication comments States District Court for the District of relating to the Consent Decree. New Jersey. DEPARTMENT OF JUSTICE Comments should be addressed to the In this action, the United States Notice of Lodging of Consent Decree Assistant Attorney General, sought penalties and injunctive relief for Pursuant to the Clean Air Act Environment and Natural Resources the Defendants’ violations of the Clean Division, and either e-mailed to Air Act, 42 U.S.C. 7411 et seq., and the Notice is hereby given that on July 14, [email protected] or New Jersey Air Pollution Control Act, 2010, a proposed Consent Decree in mailed to P.O. Box 7611, U.S.

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Department of Justice, Washington, DC Federally enforceable State DEPARTMENT OF JUSTICE 20044–7611, and should refer to United Implementation Plan (SIP) submitted to States v. City of Tacoma, Civ. A. No. EPA by the State of Arizona pursuant to Notice of Lodging of Consent Decree 3:10–cv–05497 (Western District of Section 110 of the Act, 42 U.S.C. 7410. Pursuant to the Clean Air Act Washington), Department of Justice Case The proposed Consent Decree Notice is hereby given that on July 14, Number 90–5–2–1–09582. During the public comment period, provides for the payment of $105,610 in 2010, a proposed Consent Decree in the Consent Decree may be examined at civil penalties. The Consent Decree also United States v. City of Tacoma, Civ. A. the Office of the United States Attorney, includes measures designed to abate No. 3:10–cv–05497, was lodged with the Western District of Washington, 700 fugitive dust emissions; employing a United States Court for the Western Stewart Street, Suite 5220, Seattle, WA dust control monitor at sites with 1 acre District of Washington in Tacoma. In this action, the United States 98101–1271. The Consent Decree may or more of surface; and requiring dust sought penalties pursuant to Section also be examined on the following control training for employees and 608(c) of the Clean Air Act, 42 U.S.C. Department of Justice Web site, http:// certain employees of sub-contractors 7671g, against the City of Tacoma’s www.usdoj.gov/enrd/ whose job responsibilities involve dust Public Works Department. The Consent_Decrees.html . A copy of the generating operations. Consent Decree may also be obtained by Complaint alleges that Defendant failed The Department of Justice will receive to comply with regulations issued mail from the Consent Decree Library, for a period of thirty (30) days from the P.O. Box 7611, U.S. Department of pursuant to Section 608(c) of the CAA— date of the publication comments Justice, Washington, DC 20044–7611 or 40 CFR Part 82, Subpart F—that makes relating to the Consent Decree. by faxing or e-mailing a request to Tonia the knowing venting or release of Class Fleetwood ([email protected]), Comments should be addressed to the I or II refrigerants into the environment fax no. (202) 514–0097, phone Assistant Attorney General, during the disposal of a refrigerant- confirmation number (202) 514–1547. In Environment and Natural Resources containing appliance unlawful. The requesting a copy from the Consent Division, P.O. Box 7611, U.S. Complaint alleges the City of Tacoma, Decree Library, please enclose a check Department of Justice, Washington, DC through its Solid Waste Management in the amount of $11.00 (25 cents per 20044–7611, or submitted to the Division that is internal to the Public page reproduction cost) payable to the following e-mail address: pubcomment- Works Department, illegally released U.S. Treasury. [email protected], and should refer to regulated refrigerant into the United States v. Summit Builders environment for almost three years Maureen Katz, Construction Co., D.J. Ref. 90–5–2–1– dating from October 2004 to August Assistant Chief, Environmental Enforcement 09616. 2007 at its municipal landfill. Section, Environment and Natural Resources Pursuant to the proposed Consent Division. The Consent Decree may be examined Decree, Defendant will pay to the [FR Doc. 2010–17604 Filed 7–19–10; 8:45 am] at the Office of the United States United States a civil penalty of $224,684 BILLING CODE 4410–15–P Attorney for the District of Arizona, and perform a Supplemental Two Renaissance Square, 40 N. Central Environmental Project that will cost Avenue, Suite 1200, Phoenix, Arizona approximately $269,783. The SEP DEPARTMENT OF JUSTICE 85004–4408, and at U.S. Environmental consists of the City purchasing a Notice of Lodging of Consent Decree Protection Agency, Region 9, Office of hydraulic launch assist refuse collection Under the Clean Air Act Regional Counsel, 75 Hawthorne Street, vehicle, purchasing a pluggable hybrid San Francisco, California 94105. During electric terminal truck to replace one of Pursuant to 28 CFR 50.7, notice is the public comment period, the Consent the City’s diesel yard tractors, and hereby given that on July 12, 2010, a Decree may also be examined on the retrofitting 10 of its municipal diesel proposed consent decree in United following Department of Justice Web vehicles with diesel particulate filters. States v. Summit Builders Construction site: http://www.usdoj.gov/enrd/ The hydraulic launch assist refuse Co., Civil No. CIV–10–1461–PHX–JAT, Consent_Decrees.html. A copy of the collection vehicle is designed to be was lodged with the United States Consent Decree may also be obtained by more efficient by using energy created District Court for the District of Arizona. mail from the Consent Decree Library, during braking as well as increase fuel This Consent Decree will address P.O. Box 7611, U.S. Department of economy and reduce particulate claims asserted by the United States in emissions typically emitted from Justice, Washington, DC 20044–7611, or a Complaint filed contemporaneously traditional refuse collection vehicles. by faxing or e-mailing a request to Tonia with the Consent Decree against Summit The pluggable hybrid electric terminal Fleetwood ([email protected]), Builders Construction Co. (Summit) for truck is designed to decrease diesel fuel civil penalties and injunctive relief fax number (202) 514–0097, phone use and reduce emissions as well as under Section 113(b) of the Clean Air confirmation number (202) 514–1547. In increase the City’s fuel economy. The Act (the Act), 42 U.S.C. 7413(b), for requesting a copy from the Consent diesel particulate filters are aimed to failure to install suitable trackout Decree Library, please enclose a check reduce particulate matter emissions as control devices and failure to in the amount of $4.75 (.25 cents per well as carbon monoxide and immediately clean up trackout while page reproduction cost) payable to the hydrocarbons emissions. Overall, these conducting earthmoving, failure to U.S. Treasury. projects are intended to help improve operate a water application system Maureen Katz, air quality in and around the City’s while conducting earthmoving, and municipal landfill by reducing smog- failure to implement approved dust Assistant Chief, Environmental Enforcement forming chemicals such as ground level Section, Environment and Natural Resources control measures in violation of Rule 2 ozone, particulates, and nitrous oxides Division. Regulation 1, and Rule 310 of (as well as carbon dioxide). Regulation 3 of the Maricopa County Air [FR Doc. 2010–17603 Filed 7–19–10; 8:45 am] The Department of Justice will receive Quality Department (MCAQD) which BILLING CODE 4410–15–P for a period of thirty (30) days from the are part of the Federally approved and date of this publication comments

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relating to the Consent Decree. public and affected agencies. Comments Abstract: 21 U.S.C. 826 and 21 CFR Comments should be addressed to the are encouraged and will be accepted 1303.12 and 1315.32 require that U.S. Assistant Attorney General, until September 20, 2010. This process companies who desire to use any basic Environment and Natural Resources is conducted in accordance with 5 CFR class of controlled substances listed in Division, and either e-mailed to 1320.10. Schedule I or II or the List I chemicals [email protected] or If you have comments, especially on ephedrine, pseudoephedrine, and mailed to P.O. Box 7611, U.S. the estimated public burden or phenylpropanolamine for purposes of Department of Justice, Washington, DC associated response time, suggestions, manufacturing during the next calendar 20044–7611, and should refer to United or need a copy of the proposed year shall apply on DEA Form 250 for States v. City of Tacoma, Civ. A. No. information collection instrument with procurement quota for such class or List 3:10-cv-05497 (Western District of instructions or additional information, I chemical. Washington), Department of Justice Case please contact Mark W. Caverly, Chief, (5) An estimate of the total number of Number 90–5–2–1–09582. Liaison and Policy Section, Office of respondents and the amount of time During the public comment period, Diversion Control, Drug Enforcement estimated for an average respondent to the Consent Decree may be examined at Administration, 8701 Morrissette Drive, respond: DEA estimates that each form the Office of the United States Attorney, Springfield, VA 22152. takes 1 hour to complete. DEA estimates Western District of Washington, 700 Written comments and suggestions that 420 individual respondents will Stewart Street, Suite 5220, Seattle, WA from the public and affected agencies respond to this form. DEA estimates that 98101–1271. The Consent Decree may concerning the proposed collection of 2,348 responses are received annually. also be examined on the following information are encouraged. Your (6) An estimate of the total public Department of Justice Web site, http:// comments should address one or more burden (in hours) associated with the www.usdoj.gov/enrd/ of the following four points: collection: The total public burden for _ this collection is 2,348 hours annually. Consent Decrees.html. A copy of the • Evaluate whether the proposed If additional information is required Consent Decree may also be obtained by collection of information is necessary mail from the Consent Decree Library, contact: Lynn Bryant, Department for the proper performance of the Clearance Officer, United States P.O. Box 7611, U.S. Department of functions of the agency, including Justice, Washington, DC 20044–7611 or Department of Justice, Justice whether the information will have Management Division, Policy and by faxing or e-mailing a request to Tonia practical utility; Fleetwood ([email protected]), Planning Staff, Two Constitution • Evaluate the accuracy of the fax no. (202) 514–0097, phone Square, 145 N Street, NE., Suite 2E–502, agencies estimate of the burden of the confirmation number (202) 514–1547. In Washington, DC 20530 proposed collection of information, requesting a copy from the Consent including the validity of the Dated: July 15, 2010. Decree Library, please enclose a check methodology and assumptions used; Lynn Bryant, in the amount of $11.00 (25 cents per • Enhance the quality, utility, and Department Clearance Officer, PRA, United page reproduction cost) payable to the States Department of Justice. U.S. Treasury. clarity of the information to be collected; and [FR Doc. 2010–17694 Filed 7–19–10; 8:45 am] Maureen Katz, • Minimize the burden of the BILLING CODE 4410–09–P Assistant Chief, Environmental Enforcement collection of information on those who Section, Environment and Natural Resources are to respond, including through the Division. use of appropriate automated, DEPARTMENT OF JUSTICE [FR Doc. 2010–17602 Filed 7–19–10; 8:45 am] electronic, mechanical, or other Drug Enforcement Administration BILLING CODE 4410–15–P technological collection techniques or other forms of information technology, [OMB Number 1117–0006] e.g., permitting electronic submission of DEPARTMENT OF JUSTICE responses. Agency Information Collection Activities: Proposed Collection; Drug Enforcement Administration Overview of Information Collection Comments Requested: Application for [OMB Number 1117–0008] 1117–0008 Individual Manufacturing Quota for a (1) Type of Information Collection: Basic Class of Controlled Substance Agency Information Collection Extension of a currently approved and for Ephedrine, Pseudoephedrine, Activities: Proposed Collection; collection. and Phenylpropanolamine Comments Requested: Application for (2) Title of the Form/Collection: ACTION: 60-Day Notice of Information Procurement Quota for Controlled Application for Procurement Quota for Collection Under Review. Substances and Ephedrine, Controlled Substances and Ephedrine, Pseudoephedrine, and Pseudoephedrine, and The Department of Justice (DOJ), Drug Phenylpropanolamine—DEA Form 250 Phenylpropanolamine (DEA Form 250). Enforcement Administration (DEA), will (3) Agency form number, if any, and ACTION: 60-Day Notice of Information be submitting the following information Collection Under Review. the applicable component of the collection request to the Office of Department of Justice sponsoring the Management and Budget (OMB) for The Department of Justice (DOJ), Drug collection: Form Number: DEA Form review and approval in accordance with Enforcement Administration (DEA), will 250, Office of Diversion Control, Drug the Paperwork Reduction Act of 1995. be submitting the following information Enforcement Administration, The proposed information collection is collection request to the Office of Department of Justice. published to obtain comments from the Management and Budget (OMB) for (4) Affected public who will be asked public and affected agencies. Comments review and approval in accordance with or required to respond, as well as a brief are encouraged and will be accepted the Paperwork Reduction Act of 1995. abstract: until September 20, 2010. This process The proposed information collection is Primary: Business or other for-profit. is conducted in accordance with 5 CFR published to obtain comments from the Other: None. 1320.10.

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If you have comments, especially on such class, or who desires to District Court for the Southern District the estimated public burden or manufacture using the List I chemicals of New York. Copies of any of these associated response time, suggestions, ephedrine, pseudoephedrine, or materials may be obtained upon request or need a copy of the proposed phenylpropanolamine, must apply on and payment of a copying fee. information collection instrument with DEA Form 189 for a manufacturing Patricia A. Brink, instructions or additional information, quota for such quantity of such class or please contact Mark W. Caverly, Chief, List I chemical. Deputy Director of Operations. Liaison and Policy Section, Office of (5) An estimate of the total number of In the United States District Court for Diversion Control, Drug Enforcement respondents and the amount of time the Southern District of New York estimated for an average respondent to Administration, 8701 Morrissette Drive, United States of America, Plaintiff, v. Springfield, VA 22152. respond: DEA estimates that each form Keyspan Corporation, Defendant. Written comments and suggestions takes 0.5 hours (30 minutes) to Civil Action No.: 1:10–cv–01415–WHP from the public and affected agencies complete. In total, 31 firms submit 468 Hon. William H. Pauley III concerning the proposed collection of responses, with each response taking 0.5 information are encouraged. Your hours (30 minutes) to complete. This Plaintiff United States’s Response to comments should address one or more results in a total public burden of 234 Public Comments of the following four points: hours annually. • Pursuant to the requirements of the Evaluate whether the proposed (6) An estimate of the total public Antitrust Procedures and Penalties Act, collection of information is necessary burden (in hours) associated with the 15 U.S.C. 16(b)–(h) (‘‘Tunney Act’’), the for the proper performance of the collection: In total, 31 firms submit 468 United States hereby responds to the functions of the agency, including responses, with each response taking 0.5 public comments received regarding the whether the information will have hours (30 minutes) to complete. This proposed Final Judgment in this case. practical utility; results in a total public burden of 234 • After careful consideration, the United Evaluate the accuracy of the hours annually. States continues to believe that the relief If additional information is required agencies estimate of the burden of the sought in the proposed Final Judgment contact: Lynn Bryant, Department proposed collection of information, will provide an effective and Clearance Officer, United States including the validity of the appropriate remedy for the antitrust Department of Justice, Justice methodology and assumptions used; violation alleged in the Complaint. The • Enhance the quality, utility, and Management Division, Policy and United States will move the Court for clarity of the information to be Planning Staff, Two Constitution entry of the proposed Final Judgment collected; and Square, 145 N Street, NW., Suite 2E– after the public comments and this • Minimize the burden of the 502, Washington, DC 20530. Response have been published in the collection of information on those who July 15, 2010. Federal Register, pursuant to 15 U.S.C. are to respond, including through the Lynn Bryant, 16(d).1 use of appropriate automated, The United States brought this electronic, mechanical, or other Department Clearance Officer, PRA, United States Department of Justice. lawsuit against Defendant KeySpan technological collection techniques or Corporation (‘‘KeySpan’’)to remedy a other forms of information technology, [FR Doc. 2010–17696 Filed 7–19–10; 8:45 am] violation of Section 1 of the Sherman e.g., permitting electronic submission of BILLING CODE 4410–09–P Act, 15 U.S.C. 1. On January 18, 2006, responses. KeySpan entered into an agreement in Overview of Information Collection DEPARTMENT OF JUSTICE the form of a financial derivative (the 1117–0006: ‘‘KeySpan Swap’’) that essentially (1) Type of Information Collection: Antitrust Division Extension of a currently approved transferred to KeySpan, the largest supplier of electricity generating collection. United States v. Keyspan Corporation; (2) Title of the Form/Collection: capacity in the New York City market, Public Comments and Response on the capacity of its largest competitor. Application for Individual Proposed Final Judgment Manufacturing Quota for a Basic Class The KeySpan Swap ensured that of Controlled Substance and for Pursuant to the Antitrust Procedures KeySpan would withhold substantial Ephedrine, Pseudoephedrine, and and Penalties Act, 15 U.S.C. 16(b)–(h), output from the capacity market, a Phenylpropanolamine (DEA Form 189). the United States hereby publishes market that was created to ensure the (3) Agency form number, if any, and below the comments received on the supply of sufficient generation capacity the applicable component of the proposed Final Judgment in United for the millions of New York City Department of Justice sponsoring the States v. Keyspan Corporation. Civil consumers of electricity. The likely collection: Form Number: DEA Form Action No. 1:10–CV–01415–WHP, effect of this agreement was to increase 189, Office of Diversion Control, Drug which were filed in the United States capacity prices for the retail electricity Enforcement Administration, District Court for the Southern District suppliers that must purchase capacity Department of Justice. of New York on June 11, 2010, together and, in turn, to increase the prices (4) Affected public who will be asked with the response of the United States consumers pay for electricity. or required to respond, as well as a brief to the comments. Simultaneously with the filing of the abstract: Copies of the comments and the Complaint, the United States filed a Primary: Business or other for-profit. response are available for inspection at proposed Final Judgment (to be Other: None. the Department of Justice Antitrust modified pursuant to the Court’s Abstract: 21 U.S.C. 826 and 21 CFR Division, 450 Fifth Street, NW., Suite direction, see, supra, n. 1) and a 1303.22 and 1315.22 require that any 1010, Washington, DC 20530 person who is registered to manufacture (telephone: 202–514–2481), on the 1 The United States and KeySpan will submit an amended proposed Final Judgment that takes any basic class of controlled substances Department of Justice’s Web site at account of the retention of jurisdiction concerns listed in Schedule I or II and who http://www.justice.gov/atr, and at the expressed by the Court with respect to Section IV desires to manufacture a quantity of Office of the Clerk of the United States of the proposed Final Judgment.

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Stipulation signed by the United States required to purchase capacity in an C. The Anticompetitive Agreement and KeySpan consenting to the entry of amount equal to their expected peak As discussed more fully in the CIS, in the proposed Final Judgment after energy demand plus a share of reserve the tight market conditions that existed compliance with the requirements of the capacity. These payments for capacity from June 2003 through December 2005, Tunney Act. Pursuant to those assure that retail electric companies do almost all capacity in the New York City requirements, the United States filed a not use more electricity than the system market was needed to meet demand, Competitive Impact Statement (‘‘CIS’’) in can deliver and encourage electric and KeySpan could sell nearly all of its this Court on February 23, 2010; generating companies to build new capacity into the market even while published the proposed Final Judgment facilities as needed. Because bidding at its cap. KeySpan did so, and and CIS in the Federal Register on transmission constraints limit the the market cleared at the price March 4, 2010, see United States v. amount of energy that can be imported established by the cap, with only a KeySpan corporation, 75 FR 9946–01, into the New York City area from the small fraction of KeySpan’s capacity 2010 WL 723203; and published power grid, the New York Independent remaining unsold. summaries of the terms of the proposed System Operator (‘‘NYISO’’) requires Those tight conditions in the NYC Final Judgment and CIS, together with Capacity Market were expected to end directions for the submission of written retail providers of electricity to consumers in New York City to in 2006 due to the entry of comments relating to the proposed Final approximately 1,000MW of new Judgment, in The Washington Post for purchase 80% of their capacity from generators in that region. The New York generating capacity, with excess supply seven days beginning on March 10, 2010 of capacity forecast to last into 2009. City Installed Capacity (‘‘NYC Capacity’’) and ending on March 16, 2010 and in The increased supply meant KeySpan Market constitutes a relevant geographic The New York Post beginning on March could no longer be confident that ‘‘bid 11, 2010 and ending on March 17, 2010. and product market. the cap’’ would remain its most The 60-day period for public comments The price for installed capacity in profitable strategy during the 2006–2009 ended on May 16, 2010. The United New York City has been set through period. While bidding the cap would States received seven comments, as auctions administered by the NYISO. keep market prices high, doing so also described below, which are attached The NYISO organizes the auctions to would entail withholding sales of 2 hereto. serve two distinct seasonal periods, substantially more capacity. The 1. Background summer (May though October) and additional withholding could reduce winter (November through April). For KeySpan’s revenues by as much as $90 A. The United States’s Investigation of each season, the NYISO conducts million a year. Alternatively, KeySpan the Transaction seasonal, monthly, and spot auctions in could compete with its rivals for sales On November 21, 2006, the United which capacity for New York City can by bidding more capacity at lower States opened its investigation into the be acquired for all or some of the prices, which could potentially produce transaction at issue and its impact on seasonal period. Capacity suppliers offer much higher returns for KeySpan than the market. During the course of its price and quantity bids in each of these bidding the cap, but carried the risk that extensive investigation, the United three auctions. Suppliers may bid all of competitors would undercut its price States received and considered over a their capacity at a single price or in and take sales away. KeySpan contemplated acquiring million pages of documents and separate increments of capacity at Astoria’s generating assets, which were analyzed significant amounts of different prices. Supplier bids are for sale. The acquisition would have complex data, including bidding data ‘‘stacked’’ from lowest-priced to highest. from market participants. The United solved the problem that new entry The stack is then compared to the States issued Civil Investigative posed for KeySpan’s revenue stream, as amount of demand. The offering price of Demands to market participants and Astoria’s capacity would have provided the last bid in the ‘‘stack’’ needed to other entities with relevant information, KeySpan with sufficient additional interviewed market participants and the meet requisite demand establishes the revenues to make continuing to bid its market’s regulators, and conducted market price for all capacity sold into cap its best strategy. KeySpan, however, detailed economic analyses. that auction. Any capacity bid at higher soon concluded that the market power The United States considered the than this price is unsold, as is any issues raised by an acquisition of its potential competitive effects of the capacity bid at what becomes the market largest competitor would imperil the KeySpan Swap in light of all relevant price not needed to meet demand. contemplated transaction. Instead of circumstances and concluded, as the The NYC Capacity Market was highly purchasing the Astoria assets outright, Complaint alleges, that the KeySpan concentrated during the relevant period, KeySpan devised a plan to acquire a Swap was an anticompetitive agreement with three firms—KeySpan, Astoria, and financial interest in Astoria’s capacity. in violation of Section 1 of the Sherman NRG Energy, Inc.—controlling a KeySpan would pay Astoria’s owner a Act. substantial portion of the market’s fixed revenue stream in return for the revenues generated from Astoria’s B. The New York City installed Capacity generating capacity. These three firms capacity sales in the auctions. Rather Market were designated as ‘‘pivotal’’ suppliers by the Federal Energy Regulatory than directly approach its competitor, In the state of New York, sellers of Commission (‘‘FERC’’), meaning that at KeySpan turned to a financial services retail electricity must purchase a least some of each of these three company to act as the counterparty to product from generators known as the derivative agreement the KeySpan ‘‘capacity:’’ 3 Electricity retailers are suppliers’ output was required to satisfy demand. The three firms were subject to Swap recognizing that the financial bid and price caps—KeySpan’s being services company would, and in fact 2 To respond to the concerns raised by the did, enter an offsetting agreement with submitted comments, this Response provides the highest for nearly all of their ‘‘ ’’ 4 greater detail beyond the allegations in the generating capacity in New York City Astoria (the Astoria Hedge ). Complaint. and were not allowed to sell their 3 Except where noted otherwise, this description 4 Although KeySpan knew about Astoria’s role in pertains to the market conditions that existed from capacity outside of the NYISO auction the transaction, the financial services company did May 2003 through March 2008. process. Continued

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The KeySpan Swap remained in effect In considering how to bid when the when prices did not fall to perfectly from May 1, 2006 through April 30, new capacity entered the market, the competitive levels. 2008. During that two year period, key suppliers KeySpan, Astoria and 2. With the KeySpan Swap in Place, KeySpan earned approximately $49 NRG (each of which would have KeySpan Bid Its Cap million in net revenues under the remained pivotal) would have sought to Swap.5 mitigate the risk of lost sales that could With the Swap, capacity prices remained high. By providing KeySpan occur if they bid too high and their D. The Anticompetitive Effect of the with revenues from Astoria’s capacity in capacity was not taken (i.e., volume KeySpan Swap addition to KeySpan’s own revenues, The clear tendency of the KeySpan risk) and the risk of low price from the Swap made bidding the cap Swap was to alter KeySpan’s bidding competitive bidding (i.e., price risk). To KeySpan’s most profitable strategy behavior in the NYC Capacity Market protect against these risks, these regardless of its rivals’ bids. Following auctions. The KeySpan Swap effectively suppliers likely would have bid entry of the substantial amount of new eliminated KeySpan’s incentive to increments of capacity at different price capacity into the market in 2006, compete for sales by lowering price. As levels (‘‘tiered bids’’) rather than bid all KeySpan continued to bid its cap even a result, KeySpan bid its cap, causing of their capacity at a single price. The though a significant portion of its capacity market prices to clear at a level strategic tiering of bids at relatively high capacity went unsold. In contrast to the higher than likely would have occurred prices would have made sense for these historic pattern following significant absent the agreement. suppliers because it would have supply increases, the market price of preserved the possibility of obtaining capacity did not decline. 1. Likely Bidding Scenarios Absent the the rewards of discounting (selling a KeySpan Swap E. The Proposed Remedy greater volume of capacity) while Absent the Swap, KeySpan likely simultaneously mitigating the price risk The proposed Final Judgment requires would have chosen from a range of of discounting. KeySpan to disgorge profits gained as a potentially profitable competitive result of its unlawful agreement in strategies in response to the entry of The United States believes that, restraint of trade. KeySpan is to new capacity and, had it done so, the absent the KeySpan Swap, KeySpan and surrender $12 million to the Treasury of price of capacity likely would have the other pivotal suppliers would have the United States. declined. Although one cannot engaged in tiered bidding upon the II. Summary Of Comments confidently predict the price level that entry of new generation capacity in would have occurred but for the Swap, 2006.7 In other words, in the but-for A. The Pennsylvania Public Utility it is likely that oligopoly pricing in this world, tiered bidding strategies at prices Commission (PaPUC) highly concentrated market would have lower than the cap would have been The PaPUC stated it was deeply been the outcome; i.e., prices would compelling for KeySpan and the other concerned with the ‘‘existence of a have fallen below the cap levels but pivotal suppliers because they offered sophisticated multi year effort by the would have remained above levels that significant upside, and these suppliers defendant to evade competition’’ and the would have prevailed under perfect would have been able to structure their impact of the defendant’s conduct on 6 competition. tiered bids to limit their downside risk electricity markets and electricity relative to bidding their caps. As a prices. The PaPUC expressed its not inform Astoria about KeySpan. It appears that result, market prices likely would have appreciation to the Department of Astoria believed that the financial services company had found a counter-party other than a cleared at a level below the cap but Justice for bringing this enforcement competing supplier of capacity to offset the above competitive levels.8 This view is action, stating that it does not oppose financial services company’s market risk from the consistent with the pattern observed the proposed Final Judgment and Astoria Hedge. during prior periods of excess capacity, explaining that this enforcement action 5 The New York Public Service Commission (‘‘NYPSC’’) estimated KeySpan’s net revenues under demonstrates that conduct in electricity the KeySpan Swap at $67.8 million for the period 7 If all the pivotal suppliers used tiered bidding, markets that is ‘‘inimical to competition May 2006 through March 2008. See NYPSC it is more likely, at any given clearing price, that * * * may result in prosecution and Comment, Paynter Affidavit at ¶ 15. The estimate, withholding would be shared (i.e., that each would serious consequences under the however, fails to reflect the fact that the terms of lose some sales) rather than one supplier taking on ’’ the KeySpan Swap imposed a ceiling on the spot the high cost of being the sole withholder of antitrust laws. The PaPUC concluded auction clearing price used to determine revenues capacity and losing the greatest share of sales. by noting that ‘‘the PaPUC and other under the Swap. This ceiling is based on the 8 NYCEDC claims that the effect of the Swap was public and private entities with a average of the bid caps for KeySpan, Astoria and to ‘‘more than doubl[e] what would otherwise be the critical stake in the success of wholesale NRG. Using this ceiling for the appropriate months, market clearing price’’ and that, absent the Swap, electric generation competition have KeySpan’s net Swap revenues were approximately prices would have fallen to competitive levels. $61 .2 million for the May 2006 through March NYCEDC Comment at 9–10. In an attempt to show benefitted from studying the facts of this 2008 period. The NYPSC estimate also fails to that prices but for the Swap would have fallen case and will be better able to detect and include the last month of the Swap (April 2008) in dramatically to levels consistent with perfect deter similar schemes in the future.’’ which KeySpan had to pay out approximately $12.2 competition, NYCEDC compares prices for specific million. auction periods during certain years the Swap was B. New York State Consumer Protection 6 The New York City Economic Development in effect to those same auction periods after the Board (NYSCPB) Corporation (‘‘NYCEDC’’) comments cite an affidavit Swap’s expiration in April 2008. See Id. (e.g., submitted in a FERC proceeding by the NYISO $12.34/kW-month price in May 2007 compared to The NYSCPB commended the market monitor, David Patton, for the proposition $6.52/kW-month in May 2008). These comparisons, Department of Justice for pursuing the that, had all capacity been sold, prices would have however, are flawed because FERC changed the improper collusive behavior at issue. cleared under $6/kW month, which is less than half rules for the auction in May 2008, requiring, among the level of the pivotal suppliers’ caps (which were other things, that the pivotal suppliers bid zero, as NYSCPB expressed two concerns with above $ 121kw month). NYCEDC Comments at 9; would a ‘‘price taker,’’ thereby causing prices to fall the settlement. First, it argued that the see also AARP Comments at 11. Dr. Patton to the competitive floor. Given this significant rule United States has a burden to provide described the effect all suppliers would have had change, these comparisons cannot serve as a sufficient evidence for the court to on the auction if bidding as ‘‘price-takers’’ (i.e., a meaningful test for how the auctions would have ‘‘perfectly competitive’’ outcome), but he does not cleared had KeySpan, Astoria, and NRG been free, determine the total harm from the opine that suppliers actually would have bid in this as they had been in the past, to engage in strategic, wrongful behavior, explain how the manner absent the Swap. tiered bidding strategies. amount to be disgorged will deter future

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wrongdoing, and identify the recognition that ‘‘private individuals generally United States v. Microsoft responsible officers. Second, it argued could not bring an antitrust suit here Corp., 56 F.3d 1448, 1458–62 (D.C. Cir. that the proposed Final Judgment is not due to the barrier of the filed rate 1995); United States v. SBC Commc’ns, in the public interest because the doctrine.’’ It argued that the filed rate 489 F. Supp. 2d 1, 12–17 (D.D.C. 2007). disgorgement proceeds are remitted to doctrine should have no application to Although the Tunney Act was designed the Treasury rather than to the harmed the equitable distribution of disgorged to prevent ‘‘judicial rubberstamping’’ of electricity customers and concluded funds to consumers as a remedy in this proposed Unites States consent decrees, that the proposed Final Judgment case. the ‘‘Court’s function is not to determine should contain a mechanism to F. AARP whether the proposed [d]ecree results in distribute the proceeds to customers or the balance of rights and liabilities that establish an energy efficiency program. AARP asserted that the settlement is is the one that will best serve society, not in the public interest because of the but only to ensure that the resulting C. New York City Economic ‘‘lack of any monetary remedy or other Development Corporation (NYCEDC) settlement is ‘within the reaches of the discernible benefit for injured public interest.’’’ United States v. Alex ‘‘ The NYCEDC was highly consumers, and the absence of a Brown & Sons, 963 F. Supp. 235, 238 appreciative’’ of the enforcement effort credible deterrent.’’ It claimed that there (S.D.N.Y. 1997) (quoting Microsoft, 56 and commended using antitrust is an inadequate factual foundation to F.3d at 1460) (emphasis in original), remedies to address anticompetitive determine the appropriateness of the aff’d sub nom, United States v. Bleznak, practices in the New York City energy amount of the remedy and its deterrent 153 F.3d 16 (2d Cir. 1998). sector. The NYCEDC criticized the $12 effect. It further noted that the decree million disgorgement as inadequate contains no admission of guilt by With respect to the scope of the ‘‘given the scale of unjust enrichment to KeySpan and no ‘‘public shaming.’’ complaint, the Tunney Act review does KeySpan.’’ It asserted that there are AARP requested that the proposed not provide for an examination of ‘‘professional estimates’’ and other Final Judgment be amended to require possible competitive harms the United evidence of the harm that the Court an acknowledgment of wrongdoing, States did not allege. See, e.g., should use to review the adequacy of identification of total ‘‘inflated prices’’ Microsoft, 56 F.3d at 1459 (holding that the remedy, including a KeySpan for capacity, identification of the the district judge may not reach beyond statement of the amount it made under derivative contracts at issue, and the complaint to evaluate claims that the Swap and various independent disgorgement of all profits. In the the government did not make). estimates of capacity prices if KeySpan alternative, AARP argued that the record With respect to the sufficiency of the had not entered the Swap. should be augmented to show the total proposed remedy, a district court profit ‘‘achieved by all sellers in the D. New York State Public Service should accord due respect to the United NYISO capacity market,’’ an estimate of Commission (NYPSC) States’s views of the nature of the case, the ‘‘total damage and economic harm’’ its perception of the market structure, NYPSC stated that the Department of to consumers in the entire state of New and its predictions as to the effect of Justice ‘‘is to be commended for its York, the revenues KeySpan received proposed remedies. See, e.g., SBC, 489 faithful enforcement of the antitrust under the Swap, and the rationale for F. Supp. 2d at 17 (United States entitled laws to protect the integrity of the accepting less than full disgorgement to deference as to predictions about the electricity markets in New York City.’’ It and for not providing any remedy to efficacy of its remedies). Under this argued, however, that the Court has no benefit injured customers. standard, the United States need not basis for evaluating whether the show that a settlement will perfectly proposed disgorgement will prevent G. Nelson M. Stewart remedy the alleged antitrust harm; KeySpan’s unjust enrichment or Mr. Stewart urged the United States rather, it need only provide a factual whether it is sufficient to deter not to ‘‘accept a plea’’ from KeySpan. He basis for concluding that the settlement anticompetitive conduct in the future. It alleged that KeySpan and related is a reasonably adequate remedy for the recommended that the Court order entities committed fraud, perjury, and alleged harm. Id.9 additional evidence to be produced and forgery with respect to construction asserted that ‘‘anything less than full contracts wholly unrelated to the IV. Response to the New York disgorgement’’ would be inadequate for capacity market or the Swap. Commentors and AARP deterrence. NYISC also asserted that because III. Standards Governing the Court’s Disgorgement serves the public ‘‘ratepayers may have no recourse’’ due Public Interest Determination Under interest by depriving KeySpan of ill- to the filed rate doctrine, the remedy in the Tunney Act gotten gains, thereby deterring KeySpan the United States’ case should reflect As discussed in detail in the and others from engaging in similar the ‘‘standard measure of damages,’’ Competitive Impact Statement, the anticompetitive conduct in the future. which is the amount of the ‘‘overcharge’’ Court, in making the public interest No other remedy would be as effective in the capacity market. It concluded that determination called for by the Tunney to fulfill the remedial goals of the payment to the U.S. Treasury instead of Act, is required to consider certain Sherman Act to ‘‘prevent and restrain’’ to consumers ‘‘would be a manifestly factors relating to the competitive unfair result’’ and that the disgorged impact of the judgment and whether it 9 Tunney Act review is not so that the court can proceeds should either be credited to adequately remedies the harm alleged in engage in an ‘‘unrestricted evaluation of what relief the complaint. See 15 U.S.C. 16(e)(1)(A) would best serve the public,’’ United States v. BNS, ratepayers or used to establish an energy Inc., 858 F.2d 456, 462 (9th Cir. 1988) (citing United efficiency program. & (B) (listing factors to be considered). States v. Bechtel Corp., 648 F.2d 660, 666 (9th Cir. This public interest inquiry is 1981)), or determine the relief ‘‘that will best serve E. Consolidated Edison (Con Ed) necessarily a limited one, as the United society,’’ Bechtel, 648 F.2d at 666, but simply for Con Ed argued that the settlement is States is entitled to deference in crafting the court to determine whether the proposed decree is within the reaches of the public interest ‘‘even if not in the public interest because it fails its antitrust settlements, especially with it falls short of the remedy the court would impose to provide payment to electricity respect to the scope of its complaint and on its own.’’ United States v. AT&TCo., 552 F. Supp. consumers despite the United States’ the adequacy of its remedy. See 131, 151 (D.D.C. 1982).

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antitrust violations.10 Given that the Had the case proceeded to trial, the evaluating whether to pursue an KeySpan Swap has now expired and United States would have sought anticompetitive Swap, KeySpan would KeySpan no longer owns the generating disgorgement of the approximately $49 have engaged in a cost-benefit analysis assets associated with the million in net revenues that KeySpan weighing the returns from the anticompetitive conduct, injunctive received under the Swap,13 contending anticompetitive strategy against the relief against KeySpan would not be that these net revenues reflected the returns of various potential competitive meaningful.11 value that KeySpan received from bidding strategies. While we cannot The comments of the New York trading the uncertainty of competing for quantify with certainty KeySpan’s bid Public Service Commission, the New the certainty of the bid-the-cap strategy. levels or the outcome of the market York State Consumer Protection Board, The United States recognizes that it has clearing price that would have resulted the New York City Economic not proved its case at trial and that ‘‘a but for the Swap, depriving KeySpan of Development Corporation, and court considering a proposed settlement $12 million in Swap revenues would Consolidated Edison Company does not have actual findings that the have reduced the value to KeySpan of (collectively the ‘‘New York defendant { ] engaged in illegal engaging in the anticompetitive Swap Commentors’’) and AARP have two practices, as would exist after a trial.’’ 14 strategy, thereby shifting the results of central objections: (1) That the $12 The $12 million disgorgement amount is KeySpan’s cost benefit analysis toward million dollar disgorgement is the product of settlement and accounts competitive strategies rather than inadequate to serve its remedial for litigation risk and costs. As courts entering into the Swap.18 purpose, and (2) that the disgorged have stressed, it is altogether Moreover, it is improper to consider proceeds, rather than being remitted to appropriate to consider litigation risk the adequacy of the disgorgement the Treasury, should directly or and the context of settlement when amount by comparing $12 million to indirectly benefit electricity consumers evaluating whether a proposed remedy some measure of overcharges to who paid higher electricity bills or be is in the public interest.15 consumers in the electricity market. used to fund programs that benefit Commentors nevertheless assert that Disgorgement is not aimed at making electricity consumers. The United States anything less than full disgorgement is consumers whole. As this Court has has carefully considered these inadequate as it would not deter the previously recognized, the purpose of objections but finds that they do not conduct at issue. This position ignores disgorgement is to deprive the violator warrant modification of the proposed the fact that the loss to KeySpan of $12 of unjust enrichment rather than to Final Judgment. million in Swap revenues would have compensate victims of the violation. 19 had a deterrent effect on KeySpan’s The extent of market harm is not A. The Proposed Remedy Is Appropriate incentive to enter into the Swap. The relevant, as once a violation has been and Deters Anticompetitive Conduct United States contends that the Swap established, a district court ‘‘possesses The New York Commentors argue that removed any incentive for KeySpan to the equitable power to grant disgorgement of $12 million is an bid competitively, locking it into disgorgement without inquiring inadequate remedy that will not serve as bidding its cap instead of evaluating whether, or to what extent, identifiable an effective deterrent, especially when competitive choices, each of which private parties have been damaged by compared to KeySpan’s approximately could have resulted in different market [the violation].’’20 Such an inquiry $49 million net revenues earned under clearing prices for capacity.16 The would require the Court to assess the the Swap and the increased prices paid violation was based on the price of capacity that would have by electricity consumers. Such concerns anticompetitive effect of the agreement prevailed absent the Swap,21 a are misplaced. on KeySpan’s incentives to compete, not Disgorgement in and of itself on a specific lower price that would 18 KeySpan would have had two revenue streams constitutes significant and meaningful have resulted absent the Swap.17 In to consider when deciding upon a bidding strategy: revenues directly from sales of capacity in the relief. This is the first time that the auctions and revenues from the Swap. It is likely 13 United States has sought disgorgement The NYPSC suggests that the disgorgement that KeySpan absent the Swap would have earned ‘‘ under the Sherman Act. Parties calculation should also include the profits gained more in auction revenues from tiered bidding by KeySpan through the unlawfully higher price of strategies than from bidding its cap. Indeed, if this contemplating anticompetitive capacity.’’ NYPSC Comments at 14 & n.5. The were not the case, the Swap would not have altered NYPSC appears to be contending that, for example, agreements similar to the KeySpan how KeySpan bid. KeySpan earned more total if KeySpan sold 1600 MW at its cap of Swap now will have to take into revenues by bidding its cap when accounting for approximately $12/kW-month under its earnings it receives with the Swap in effect. The account possible disgorgement, thereby anticompetitive Swap strategy but would have sold directly affecting their incentives to 2400 MW at a lower price (assume $8/kW-month), disgorgement remedy here serves to reduce the additional earnings the Swap would have provided engage in illegal behavior. Disgorgement then KeySpan gained an additional profit of $6.4 million (1600 MW × $4/kW-month). This KeySpan. is particularly appropriate here as the contention is misplaced, as it fails to account for 19 SEC v. Bear Stearns & Co., Inc., 626 F. Supp. anticompetitive conduct at issue may revenues from the additional volume that KeySpan 2d 402, 406 (S.D.N.Y. 2009). not be subject to other remedies. For would have sold at the lower clearing price and 20 SEC v. Blavin, 760 F.2d 706, 713 (6th Cir. example, absent disgorgement, KeySpan thereby ignores the net auction revenues that 1985). See also SEC v. Tome, 833 F.2d 1086, 1096 KeySpan would have earned in the but-for world. (2d Cir. 1987) (‘‘Whether or not [any victims] may likely would retain all the benefits of its 14 SBC, 489 F. Supp. 2d at 15 (citing Microsoft, be entitled to money damages is immaterial [to anticompetitive conduct because the 56 F.3d at 1461). disgorgement].’’) filed rate doctrine creates significant 15 ‘‘It is therefore inappropriate for the judge to 21 Such an assessment is disfavored under the obstacles to the collection of damages.12 measure the remedies in the decree as if they were filed rate doctrine in cases where private claimants fashioned after trial. Remedies which appear less seek damages for overcharges. See, e.g. Arkansas than vigorous may well reflect an underlying Louisiana Gas Company v. Hall, 453 U.S. 571, 580– 10 U.S.C. 4 (investing district courts with weakness in the government’s case, and for the 81 (1981) (‘‘In the case before us, the Louisiana equitable jurisdiction to ‘‘prevent and restrain’’ district judge to assume that the allegations have Supreme Court’s award of damages to respondents violations of the antitrust laws). been formally made out is quite unwarranted.’’ was necessarily supported by an assumption that 11 The disgorgement here seeks to prevent Microsoft, 56 F.3d at 1461; see also SBC, 489 F. the [different] rate respondents might have filed anticompetitive conduct and, in this way, is similar Supp. 2d at 15 (‘‘[R]oom must be made for the with the [regulator] was reasonable. Otherwise, in focus to the traditional antitrust remedy of government to grant concessions in the negotiation there would have been no basis for that court’s injunctive relief. process for settlements.’’) conclusion * * * that the [regulator] would have 12 See Keogh v. Chicago & NW. Ry. Co., 260 U.S. 16 See Complaint, ¶¶ 4–5. approved the rate. But under the filed rate doctrine, 156 (1922); see also, infra, § IV.B. 17 See CIS at 6–7. the [regulator] alone is empowered to make that

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problematic exercise given the also be constrained by the doctrine and Tunney Act proceedings, therefore, are uncertainty of determining market its corollary bar to retroactive not an appropriate venue for the outcomes absent the Swap.22 ratemaking.26 The mechanisms consideration of Mr. Stewart’s claims. suggested by the commentors could be B. Disgorgement Proceeds Should Be VI. Conclusion Remitted to the U.S. Treasury seen as an end run around those well- established doctrines. In this case, After careful consideration of the Several commentors argued that payment to the U.S. Treasury avoids public comments, the United States KeySpan’s $12 million disgorgement this unnecessary and thorny issue. remains of the view that the proposed payment should be made to entities Moreover, the Miscellaneous Receipts Final Judgment provides an effective other than the U.S. Treasury in order to Act (‘‘MRA’’) states that ‘‘an official or and appropriate remedy for the antitrust benefit the electricity customers in New agent of the Government receiving violation alleged in the Complaint and York City who paid higher prices as a money for the Government from any that its entry would therefore be in the result of KeySpan’s conduct. The United source shall deposit the money in the public interest. Plaintiffs’ chosen States shares the commentors’ concern Treasury as soon as practicable without remedy in this case deprives KeySpan of for the New York City ratepayers and, deduction for any charge or claim.’’ 31 ill-gotten gains, effectively deters the indeed, brought this case and sought U.S.C. 3302(b). Under this statute, harmful behavior, and establishes the disgorgement in order to deter future members of the Executive Branch 27 that United States’s willingness to seek anticompetitive agreements like the receive money for the United States are disgorgement in appropriate cases. The KeySpan Swap. The United States has to remit such funds directly to the U.S. PaPUC (as well as other commentors) carefully considered the suggested Treasury. A purpose of the statute is to noted that the action has established an alternative uses for the disgorgement protect Congress’s appropriations important antitrust enforcement proceeds but has determined that authority by ensuring that money precedent in regulated energy markets payment to the U.S. Treasury is the collected from various sources cannot and that, as a result, it and other public most appropriate result in this be used for programs not authorized by and private entities with a critical stake circumstance. The alternative law. The proposed remedy avoids any in the success of wholesale electric distribution plans proposed by issues of compliance with the MRA.28 generation competition will be better commentors seek, in effect, to restore able to detect and deter similar schemes funds to ratepayers. The United States, V. Response to Comments of Nelson M. in the future.29 Based on the factors set however, specifically chose to seek Stewart forth in the Tunney Act, entry of the disgorgement, rather than restitution, as Mr. Stewart’s comment alleges fraud, proposed Final Judgment is in the a remedy for this violation. As perjury, and forgery committed by public interest. discussed in the CIS, disgorgement is KeySpan and its subsidiary KSI Pursuant to section 16(d) of the particularly appropriate on the facts of Contracting. The allegations concern Tunney Act, the United States is this case to fulfill the remedial goals of submitting the public comments and 23 conduct that is wholly unrelated to the the Sherman Act. Disgorgement also capacity market or the KeySpan Swap this Response to the Federal Register for provides finality, certainty, avoidance of and are unrelated to the antitrust publication. This Response is also being transaction costs, and potential to do the provided to each of the commentors. 24 violations that the United States alleges most good for the most people. in its Complaint. As noted above, in After the comments and this Response Legal concerns would arise with a making its public interest determination are published in the Federal Register, remedy based on restitution that sought in accordance with the Tunney Act, it the United States will move this Court to directly or indirectly reimburse New would be ‘‘error for the judge to inquire to enter the proposed Final Judgment. York City ratepayers. Such a remedy ’’ would raise questions relating to the into allegations outside the complaint. Dated: June 11, 2010. filed rate doctrine, which bars remedies Microsoft, 56 F.3d at 1463. These Respectfully submitted, (such as damages) that result, in effect, /s/ lllllllllllllllllll 26 See, e.g., Ark/a, 453 U.S. at 578 (‘‘Not only do in payment by customers and receipt by Jade Alice Eaton, the courts lack authority to impose a different rate [email protected] sellers of a rate different from that on than the one approved by the Commission, but the file for the regulated service.25 Some of Commission itself has no power to alter a rate Trial Attorney, U.S. Department of Justice, the commentors recognize the doctrine’s retroactively. * * * This rule bars ‘the Antitrust Division, Transportation, Energy potential limitation on their own ability Commission’s retroactive substitution of an & Agriculture Section, 450 Fifth Street, unreasonably high or low rate with a just and NW., Suite 8000, Washington, DC 20004. to seek such reimbursement directly. reasonable rate.’ ’’(citations omitted)). Con Ed—a Telephone: (202) 307–6316. Facsimile: They do not discuss the fact that commentor here—directly requested that FERC (202) 307–2784. regulators such as the FERC and the order refunds of the higher cost of capacity due to NYPSC seeking to offer refunds may KeySpan’s behavior. The FERC declined to grant Nelson M. Stewart, them. New York Indep. Sys. Operator, Inc., 122 PO Box 1833 FERC ¶ 61,211 (2008) (March 7, 2008 Order). Quogue, N.Y. 11959 judgment, and until it has done so, no rate other 27 The MRA applies to the Department of Justice than the one on file may be charged.’’) as a member of the Executive Branch. We are not (646) 258 9369 22 Given the difficulty of definitively estimating aware of its application to independent agencies April 10, 2010 the harm to the market and its irrelevance to the such as the Securities and Exchange Commission. Donna N. Kooperstein, Chief, questions relating to the adequacy of the 28 In addition to legal concerns, distribution of the disgorgement remedy, the United States has no disgorged funds to entities other than the Treasury Transportation, Energy and obligation, as AARP asserts, to provide estimates of also would raise practical concerns. Distribution Agriculture Section, Antitrust total economic harm and profits received by all directly to the numerous individual electricity Division, 115. Department of market participants resulting from the alleged consumers would have high administrative costs Justice, 450 5th St. NW., Suite 8000, violation. relative to the overall disgorgement amount. 23 CIS at 9–10. Distribution to the electricity companies that Washington, DC 20530 24 See Bear Stearns, 626 F. Supp. 2d at 419 purchased capacity from generators for ultimate Re: United States of America, U.S. (directing the transfer of remaining disgorgement refund to consumers could involve monitoring and Department of Justice, Antitrust related settlement funds to the Treasury to be used compliance issues. And, the funding of an energy by the Government for its operations). efficiency program would also raise administrative Division v. Keyspan Corporation. 25 See generally Square D (o. Niagara Frontier, 476 issues (and would be attenuated from the harm U.S. 409, 423 (1986). alleged in the Complaint). 29 E.g., PaPUC Comments at 3.

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Dear Ms. Kooperstein, In accordance again at a later time. The document in thorn in the side of Keyspan Energy and with the details of the February 22, 2010 Attachment a is the only response I have company executives were desperate to press release issued by the United States ever received from National Grid or stop them (Please see Attachment d). If Department of Justice I am writing to Keyspan regarding the information I this same conduct was found to be urge you not to accept the plea from submitted to Ms. Ireland. It is the direct present at these other projects the Keyspan Energy that now awaits result of a message I left for Ms. Ireland amount of money being misrepresented approval from the United States District with the National Grid compliance would be enormous. Court. Keyspan Energy has been the office after several failed attempts to The ability to report allegations of subject of numerous investigations contact her as she had suggested. Mr. unethical and criminal conduct to the resulting from questionable conduct Rosen’s email is a continuation of the compliance office of a publicly traded over the years. In many instances the threats made in his letter of December corporation without the threat of company simply paid a fine and 27, 2007 (See page of Attachment b) in retaliation is a fairly reasonable admitted no wrongdoing. Particularly response to my previous attempts to expectation. Most first year law with large corporations like Keyspan contact the defendants concerning the students, if not most lay people, would Energy, the profit gained from this conduct of their employees and Mr. know that that represented parties to a behavior is usually much more Rosen. To date I have made no less than litigation may discuss issues related to substantial than the fines levied. five attempts to report this conduct to that litigation. I am not an attorney and Consider the golden parachute the compliance offices of Keyspan and neither is my business partner. My payments to William Catacasinos and National Grid. Mr. Rosen’s letter and attempts to communicate with Ms other executives (a $1.5 million email are the only responses I have ever Ireland were not improper. Yet this was settlement was paid to the NYS received. A copy of the documents sent the second time Mr. Rosen attempted to Attorney General’s Office) and the sale to Ms. Ireland are included as prevent such communication. of $29 Million in stock by Keyspan’s Attachment c. Knowledge of the facts and the law CFO, COO and President prior to the Mr. Rosen and his clients have good mean little to Mr. Rosen and his clients. publication of substantial losses related reason to thwart any discovery related What is most important is the use of any to the acquisition of Roy Kay, Inc. I to Roy Kay, Inc/KSI Contracting. In tactic, however unethical, to deter would contend that such penalties fail response to our initial claims to recover continued discovery of the assertions to alter misconduct and increase the monies from work performed for Roy raised in these matters. That the temptation to push the boundaries of Kay, Inc/KSI Contracting the defendants compliance office would refer this unethical conduct. Where one might produced two forged contracts and matter back to the same attorney who expect the compliance office to guard purported them to be genuine. One played a substantial role in the against such conduct, the compliance contract forged the signature of our allegations at issue illustrates that these office of Keyspan Energy and its parent company’s president, Nelson Stewart, practices are systemic throughout the company National Grid appears to Sr. and the other reduced the amount of company. Keyspan’s refusal to even ignore these actions and, on at least one the original contract from $750,000.00 consider these allegations is bad occasion, even assisted in an attempt to to $250,000.00 and altered the original enough. Threats of further abuse of the retaliate against someone who date from March 15, 2002 to May 14, legal process by their attorney in this endeavored to report them. 2002 (despite the fact that the date of matter demonstrate that the compliance the signature page, which is identical on offices of Keyspan Energy and National In 2008 I attempted to follow up on their contract and the genuine contract, Grid exist simply to pay tip service to my third effort to notify Keyspan reads March 15, 2002). The defendants the ideal of ethical and legal business Energy/National Grid of fraud, perjury, also submitted false, unsubstantiated conduct. When these ideals become an forgery and accounting fraud committed back charges and several of the inconvenience the compliance office not by employees of Keyspan Energy, its statements made by employees of the only steps aside but, as evidenced by wholly owned subsidiary 1(51 defendants have proved to be untrue. In attachment a, actively participates in Contracting (The former Roy Kay, mc) over seven years of litigation the attempting to remove that and their attorneys. These highly defendants have never produced a inconvenience. unethical and illegal acts stem from two single document that would refute or The conduct of Keyspan Energy’s contract actions filed by my company explain the evidence we have compliance office in this matter is related to work performed for the now submitted. indicative of a pattern that has led to infamous Roy Kay, Inc./KSI Contracting. The documentation we have been able numerous allegations of misconduct On this third attempt I spoke with to obtain from third parties provide over the years. I respectfully submit to Margaret Ireland of the National Grid evidence that Roy Kay/KSI Contracting the Department of Justice that fines have Compliance Office and detailed a was altering accounting documents and done little to correct the conduct of this number of these allegations. I further omitting information from job records to company in the past and cannot be explained that the attorney defending make it appear as though work expected to alter such conduct in the this matter, Mark Rosen of McElroy, performed by subcontractors was future. It is worth noting that Mr. Rosen Mulvaney, Deutsche and Carpenter, UP, performed by KSI Contracting. What and his clients, no doubt encouraged by had used illegal and highly unethical were actually liabilities to Roy Kay, Inc/ the support they have received thus far, tactics to prevent further discovery of KSI Contracting appear to have been continue the same pattern of obstructive the conduct I alleged. Ms. Ireland asked misrepresented as money owed to the and improper conduct to this day in the me to send her whatever recent company. While the documents we above referenced actions. For much the documentation I had and said she obtained are only relevant to the two same reason that an independent would look into the matter. Having projects our company worked on, Roy auditor oversees the accounting received no response I called again and Kay, Inc/KSI Contracting was involved statements of a public company, a asked if she would like me to send more in up to twenty-six projects at the time. separate compliance office, free from the documentation. Ms. Ireland stated she Losses from Roy Kay, Inc/KSI influence of Keyspan Energy and had not had time to look into the Contracting, well over $100 Million in National Grid, should be charged with documents I had sent but I should call the third quarter of 2002 alone, were a the responsibility of enforcing the

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ethical business standards to which asked me to send her a copy of some of NYISO’s New York Control Area, which both companies publicly claim to the allegations I had related to her I sent is itself coextensive with the State of aspire. To deter the kind of behavior the letter to Vincent Miseo, Claims New York. NYISO Zone J forms the that is now before the United States Attorney for Federal Insurance, (Federal relevant geographic market affected by District Court, Keyspan needs a truly issued the payment and performance the conduct of KeySpan set out in the independent compliance office that will bond on one of the projects) along with Complaint filed in this matter by the respond to allegations of unethical my letter to the NYS Insurance Department of Justice on February 22, practices in a diligent and appropriate Department because they included the 2010. The relevant geographic and manner. It is clear that the current most recent developments with respect product market in the action brought by management lacks the will to impose to these actions. Two previous letters the Department of Justice against these standards on itself. Without this containing substantial documentation of KeySpan is described in the Complaint kind of impartial supervision of our allegations were sent on June 28, as the ‘‘New York City Installed Capacity company conduct the next mendacious 2006 and October 24, 2006. A copy of Market’’ or ‘‘NYC Capacity.’’ 1 scheme will likely be a simple matter of these documents can be made available Even more than most urban areas in time. at your request. the nation, New York City and its I truly appreciate the opportunity to Attachment d residents and businesses are particularly voice an opinion in this matter and I dependent on electricity for thank you for your consideration. The attached exchange between transportation and other critical energy Keyspan executives demonstrates the needs. The costs borne by City Sincerely, frustration resulting from the Roy Kay Nelson Stewart ratepayers are among the highest in the losses. Keyspan eventually offset these continental United States, as was losses by hiring out the remaining work List of Attachments recognized by the Electric Energy on these projects to subcontractors and Market Competition Task Force 2 in its Please Note: The documents I have later refusing to pay them. Many of Draft Report to Congress pursuant to submitted and the allegations I have those who attempted to collect these section 1815 of the Federal Energy raised are by no means a complete sums in Court were met with the same Policy Act of 2005. account of the actions of Keyspan tactics described in this letter. NYCEDC, acting through its Energy Energy and KSI Contracting with respect http://wwss.justice.gov/atr/cases/ Policy Department, serves as Mayor to these matters. There are well over f259700//259704-7pdf Michael Bloomberg’s principal energy 1,500 documents related to these policy adviser, and also serves as the matters. United States District Court for the Southern District of New York Chair of the City’s Energy Policy Task In consideration of the two-month Force, and the New York City Energy time constraint the court is acting under United States of America, Plaintiff vs. Planning Board. NYCEDC also serves as I have attempted to be as brief as KeySpan Corporation, Defendant. a catalyst for City economic possible while providing an informative Civil Action No. 10–cv–1415 (WHP) development, capital investment, and sample of the unethical conduct of both Comments of the New York City growth. All of these concerns are vitally Keyspan Energy and its compliance Economic Development Corporation dependent on the provision of reliable office. Additional documentation can he Made Pursuant to the Antitrust energy at just and reasonable prices. The made available at your request. Procedures and Penalties Act City is also a voting member in the NYISO governance structure as a large Attachment a The New York City Economic governmental end user. This email was sent to my attorney in Development Corporation (‘‘NYCEDC’’), response to a phone call I placed to acting on its own behalf and on that of II. Summary and Background Margaret Ireland, compliance officer for the City of New York City as electricity As noted in the materials submitted to National Grid. National Grid is the ratepayers in the market affected by the the Court in this matter, a very large parent company of Keyspan Energy. conduct of the Defendant, hereby files increment of in-City electric capacity, Together with attachment b it is the comments on the proposed Final some 1000 megawatts (‘‘MW’’), entered only response I have ever received from Judgment in the above-captioned matter. the City market in early 2006. However, Keyspan Energy regarding the These comments are responsive to a in contravention of basic economic allegations I raised. Notice published at 75 FR 9946, theory, this addition resulted in no Proposed Final Judgment and Attachment b reduction in NYISO capacity prices, and competitive impact Statement, on in at least some instances, those prices This letter was sent in response to our March 4, 2010. actually rose. The premise of numerous demands upon Mr. Rosen and deregulated energy and capacity his clients for the production of I. Interest of Title, New York City Economic Development Corporation, markets in New York as conceived by documents. The court did not accept the New York State Public Service Mr. Rosen’s attempts to blame the and of the City of New York as Electric Ratepayers in the New York Market Commission (‘‘NYSPSC’’) was in large plaintiffs for his failure to produce measure based on the presumed salutary The City of New York (‘‘City’’) and witnesses and documents. A motion to effects of rivalrous market behavior, NYCEDC, along with other commercial strike the defendants’ answer in this including the expected value of new and residential electricity ratepayers matter was granted by the court on entrants in enhancing consumer located in the jurisdiction of the City, December 22, 2008. welfare, and in moderating prices in the are directly affected by the operation of constrained New York electricity Attachment c the electric capacity market market. These letters were sent to several administered by the New York members of the National Grid Independent System Operator 1 Complaint herein at page 4. Compliance Office by return-receipt (CCNYISO). The City is geographically 2 Draft Report to Congress on Competition in the mail. They came back unsigned for. coextensive with NYISO Zone J, one of Wholesale and Retail Markets for Electric Energy, When Ms. Ireland of National Grid several regions that comprise the at pp. 20–22, 73 (issued June 5, 2006).

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However, as the Complaint herein NYISO market rules so long as KeySpan capacity remained at the maximum alleges, actions taken by KeySpan in bid at or below its fixed bid cap amount. permissible price cap level. violation of the Sherman Act had the The NYISO Services Tariff, Attachment The conduct of KeySpan as set out in effect of negating the beneficial effects H, Section 2.4 defines economic the Complaint raised critical market associated with the arrival of new, withholding in the energy market as power issues in the period of 2006–2008 highly efficient generation facilities. ‘‘submitting bids for an Electric Facility and raised prices for some three million KeySpan’s bidding practices, coupled that are unjustifiably high so that (i) the Zone J electric ratepayers. The illegal with its artful use of a derivative Electric Facility is not or will not he conduct alleged here was only stopped financial instrument to leverage its dispatched or scheduled, or (ii) the bids when the NYSPSC exercised its already dominant market position as the will set a market clearing price.’’ supervisory authority over KeySpan in City’s largest generator, permitted it to DGOs are prohibited by FERC- early 2008, and compelled the company distort the capacity market, and to imposed NYISO market rules from to bid in the Zone J capacity market as impose artificially high capacity prices physically withholding capacity in the a price-taker, i.e., at a zero price. This on City consumers. The imposition of periodic capacity auctions. In practice, action effectively eliminated the ability these artificial prices resulted, as the however, as the Complaint here details, of KeySpan to raise capacity prices. Department of Justice notes, in unjust the form of economic withholding In the case of KeySpan, the issue of enrichment to KeySpan. Moreover, practiced by KeySpan achieved virtually its status and role as the largest of the because of the manner in which the the same end: Causing capacity prices to pivotal capacity DGO bidders was NYISO capacity operates and clears clear at supranormal levels. heightened by its use of a contractual based on the highest bid that is The addition in early 2006 of a very arrangement with Morgan Stanley to accepted, the illegal conduct alleged large increment of new in-City financially purchase 1,800 MW of here also served to provide supranormal capacity—1000 megawatts—failed to capacity in the New York City market capacity revenue prices to Zone J lower capacity prices, thus to a degree for a period of three years at a fixed 5 generation capacity providers at large, refuting the promise of the demand price of $7.57 per kW-month. Under thereby exacerbating the already great curve addition to the New York Control the contractual terms, KeySpan would consumer harm (done to ratepayers by Area market earlier approved by the profit to the extent that the City capacity the conduct described in the Complaint. Commission. Indeed, in some instances price cleared above that level. The combination of its own very large III. Discussion the capacity clearing prices in 2006 actually increased compared to the generation presence, and this financial The NYISO capacity market was equivalent 2005 auction levels, a result arrangement gave KeySpan a direct or intended to set the clearing price as a that was clearly anomalous. indirect interest in the price of some function of the free interplay of the These bidding practices distorted the 4200 MW of in-City capacity. forces of supply and demand. Here, capacity market and imposed excessive IV. Analysis of Proposed Disgorgement however, that process was distorted prices on the consuming public, while Remedy through a form of market gaming by enriching incumbent capacity providers KeySpan. As was observed by the New York More than ten years ago, when the in a manner that exceeded even the State Department of Public Service in its New York State energy markets were generous existing capacity comments herein,6 there are two deregulated by the NYSPSC, the City compensation formula. The price of a primary concerns: (1) The amount of the power plants were divested in an effort commodity should decrease as the disgorgement fund amount that is to reduce the potential for market power supply of that commodity increases. appropriate here, and (2) the proper abuse. However, as the Complaint This theory underlies the capacity recipients of the disgorgement funds. herein describes, the in-City capacity demand curve market design that was The City and NYCEDC are in accord market is an oligopoly, with three implemented by the NYISO, and with the view expressed by NYSPSC dominant generation suppliers known approved by the Federal Energy that the proposed $12 million as the divested generation owners Regulatory Commission in 2003. The disgorgement is inadequate given the (‘‘DGOs’’). This was true during the Commission observed in its Order that scale of the unjust enrichment to operative period of the illegal conduct the price would gradually fall as the KeySpan here. We also believe that a alleged by the Department of Justice amount of available capacity beyond 1 credit for the disgorgement amount (‘‘DOJ’’) Antitrust Division here, and it 18 percent of peak load.3 could readily be provided to the victims remains true today. KeySpan was a As noted above, in early 2006, of the conduct here through credits pivotal bidder, i.e., at least a portion of approximately 1,000 MW of new provided through the NYISO wholesale its capacity was needed to permit the capacity was added in the City, market. Such credits would flow in the market to clear. Moreover, it was the markedly increasing the amount that wholesale market operated by the largest generation supplier in the City, could be bid into the periodic NYISO NYISO to the load serving entities with some 2400 megawatts of capacity. capacity auctions.4 Yet, the price of (‘‘LSEs’’), who would be compelled by In recognition of the market power the NYSPSC to maintain those funds as enjoyed by DGO, the Federal Energy 3 May 2003 Demand Curve Order in FERC Docket bill credits available to the retail ERO3–647–009 at p. 3, ¶ 5; the Commission’s Regulatory Commission imposed decision also referenced a NYISO estimate that a customers of the LSEs. This process capacity bid caps on them. KeySpan 1% increase in capacity in the State would result was given the highest bid cap dollar in average consumer savings of $100 million 2006 Earnings Conference Call, p. 9 (held May 4, value, which actually served to increase annually. Id. at p. 6, ¶ 9 and at p. 16, fit 23. 2006). 4 In early 2006, two new 500 MW combined- 5 Securities & Exchange Commission Form 8–K the effect of the market-distorting cycle, gas-fired power plants entered service in New filed by KeySpan Corporation, May 4, 2006, conduct that the Complaint herein York City. These were the SCS/Astoria, operated by Accession Number 0001062379–06–000054; describes, as it permitted the highest Astoria Energy LLC, a subsidiary of SCS Energy KeySpan First Quarter 2006 Earnings Conference possible clearing price in the relevant LLC, and the New York Power Authority’s new Call, p. 9 (held May 4, 2006). Poletti unit in Astoria, Queens. See Securities & 6 Tunney Act Comments of the New York State market. Economic withholding, the Exchange Commission Form 8–K filed by KeySpan Public Service Commission re U.S. v. KeySpan, practice of pricing bids at artificially Corporation, May 4, 2006, Accession Number Case No. 10–cv–14l5 (Comments filed April 30, high prices, was permitted by the 0001062379–06–000054; KeySpan First Quarter 2010).

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would avoid the kinds of customer have been had the remaining 800 MW The foregoing is very important to this apportionment issues and transaction been bid into the auction: Court’s assessment of whether the $12 costs that might otherwise present Based on NYISO posted data, it appears million disgorgement cut amount insuperable obstacles to the process of that about 800 MW of NYC capacity went proposed to be imposed on KeySpan in attempting to fashion disgorgement unsold in the spot auctions for May and June this matter is one that can be said to be remedies intended to reach some three 2006. This implies higher prices in both the in the interest of justice, and therefore million electric ratepayers in the New NYC and statewide capacity markets, should be approved for entry of a Final York City market. compared to an auction where all available Judgment herein. NYC supplies had cleared. As to the proper amount of Moreover, the Court is not solely If all available NYC capacity had been sold, reliant on even such well-supported disgorgement that should be required of the NYC UCAP price would have dropped by KeySpan, there are available in the about $7.26/kW-month (from $12.71 to opinions as those advanced by Public record some professional estimates of $5.45). Service Staff and by Dr. Patton the harm that was done to the City In addition, the NYS UCAP price could estimating the excessive capacity 8 capacity market. There are also some have dropped by as much as 1.28kW month. charges imposed on City consumers. available figures from KeySpan that bear This preliminary analysis by DPS was There is at least one other extrinsic form of evidence that can readily be accessed to some degree on the same question. borne out in later estimates offered by from an incontrovertible source. These estimates and corporate the NYISO’s own Independent Market Monitor, Dr. David B. Patton: A well recognized economic analytic statements should provide guidance to tool in assessing antitrust damages is the the Court in exercising its judgment Prior to 2006, nearly all of the ICAP during and after test that examines concerning the adequacy of the [Installed Capacity] in New York City was market activity during the period of scheduled or sold in the NYISO capacity proposed settlement. illegal conduct and the period when In early 2006, KeySpan publicly markets. Beginning in January 2006, more than 1000 MW new capacity has been that activity came to an end. The NYISO expressed confidence that average City installed in NYC. Given that the marginal maintains extensive records of capacity capacity prices would in fact exceed the cost of selling capacity is close to zero for prices in the various auctions that it contractual level of $7.57, and observed most units, the amount of capacity sold in operates. Attached as Exhibit A to this that as of the first monthly summer New York City under the NYC Locality document is a summary of capacity capacity auction period in 2006, the Demand Curve would have increased by this clearing prices in the period between Zone J capacity price settled at $12.71 amount if the market were performing 2006, when the alleged conduct per kW-month. Clearly, such corporate competitively. However, the total ICAP sales actually fell slightly after 500 MW of new violating the Sherman Act began, during confidence concerning maintenance of capacity at Poletti became available in early the succeeding period, and after the capacity clearing prices was not 2006. This occurred because one incumbent action of the NYSPSC put a stop to the misplaced: as a dominant entity it was supplier reduced its sales by approximately conduct in question in early 2008 with in a position, even when acting the same amount as the new capacity at its Order mandating that KeySpan bid unilaterally, to make capacity prices Poletti. This supplier routinely offered the into the various NYISO capacity clear well above the contractual level bulk of this unsold Capacity into the Energy auctions as price taker. Exhibit A was established in the Morgan Stanley market, which indicates that it could have taken directly from the NYISO website, been sold in the Capacity market with little agreement. Regarding the gain additional cost. and these prices and other capacity attributable to the conduct challenged The unsold Capacity quantities increased price auction results from recent years here by DOJ as violative of the Sherman in May 2006 when an additional 500 MW of are publicly accessible there.10 Act, at least a portion of the benefits Capacity from the SCS/Astona Energy LLC Zone J is reflected in Exhibit A as were disclosed by the company itself: facility came online. ‘‘NYC’’ and the prices reflected therein KeySpan stated its gain attributable to The unsold Capacity in question was not are telling and directly confirm the the Morgan Stanley agreement was sold because the supplier offered the views of Dr. Patton on the effect of the $44.3 million in the period from May Capacity at a price that was higher than the conduct under scrutiny here. For Capacity Demand Curve price levels that 7 example, in the six-month 2006 summer through September of 2006. Given the would have allowed the Capacity to clear. In workings of the market clearing process, particular. the DGO supplier offered the capability period strip auction (May- the overall adverse impact on City Capacity at the level of its offer cap, which November), prices in NYC were $12.35 energy consumers flowing from the exceeded $12 per KW-month in the Summer per kW-month, and $12.37 in the practices described in the Complaint Capability Period. Had all Capacity been comparable period for 2007. However, was of course far larger. sold, the price during the May auction would by the summer strip auction of 2008, have cleared at less than $6 per KW-month.9 An initial New York State Department after the alleged illegal conduct had of Public Service (‘‘NYSDPS’’) analysis It is thus clear, as Dr. Patton states, been halted, the NYC auction price fell of the price level for the NYISO capacity that the withholding of capacity took to $6.50 per kW-month, and even in auctions early June of 2006 revealed the place, and moreover, that such 2009 it was $6.75. The pattern in the price to be in large part the product of withholding materially affected its monthly NYISO auction results is very a failure to bid some 800 MW into the price—more than doubling what would similar: the May and June auctions in May and June 2006 auctions. Having otherwise be the capacity market 2007 closed at $12.34 and $1 1.40 conducted a preliminary review of the clearing price. respectively, while the comparable auction numbers, NYSDPS results after the cessation of the market 8 Discussion presentation by NYSDPS, ‘‘In-City conduct challenged in the Complaint representatives indicated that economic Capacity Market Performance’’ at NYISO withholding appeared to have here were $6.52 and $6.49 respectively. stakeholder meeting of the ICAP Working Group, The NYISO spot auction for capacity effectively kept capacity prices June 12, 2006, available at: nyiso.com/public/ considerably higher than they would webdocs/committees/bicicapwg/meeting_ reveals a very similar pattern as well. materials/2006–06–12/ Armed with these numbers and the in_city_capacity_markey_performance_nydps.pdf. respective amounts of capacity affected 7 Interrogatory Response to DPS Request No. 75, 9 Affidavit of NYISO market Monitor Dr. David B. 1800 MW in the Morgan Stanley Subpart 14 in New York State PSC Case No. 06–M– Patton in FERC Docket Number ERO7–360–000, at 0878, relating to the proposed KeySpan-National page 4 of 19 (filed December 22, 2006)[emphasis agreement, and KeySpan’s own offered Grid merger (response dated September 21, 2006). added] capacity in the various NYISO auctions,

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one can readily ascertain at least an future as it has in the recent past. While evidence at FERC and at the NYISO, and informed estimate of the impact on FERC has markedly increased its examine the proposed Final Judgment Zone J consumers of the overcharges enforcement efforts in the period since with a view toward arriving at a result associated with the conduct here. the passage of the Federal Energy Policy that will be equitable and will advance the interests of justice. V. Role of the Justice Department Act of 2005, the record here also illustrates the continuing need for DOJ May 3, 2010 One final observation: NYCEDC and scrutiny of anticompetitive practices in the City are highly appreciative of the Respectfully submitted, the City’s energy markets. The /s/Michael I. Delaney involvement of the Department of substantial penalties available to Justice and its Antitrust Division in this Michael J. Delaney, Director—Energy address Sherman Act violations will Regulatory Affairs, matter, and commend their action in serve as a deterrent to market utilizing Sherman and Clayton Act City of New York, manipulation such as that seen here. remedies to address anticompetitive New York City Economic Development Continued vigilance by the Antitrust practices in the New York City energy Corporation, Division will also operate to discourage 110 William Street, 4th Floor, sector. As has been noted, the City energy illegal conduct, and will thereby New York, NY 10038, (212) 312–3787, and capacity markets remain highly enhance consumer welfare. [email protected]. concentrated and bear the classic VI. Conclusion indicia of an oligopoly market: few Attachment significant suppliers, high barriers to For the foregoing reasons, the Exhibit A—View Strip Auction entry, and accompanying high prices. NYCEDC and the City ask that the Court Summary Conduct similar to that outlined in the carefully review the record before it, Complaint here may well occur in the take judicial notice of publicly available BILLING CODE 4410–11–M

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BILLING CODE 4410–11–C ‘‘Company’’) hereby files these consent judgment in this case requires In the United States District Court for comments with respect to the settlement that KeySpan disgorge $12 million of the Southern District of New York agreement entered into between the the profits it gained from its illegal United States Department of Justice agreement. Civil Case No. 10–CIV–1415 (‘‘DOT’’) and KeySpan Corporation Unfortunately, however, the consent United States of America, Petitioner v. (‘‘KeySpan’’). KeySpan Corporation, Respondent. judgment does not provide for any of Comments of Consolidated Edison Company I. Preliminary Statement these disgorged funds to go the persons of New York, Inc. ultimately harmed by KeySpan’s illegal Dated: May 3, 2010 This case involves an antitrust conduct—the consumers subjected to violation that limited or restrained the artificially inflated prices. The Comments of Consolidated Edison competition in the market for electric Competitive Impact Statement (‘‘CIS’’) Company of New York, Inc. generating capacity in New York City does not appear to address this Pursuant to the Antitrust Procedures for almost two years. Con Edison alternative or explain why it was and Penalties Act, 15 U.S.C. 16(b)–(h) commends the DOJ for investigating and omitted. As a result of this shortcoming and in response to the March 4, 2010 condemning the agreement entered into the proposed consent judgment does not Notice published in the Federal by KeySpan. As DOJ has advised the acceptably satisfy the public interest Register, U.S. Department of Justice, Court, the likely effect of that agreement standard as required by the Tunney Act. Antitrust Division, United States v. was to increase the prices paid for Indeed, it leaves the victims of KeySpan Corporation, Proposed Final electricity by consumers in New York KeySpan’s antitrust violation without Judgment and Competitive Impact City. In fact, once the subject agreement any remedy. This Court should not Statement, 75 FR 9946 (Mar. 4, 2010), ceased to operate, the market price for approve the proposed consent judgment Consolidated Edison Company of New capacity indeed declined. DOJ until it is amended so that any monetary York, Inc. (‘‘Con Edison’’ or the Complaint at ¶ 33. The DOJ’s proposed payments made by KeySpan are

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distributed to the New York City retail violations set forth in the complaint York City from May 2006 through electricity consumers who were harmed including consideration of the public February 2008.’’ 75 Fed. Reg. at 9951. In by its antitrust violations. benefit, if any, to be derived from a other words, the KeySpan Swap determination of the issues at trial. Agreement enabled KeySpan to II. Background 15 USCS § 16(e)(1)(A) & (B) (emphasis unlawfully and artificially raise capacity On February 22, 2010, the DOJ added). prices in New York City to the entered into a consent judgment with As this statutory language makes detriment of New York’s retail KeySpan proposing to settle a civil clear, this Court must consider (i) electricity consumers. antitrust proceeding brought by DOJ to whether the Government has met its In New York, ‘‘sellers of retail remedy a violation of Section 1 of the duty of considering the appropriate electricity must purchase a product Sherman Act, 15 U.S.C. 1. The relief remedies, (ii) whether the remedies in from generators known as ‘installed provided in the proposed Final the proposed judgment cure the injuries capacity.’ ’’ 75 FR 9947. The capacity Judgment calls for KeySpan to pay the flowing to the general public from the price becomes part of the price of retail sum of $12 million to the United States violation, and (iii) whether the remedies energy that is charged to retail government. Final Judgment at III.A. are adequate. Unfortunately, the remedy consumers. Thus, any artificial increase This payment by KeySpan represents ‘‘a proposed in the consent judgment falls in the price of capacity in New York portion of its ill gotten gains from its short in each of these respects. City was initially borne by Load Serving recent illegal behavior.’’ 75 FR 9951. The settlement is not in the public Entities or ‘‘LSEs’’ (i.e., retail sellers) and According to the DOJ, this illegal interest because it does not provide then passed on to their retail customers. behavior consisted of KeySpan entering relief to the individuals that have been As DOJ itself states, the ultimate effect into an anticompetitive agreement that harmed by KeySpan’s actions under the of the KeySpan Swap Agreement ‘‘was would raise electricity prices to New KeySpan Swap Agreement. The DOJ’s to increase capacity prices for the retail York City consumers: ‘‘KeySpan entered CIS makes it explicit that the electricity suppliers who must purchase into an agreement in the form of a individuals ultimately harmed by capacity, and in turn, to increase the financial derivative [‘the KeySpan Swap KeySpan’s actions are New York City’s prices consumers pay for electricity.’’ 75 Agreement’] essentially transferring to electricity consumers who were FR 9949. As a generator in New York KeySpan, the largest supplier of electric subjected to higher prices for electricity City, KeySpan knew that LSEs, like Con generating capacity in the New York by reason of KeySpan’s illegal conduct. Edison, were required to buy capacity City market, the capacity of its largest While the DOJ commendably from the market on behalf of their retail competitor. 75 Fed. Reg. at 9947. The condemned KeySpan’s anticompetitive electric customers. In fact, the New York DOJ’s CIS states that ‘‘[t]he likely effect actions, which artificially raised New Independent System Operator of the Swap Agreement was to increase York City capacity prices, and sought an (‘‘NYISO’’) ‘‘requires retail providers of capacity prices for the retail electricity equitable remedy disgorging profits, its electricity to customers in the New York suppliers who must purchase capacity, proposed remedy is inadequate in that City region to purchase 80% of their and, in turn, to increase the prices it provides for KeySpan to pay the $12 capacity from generators in that City consumers pay for electricity.’’ 75 FR at million to the U.S. Treasury rather than region.’’ 75 Fed. Reg. at 9947. Thus, 9947. to the individuals who ultimately were KeySpan knew that the increases in the harmed. price of capacity caused by the KeySpan III. The Proposed Consent Judgment Unless these funds are paid to the Swap Agreement were going to be paid, Fails To Satisfy Tile Public Interest consumers who were injured, the effects and, in fact were paid, for by New York Because It Fails To Provide for a of the violation stated in the CIS are not City LSEs and their retail electric Remedy to the Electric Consumers cured and the proposed consent customers. Victimized by Tile Antitrust Violation judgment is inadequate. Without Thus, unlike objectors to the remedies Before entering a proposed consent providing relief to these parties, the proposed in United States v. Microsoft judgment in antitrust cases brought by settlement fails to satisfy the public Corp., 56 F.3d 1448 (D.C. Cir. 1995), the United States, a reviewing court interest standard. who argued that additional remedies must ‘‘determine that the entry of such As noted above, the effects of the should be imposed for injuries not judgment is in the public interest.’’ 15 antitrust violation on New York City pleaded in DOJ’s Complaint, Con U.S.C. 1 6(e)(1). In making that electricity consumers are acknowledged Edison’s comments here focus on the determination, the court is required to clearly in DOJ’s own filings with the fact that the proposed decree does not consider: Court. According to the DOJ, the remedy the injury that DOJ specifically (A) The competitive impact of such KeySpan Swap Agreement unlawfully identifies in its Complaint and CIS. Nor judgment, including termination of restrained competition in New York does Con Edison in effect seek any alleged violations, provisions for City’s electric capacity market because it change in the Complaint as filed. All enforcement and modification, duration enabled KeySpan, which already that Con Edison requests is that the of relief sought, anticipated effects of possessed market power in the New Court exercise its powers in equity to alternative remedies actually York City capacity market, to ‘‘enter into modify a proposed decree whose considered, whether its terms are an agreement that gave it a financial ‘‘impact * * * upon the public ambiguous, and any other competitive interest in the capacity of Astoria— generally and individuals alleging considerations bearing upon the KeySpan’s largest competitor.’’ 75 FR at specific injury from the violations set adequacy of such judgment that the 9947. The Keyspan Swap Agreement forth in the complaint’’ is manifestly to court deems necessary to a ‘‘effectively eliminated KeySpan’s fail to remedy those injuries. 15 USCS determination of whether the consent incentive to compete for sales’’ ’ of § 16(e)(1)(B). judgment is in the public interest; and capacity. 75 Fed. Reg. at 9948. The net Equity, along with the standards for (B) the impact of entry of such result ‘‘was to alter KeySpan’s bidding reviewing this settlement, calls for those judgment upon competition in the in the NYC Capacity Market auctions.’’ consumers that were the ultimate relevant market or markets, upon the 75 Fed. Reg. at 9948. ‘‘But for the Swap, victims of the KeySpan Swap public generally and individuals installed capacity likely would have Agreement to be the beneficiaries of alleging specific injury from the been procured at a lower price in New whatever relief is provided for in the

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consent judgment (the $12 million of the antitrust violation was ‘‘to does not interfere with a court’s payment). DOJ acknowledges that there increase the prices consumers pay for traditional equity powers, unless is no adequate remedy here at law for electricity.’’ Equitable remedies are Congress clearly makes that ‘‘desire individuals harmed by KeySpan’s needed because they ensure ‘‘that plain.’’ Hecht Co. v. Bowles, 321 U.S. antitrust violation. 75 FR 9951. The substance will not give way to form 321, 329–30 (1944) (‘‘The essence of reason is that private individuals could [and] that technical considerations will equity jurisdiction has been the power not bring an antitrust suit here due to not prevent substantial justice from * * * to do equity and to mould each the barrier of the filed rate doctrine. See being done.’’ Pepper v. Littan, 308 U.S. decree to the necessities of the Arkansas La. Gas Co. v. Hall, 453 U.S. 295, 305 (1939); Chase Manhattan Bank particular case.’’). The filed rate 571, 577 (1981); Keogh v. Chicago & v. Brown & E. Ridge Partners, 243 doctrine, in short, has no application to NW. Ry. Co., 260 U.S. 156 (1922). A.D.2d 81, 84 (NY. App. Div. 4th Dep’t the equitable distribution of the Where, as here, no remedy exists at law, 1998) (‘‘a court of equity looks to the disgorged funds as a remedy in this courts have broad authority to design substance of the action, not its form’’); case. equitable relief that ensures fairness in see also Hechinger Liquidation Trust v. Finally, it is not a bar to providing light of the circumstances. BankBoston Retail Fin. Inc., 287 B.R. relief to consumers that the precise As the Supreme Court has made clear: 145, 151–52 (D. Del. 2002) (citing amount of harm to them has not been ‘‘[t]he essence of a court’s equity power Pepper and Chase in concluding that calculated. KeySpan’s conduct may lies in its inherent capacity to adjust ‘‘the court should not employ a have caused much greater injury than remedies in a feasible and practical way mechanical and formalistic’’ approach). the $12 million it has agreed to disgorge. to eliminate the conditions or redress The DOJ does not explain in the CIS Equity does not allow a party to take the injuries caused by unlawful action. why it did not address the provision of advantage of imprecision that a Equitable remedies must be flexible if relief to New York City consumers. wrongdoer is responsible for creating. these underlying principles are to be Though it cites to the filed rate doctrine, While KeySpan’s wrongdoing may have enforced with fairness and precision.’’ DOJ appears to recognize that the filed made it difficult to calculate the extent Freeman v. Pitts, 503 U.S. 467, 487 rate doctrine does not apply to the of the harm to consumers, the DOJ’s (1992) (emphasis added). For example, disgorgement payments involved in the duty is to protect the general public, and when courts employ the ‘‘equitable proposed consent judgment. Nor does its own findings that the likely effect of remedy’’ of piercing the corporate veil, the filed rate doctrine present any the violation was to raise prices, make they are not ‘‘imposing [ ] liability’’ but barrier to including in the judgment an it apparent that an adequate equitable rather ‘‘remedying the fundamental equitable remedy in the form of remedy requires distribution of the unfairness that would [otherwise] payments to New York City consumers. disgorged funds to the consumers that result.’’ Trustees of Nat’l Elevator The profits required to be disgorged by were harmed. Industry v. Lutyk, 332 F.3d 188, 193 n.6 the proposed consent judgment are Such relief would, at least, partially (3d Cir. 2003) (emphasis added, internal KeySpan’s profits stemming from the offset the economic damage inflicted ‘‘ quotations omitted). [T]hus, the theory KeySpan Swap Agreement, not from its upon New York City’s electricity of harm alleged may affect the scope of sales of electric capacity under a filed consumers. Accordingly, any relief in ’’ the remedy that equity demands. Id; rate. The KeySpan Swap Agreement is the form of monetary payments see also Taylor v. FTC), 339 F. App’x. a private financial contract between provided for by this consent judgment ‘‘ 995, 999 (Fed. Cir. 2009) ( district KeySpan and the financial services should be for the benefit of New York court’s equity jurisdiction provides company which was not filed with City’s retail electric consumers. One broad and flexible power to deliver FERC. The KeySpan Swap Agreement is method to effectuate such relief would justice in unique factual circumstances thus not part of the filed rate.1 be to provide for payments to be made ’’ * * * to [the] court’s best estimation ). to New York City LSEs in proportion to In the circumstances of this case, the Accordingly, the filed rate doctrine is the amount of capacity that they theory of harm (i.e., the competitive not a bar to providing relief to procured during the May 2006 through injury) involves capacity prices that consumers in this case. Though the February 2008 time period, with the have been artificially increased as a practical effects of restitution and proviso that such payments be result of the KeySpan Swap Agreement. disgorgement differ they are both distributed to end use consumers in In order to fairly redress that injury, the equitable remedies. Restitution remedy, even if limited, should flow to ultimately flows to the injured party, proportion to their relative demand the injured retail electricity consumers but it is neither a form of ‘‘damages’’ nor during this period. Alternatively, the who paid those higher prices. a means of providing ‘‘compensation for Court could direct the NYISO to No basis exists on formalistic grounds past injuries.’’ See Ellett Bros., Inc. v. equitably distribute the payments to refrain from providing a remedy to US. Fidelity & Guaranty Co., 275 F.3d among consumers. ‘‘ the consumers injured by KeySpan’s 384, 388 (4th Cir. 2001) ( Restitution IV. Conclusion antitrust violation by distributing to and disgorgement require payment of them the $12 million disgorged by defendant’s ill-gotten gains, not Con Edison respectfully requests that KeySpan from its illegal scheme. No compensation of the [injured party’s] the Court find that the proposed consent party should be heard to rebuff this loss.’’). Moreover, courts have judgment is not in the public interest appropriate relief by arguing that the interpreted statutes in a manner that until and unless any monetary KeySpan Swap Agreement was with a payments disgorged by KeySpan are counter-party, which entered into that 1 It is the NYISO Market Administration and used to provide relief to New York Control Areas Services (‘‘Services Tariff’’) that is the City’s electricity consumers. transaction in arms-length bargaining, filed rate. All of the rules, procedures and pricing rather than consumers. That would exalt formulas associated with the NYISO’s capacity Dated: May 3, 2010, New York City. form over substance. It would also auctions are contained in the Services Tariff which Respectfully submitted, ignore the impact that the KeySpan is on file at the Federal Energy Regulatory Consolidated Edison Company of New York, ‘‘ ’’ Commission ( FERC ). Thus, the filed rate is Inc. Swap Agreement had on the New York encompassed within the pages of the Services City capacity market. As the DOJ’s own Tariff. It does not include the KeySpan Swap By: Neil H. Butterklee, Assistant General CIS explicitly states, the ultimate effect Agreement which is an extrinsic private contract. Counsel, Consolidated Edison Company

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of New York, Inc. ‘‘* * * representing the interests of how, in light of these gains, a $12 April 30, 2010 consumers of the state before Federal, million settlement would adequately BY ELECTRONIC MAIL state and local administrative and recover KeySpan’s unjust enrichment regulatory agencies. 3 Further, pursuant and deter such illegal practices. In Donna N. Kooperstein, Chief, to Executive Order No. 45, the NYSCPB addition, the managers who perpetuated Transportation, Energy, and is authorized to: this illegal conduct will likely suffer no Agriculture Section, Antitrust Act as an advocate before other state Division, U.S. Department of negative consequences as a result of the and Federal entities by: settlement. Indeed, it is likely they Justice, 450 Fifth Street, NW., Suite (a) representing the interests of 8000, Washington, DC 20530. received hefty bonuses as the illicit consumers in proceedings of Federal, revenues began rolling in. Further, at Re: United States v. KeySpan state and local administrative and the very least, the names of the Corporation; Proposed Final regulatory agencies where the State managers who approved or condoned Judgment, Stipulation and Director deems the proceeding to affect this behavior should be made public. Competitive Impact Statement the interest of consumers. The proposed Final Judgment is also Dear Ms. Kooperstein: The New York The NYSCPB has also been flawed because the people harmed by State Consumer Protection Board designated by the New York State the Company’s conduct would not (‘‘NYSCPB’’) appreciates the invitation, Independent System Operator, Inc. receive any benefit from its remedy. provided in the Federal Register dated (‘‘NYISO’’) as the ‘‘Statewide Consumer Transferring $12 million to the Federal March 4, 2010, to discuss the Advocate,’’ representing the interests of government would produce no impact appropriateness of the proposed Final the State’s residential, small business on the economic lives of New York City Judgment, Stipulation and Competitive and farm electricity users in the NYISO energy consumers. A fairer and Impact Statement that have been filed governance process. The Agency has appropriate course of action would be to with the United States District Court for fully participated in the NYISO’s return the ill-gotten gains to the people the Southern District of New York in stakeholder process since the inception from whom they were taken, primarily United States of America v. KeySpan of the organization in the late 1990’s Corp., CMI Case No. 10–CIV–1415. The and has made numerous filings with the the electric customers in New York City NYSCPB is pleased that the United FERC. (Zone J of the capacity market operated States Department of Justice (‘‘USDOJ’’) by the NYISO.) One way this could be Comments has pursued the improper collusive accomplished would be to provide a behavior of KeySpan Corporation The Competitive Impact Statement credit to load serving entities within (‘‘KeySpan’’ or ‘‘Company’’) in New York asserts that the ‘‘proposed Final Zone J that could be used to offset the City’s capacity market.1 For almost two Judgment remedies [KeySpan’s] cost of current purchases. The NYSCPB years, KeySpan was able to maintain violation by requiring KeySpan to recognizes, however, that it would be artificially high capacity prices in New disgorge profits obtained through the the NYISO’s responsibility to York City by controlling, through a third anticompetitive agreement.’’ The implement such a credit mechanism. party, the bids of its main competitor NYSCPB respectfully disagrees. We recommend that the Court direct and receiving that competitor’s capacity According to the NYSPSC, the KeySpan USDOJ to contact the NYISO to discuss revenues. The filed documents call this Swap unjustly enriched the Company the feasibility of implementing this arrangement ‘‘the KeySpan Swap.’’ by more than $68 million and imposed mechanism. The NYSCPB believes that, for two continued high electricity costs on If the credit mechanism proves reasons, entry of the proposed Final consumers in amounts that could total impractical, as a substitute, we Judgment is not in the public interest. hundreds of millions of dollars. Viewed recommend using the money for First, KeySpan has agreed to disgorge in this context, disgorgement of $12 expansion of energy efficiency programs only $12 million, when the evidence is million will not deter the Company or in Zone J. Two New York State entities overwhelming that the Company’s illicit other companies from engaging in administer energy efficiency programs conduct burdened New York Cit’s anticompetitive conduct in the future. for low-income New Yorkers. The New energy consumers by at least $68 Not only is the penalty less than 20 York State Division of Housing and million and perhaps as much as several percent of the ill-gotten gains, but it is Community Renewal administers the hundred million dollars in over so small compared to the Company’s Federally funded Weatherization payments.2 Second, the ill-gotten gains annual earnings that. shareholders Assistance Program and the New York should be paid to the victims of would not notice it. Instead, the State Energy Research and Development KeySpan’s improper behavior, New settlement should reflect KeySpan’s Authority administers the state-funded York City’s energy consumers, not to the wrongful gains from the swap, its EmPower New York program. Annual Federal government. wrongful gains from its capacity sales and other reports by independent third- outside the swap, and the harm to parties demonstrate that both of these Statement of Interest consumers due to high capacity prices entities ably administer well-designed The NYSCPB is an agency in the that were caused by the swap. energy efficiency and weatherization Executive Branch of New York State USDOJ has not sustained its burden to programs that lower the energy burden government statutorily charged with provide sufficient evidence for the Court for low-income New Yorkers and reduce to determine that a $12 million energy prices for everyone by lessening 1 USDOJ’s action is especially commendable settlement is adequate reimbursement demand. The NYSCPB urges the Court when compared to the failure of the Federal Energy for KeySpan’s unjust enrichment, or to direct USDOJ to discuss with these Regulatory Commission (FERC’’) to take any action to protect consumers from KeySpan’s conduct. deter such anti-competitive conduct in State entities the process by which the 2 The NYSCPB’s comments rely on data contained the future. The NYSCPB agrees with the funds could be transferred. We in the affidavit accompanying the comments of the NYSPSC that USDOJ should be required recommend transfer of the funds to New York State Public Service Commission to disclose the total amount of these two State entities in equal shares, (‘‘NYSPSC’’). The NYSCPB supports the analyses and recommendations in the NYSPSC’s comments KeySpan’s wrongful gains, and explain with the qualification that the funds as well as those in the comments of the City of New must be used to expand their ongoing York. 3 New York Executive Law § 553(2)(d). work in Zone J.

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Conclusion of the delivered price of retail electricity would seem to elevate the danger that The proposed Final Judgment should is attributable to the wholesale cost of New York City load serving entities, and be rejected because it is not in the generation. ultimately the public could suffer public interest. The Court should direct As a state public utility regulatory competitive injury without remedy or urge the parties to increase the amount agency in a state that has, for more than the protection of the laws of New York of ill-gotten gains to be disgorged and a decade, supported both wholesale and State, or of the United States. That would seem to elevate the seriousness of require all disgorged funds to inure to retail competition in the electric power the defendant’s offense. Moreover, it is the benefit of New York City energy generation markets, we are deeply not clear that the facts in this case are consumers. concerned by allegations contained in limited in time and place; while the Thank you for consideration of our the complaint that appear to tariff rules in question in this case apply comments in this matter. conclusively establish the existence of a sophisticated multi-year effort by the to a specific geographic location and Respectfully yours, defendant to evade competition in the time period, the general method Mindy A. Bockstein, New York installed capacity market, employed by the defendant to avoid Chairperson and Executive Director. resulting in higher retail electricity competition (i.e., the purchase of a Tariq N. Niazi, prices for retail users of electricity. The financial interest in the operations of a Director of Utility Intervention. effort appears to have been carefully competitor through a third party) is not Saul A. Rigberg, calculated and executed so as to avoid so limited. Intervenor Attorney. action by New York state authorities, Because the PaPUC is a state May 17, 2010 Federal regulators and antitrust regulatory agency with limited Donna N. Kooperstein, Chief, enforcers. jurisdiction and power under Transportation, Energy & This concern is heightened by the fact Pennsylvania law, we must rely heavily Agriculture Section. Antitrust that the Federal Energy Regulatory upon the effective enforcement of the Division. United States Department Commission, which has regulatory antitrust Jaws of the United States to of Justice, 450 Fifth Street, NW., jurisdiction over the New York City protect the public and the competitive Suite 8000, Washington, DC 20530. wholesale generation market, was wholesale and retail electric generation apparently unable to detect or deter the markets. RE: Comments of the Pennsylvania The PaPUC understands that there has Public Utility Commission on behavior recited in the instant 2 been a degree of difficulty associated United States v. Keyspan Complaint. As the complaint recites, during the 2006–2009 period, Keyspan with detecting and prosecuting the Corporation Proposed Final actions recited in this case; we do not Judgment and Competitive Impact was faced with the prospect of new competition in the New York City oppose the proposed Stipulation and Settlement, 1O–civ–1415 (USDC— Final Judgment, although we cannot Southern District, New York) capacity market which had the prospect of substantially reducing its future state whether the equitable and Dear Ms. Kooperstein: The capacity revenues. Unable to purchase financial penalties in the Final Pennsylvania Public Utility control of its competitor and unwilling Judgment result iii the full remedy of Commission 1 (‘‘PaPUC’’) herewith files to risk head-to-head competition, injury to the public from execution of these comments under the provisions of Keyspan purchased a financial interest the scheme. the Tunney Act, 15 U.S.C. 16(d), with This proceeding demonstrates that in the capacity sales of its competitor respect to the Proposed Final Judgment even if conduct inimical to competition through a third party (‘‘Keyspan Swap’’). and Competitive impact Settlement in is not effectively proscribed under the In turn, the third party sought and the matter of United States v. Keyspan Federal Power Act, it may result in obtained a hedging agreement with the Corporation presently before the United prosecution and serious consequences competitor Astoria to reduce its States District Court for the Southern under the antitrust laws of the United counterparty risk. The result was to District of New York, Civil Action 10– States. The PaPUC and other public and make Keyspan indifferent with respect civ–1415. private entities with a critical stake in to competition, as it would receive In 1997, the General Assembly the success of wholesale electric revenue either through bidding into the enacted the Electric Generation generation competition have benefitted capacity market or through its swap. Customer Choice and Competition Act, from studying the facts of this case and It appears from the factual recitations 66 Pa.C.S. § 2801 et seq, restructuring will be better able to detect and deter of the Complaint that Keyspan’s scheme Pennsylvania’s traditional vertically similar schemes in the future. had a high likelihood of success.3 This integrated electric utilities and opening Lastly, the PaPUC would like to convey our thanks to the U.S. up retail markets to competition. As 2 In 2007, the New York 150 sought, pursuant to Pennsylvania is largely, and soon will Section 205 of the Federal Power Act to file Department of Justice—Antitrust be wholly within the control area of PJM capacity mitigation and market remediation tariffs Division for enforcing competition law interconnection, L.L.C., a FERC- to address perceived exercises of market power in in wholesale electricity markets and the New York City capacity market. FERC rejected sanctions against a scheme that jurisdictional Regional Transmission the proposed behavioral remediation tariffs and Organization, the competitiveness of instead directed a staff investigation. New York manifestly reduced competition and Pennsylvania’s retail electric markets is Independent System Operator. Inc., 118 FERC ¶ raised prices in the New York City heavily dependent on the competitive 61,182 (2007) (‘‘2007 FERC Order’’). In the staff capacity market. review of the allegations filed with respect to the results of the PJM electric generation New York City capacity market, it was apparently Very truly yours, wholesale markets. Approximately 80% concluded, inter a/ia, that while Keyspan’s actions Bohdan R. Pankiw, did not violate any provision tariff or of the Federal Chief Counsel, Pennsylvania Public Utility 1 The PaPUC is a state administrative commission Power Act, there was a potential problem with Commission. created by the General Assembly of the buyer’s market power, (i.e., a potential for exercise Commonwealth of Pennsylvania and charged with of monopsony), and directed the New York ISO to cc: James H. Cawley, Chairman the regulation of electric utilities, transmission file tariffs to address this purely theoretical siting and licensing of generation suppliers within concern. transactions from regulatory review by seeking to the Commonwealth of Pennsylvania. 66 Pa.C.S. A., 3 The facts appear to establish that there was a characterize them as ordinary and usual business § 101, et seq. sophisticated effort by Keyspan to immunize its transactions.

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Tyrone J. Christy, Vice Chairman (‘‘NYISO’’).1 Keyspan achieved this price Con Edison estimated the inflated costs Wayne E. Gardner, Commissioner inflation using a strategy of economic in 2006 to be approximately $159 Robert F. Powelson, Commissioner withholding, by bidding the maximum Million.8 Of that amount, $119 million May 14, 2010 possible amount in order to drive up the was paid by New York City area Donna N. Kooperstein, Chief, market clearing price paid to all sellers utilities, and $39 million was paid by Transportation, Energy, arid in the NYISO in-City capacity auction utilities in the rest of the state. The Agriculture Section, Antitrust market. Keyspan also entered into a amount of capacity overcharges for 2007 Division, U.S. Department of financial derivative swap contract with and until NYISO rules were changed in Justice, 450 Fifth Street, NW., Suite Morgan Stanley, which functioned to early 2008 have not been identified. 8000, Washington, DC 20530 create an interest in sales of a major AARP urges DOJ not to settle the Re: Public Notice Inviting Tunney Act competitor, providing a stream of action as proposed and urges the Court Comments in United States v. payments to KeySpan to offset not to approve the Proposed Final Keyspan, SDNY Civil Action No. diminished sales due its withholding Judgment. AARP’s reasons for 10–cv–1415 (WIIP), 75 Fed. Reg. strategy to raise prices. disapproval, set forth in greater detail 9946, March 4, 2010. On the same day the Complaint was below, include, foremost, the lack of any filed, DOJ and Keyspan filed and moved monetary remedy or other discernible Dear Ms. Kooperstein: AARP submits for entry of a Proposed Final Judgment benefit for injured consumers, and the these comments in response to the that would settle and discontinue this absence of a credible deterrent that above-referenced notice regarding the action. Under the terms of the Proposed would discourage others from exercising proposed settlement of United States v. Final Judgment, Keyspan would pay $12 market power in the NYTSO markets in Keyspan, SDNY Civil Action No. 10–cv– million to the U.S. Treasury, with no violation of the antitrust laws. Also, 1415 (WHP). AARP is a nonpartisan, admission of any wrongdoing, and the there is no factual foundation in the nonprofit organization that helps people Complaint would be dismissed. The record over the age of 50 to have Proposed Final Judgment would provide • to determine appropriateness of the independence, choice, and control in no monetary remedy or other benefit for $12 Million disgorgement of profits; ways that are beneficial to them and the consumers who paid higher prices • to determine the portion of the society as a whole.3 AARP has millions for electricity due to the antitrust law profits received by KeySpan that would of members, including more than violation described in the Complaint.2 be disgorged; 2,500,000 members who reside in New As required by the Antitrust Procedures • to quantify the harm to markets and York.4 AARP is greatly concerned about and Penalties Act (the ‘‘TunneyAct’’), 15 consumers caused by the antitrust law the threats to health and safety of U.S.C. 16(e)–(f), DOJ filed a Competitive violation described in the Complaint; vulnerable citizens caused by New impact Statement recommending • to determine the basis for arriving at York’s high electricity costs.5 Because approval by the Court of the Proposed the $12.1 million partial disgorgement the cost of utilities has skyrocketed, Final Judgment. The Tunney Act and its appropriateness; many low and middle-income families requires public notice and an • to clearly identify the swap contract and older people must now choose opportunity for public participation and and its terms which violated the between paying their energy bills for input to both DOJ and the Court prior antitrust laws; and heating and cooling and paying for other to the Court’s review and decision on • to determine if the settlement is essentials such as food and medicine. the settlement of an antitrust case. adequate to redress the antitrust law AARP works to protect consumers from AARP members in New York state violation that occurred. excessive rates and charges such as were were adversely affected by the inflated The public interest may be harmed by set and charged by KeySpan and passed capacity charges due to the alleged the settlement if, instead of the intended through to consumers. As consumers, antitrust violations.6 The inflated deterrent effect, it sends a message that AARP members depend upon the charges for capacity were paid in the antitrust violators who inflate prices protection of the antitrust laws from the first instance by load-serving utilities, through the exercise of market power in unlawful exercise of monopoly or such as Consolidated Edison Company NYISO markets can (i) escape serious market power and the enforcement of of New York, Inc. (‘‘Con Edison’’), which consequences, (ii) have no obligation to the antitrust laws by DOJ and the courts. then passed through all the excessive return illegally obtained profits to those The United States Department of charges to retail customers. ‘‘The injured by the antitrust violation Justice Antitrust Division (‘‘DOJ’’) filed a exercise of supplier market power, described in the Complaint, (iii) make Complaint against KeySpan Corporation through economic withholding, leads to no admission of wrongdoing, and (iv) (‘‘KeySpan’’) on February 22, 2010. The higher capacity prices, and a wealth disgorge only an unstated portion of 7 Complaint alleges violation of Section 1 transfer from consumers to suppliers.’’ their profits from their unlawful of the Sherman Act in connection with scheme. Also, the proposed settlement 1 KeySpan’s successful efforts to inflate The Complaint is available at http:// may tacitly condone the future use by www.justice.gov/atr/cases/f255500/255507htm. others of private financial derivative prices paid for wholesale electric 2 The Proposed Final Judgment is available at capacity from May 2006 to February http://www.justice.gov/atr/cases/f255500/ swap contracts to compensate sellers 2009 in a spot market operated by the 2555O9.htm. New York Independent System Operator 6 ‘‘Every Con Ed customer in the five boroughs Company of New York, Inc., Orange and Rockland overpaid an average total of at least $40 over two Utilities, Inc., Mutliple Intervenors and the City of years during a price-fixing scheme set up by the New York, in FERC Docket No. ER07–360, Re New 3 For more information about AARP see http:// owners of a giant Queens power plant, the feds York Independent System Operator, available at www.aarp.org/. charge in a court case that would let the alleged http://elibrary.ferc.gov/idmws/common/ 4 For more information about AARP’s New York gougers get away with most of the gains.’’ Bill opennat.asp?fileID=11248666. state office, see http://www.aarp.org/states/ny/. Sanderson, $157 M Power Abuse, N.Y. Post, March 8 See Motion to Comment of Consolidated Edison 5 New York residential electric rates are currently 9, 2010, available at http://www.nypost.com/f/ Company of New York, Inc., etc., Re New York third highest in the nation, second only to Hawaii printlnews/local/ Independent System Operator, FERC Docket No. and Connecticut. Energy Information Agency, power_abuse_SgLN9psbhjopRMEGU68fgK. ER07–360 (Jan. 27, 2009), p. 2 and Affidavit of Electric Power Monthly, April, 2010, Year to Date, 7 Affidavit of Peter Cramton, Ph.D., Feb. 8, 2007, Stuart Nachmias, ¶ 13–14, available at http:// available at http://www.eia.doe.gov/cneaf/images/ attached as Exhibit A to Answer and Request for elibrary.ferc.gov/idmws/common/ xls.gif. Leave to File Answer of Consolidated Edison opennat.asp?fileID=11236060.

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who employ anomalous withholding or Sherman Act 9 by adopting an economic One of the conditions of the swap bidding strategies to exert market power withholding strategy in the NYISO contract provided for its termination if and inflate clearing prices in the NYISO capacity market—bidding high to drive the closing for the purchase of the or other organized electricity spot clearing prices up. Attendant to the competitor power plant by Astoria markets elsewhere in the nation. withholding strategy was the possible Generating did not occur. The swap Information filed in other proceedings consequence that not all its capacity contract is not in the record of this case suggests that the amount of would be sold at the maximum price but an excerpt is available in a FERC disgorgement is not adequate, that the that KeySpan bid, and that other filing made by Con Edison. settlement will not deter use of private competitors who bid lower would make Because all sellers are paid the same derivative contracts to support sales and receive the high price set by market clearing price in the NYISO anomalous bidding in NYISO markets, KeySpan. To compensate itself for lost capacity market auctions, a single seller and that the requisite factual foundation sales due to its withholding strategy, who achieves a higher clearing price needed to support the proposed KeySpan entered into a financial through an unlawful scheme ensures settlement is absent. At a minimum, derivative swap contract, which in that all sellers reap the benefit of that further proceedings are needed to effect gave it a financial interest in the inflated price, with the consequence develop an adequate factual record capacity sales of a major new that every megawatt of electric capacity upon which it would be possible for the competitor. According to the Complaint: sold, even by those sellers not Court to determine whether a proposal On January 18, 2006, [KeySpan] and participating in the scheme, is to compromise this antitrust action is in a financial services company executed overpriced, to the detriment of the public interest. an agreement (the ‘‘KeySpan Swap’’) that consumers. The Complaint does not No Sufficient Factual Foundation ensured that KeySpan would quantify the amount of higher prices Exists to Support a Conclusion That the On January 18, 2006, [KeySpan] and obtained through KeySpan’s scheme or Proposed Settlement Is a Reasonably a financial services company executed the attendant cost borne by consumers. Adequate Remedy or in the Public an agreement (the ‘‘KeySpan Swap’’) that The Complaint simply alleges that Interest ensured that KeySpan would withhold ‘‘KeySpan had revenues of The Tunney Act proceeding is substantial output from the New York approximately $850 million in 2006 and critically important because it tests, City electricity generating capacity $700 million in 2007 from the sale of through public participation and the market * * *. The likely effect of the energy and capacity at its Ravenswood sunlight of public scrutiny, whether an KeySpan swap was to increase prices for facility.’’ Complaint, ¶ 6. The Complaint adequate factual foundation exists to the retail electricity suppliers who must does not indicate the portion of these support a finding that the public interest purchase capacity, and, in turn, to KeySpan revenues attributable to the would be advanced if a civil antitrust increase the prices consumers pay for illegal scheme. Nor does the Complaint case brought by the United States is electricity. indicate the total NYISO capacity settled through compromise with the Complaint, page 1. The contract was market revenue or the portion of that alleged violator. The Tunney Act between KeySpan and Morgan Stanley, which was inflated due to KeySpan’s scheme and ultimately paid by provides, in relevant part: and Morgan Stanley entered into a 11 Before entering any consent judgment reciprocal financial derivative consumers. Despite the absence of any indication proposed by the United States under arrangement with Astoria Generating, a in the Complaint as to the amount of this section, the court shall determine major new competitor of KeySpan.10 total damage to markets and consumers that the entry of such judgment is in the through the inflated capacity prices, and public interest. For the purpose of such 9 ‘‘Every contract, combination in the form of trust despite the absence of any assertion determination, the court shall consider or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign regarding KeySpan’s share of those (A) the competitive impact of such nations, is declared to be illegal. Every person who inflated charges, the DOJ Competitive judgment, including termination of shall make any contract or engage in any Impact Statement asserts: alleged violations, provisions for combination or conspiracy hereby declared to be The proposed Final Judgment enforcement and modification, duration illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not remedies this violation by requiring of relief sought, anticipated effects of exceeding $100,000,000 if a corporation, or, if any KeySpan to disgorge profits obtained alternative remedies actually other person, $1,000,000, or by imprisonment not through the anticompetitive considered, whether its terms are exceeding 10 years, or by both said punishments, agreement.12 ambiguous, and any other competitive in the discretion of the court.’’ 15 U.S.C. 1. 10 ‘‘On January 18, 2006, KeySpan entered into an How can it possibly be said the considerations bearing upon the International SWAP Dealers Association Master proposed settlement ‘‘remedies this adequacy of such Agreement for a fixed for float unforced capacity (B) the impact of entry of such financial swap (the ‘‘Agreement’’) with Morgan equal to the product of (a) the Notional Quantity judgment upon competition in the Stanley Capital Group Inc. (‘‘Morgan Stanley’’). The and (b) the absolute value of such price difference. relevant market or markets, upon the Agreement has a three year term that began on May This derivative instrument does not qualify for 1, 2006. The notional quantity is 1,800,000kw (the hedge accounting treatment under SFAS 133 and is public generally and individuals ‘‘Notional Quantity’’) of In-City Unforced Capacity subject to fair value accounting treatment; although alleging specific injury from the and the fixed price is $757/kWmonth (‘‘Fixed currently there is no observable market reference to violations set forth in the complaint Price’’), subject to adjustment upon the occurrence value this derivative instrument. As noted, this is of certain events. Cash settlement occurs on a a financial derivative instrument and is unrelated including consideration of the public monthly basis based on the In-City Unforced to any physical production of electricity’’ Keyspan benefit, if any, to be derived from a Capacity price determined by the relevant New Form 10–Q, Annual Report, June 30, 2006, available determination of the issues at trial. York Independent System Operator (‘‘NYISO’’) Spot at http://google.brand.edgar-online.com/EFX_dll/ 15 USC 16(e)(l). As shown below, the Demand Curve Auction Market (‘‘Floating Price’’). EDGARpro.dll?FetchFilingHTML1?ID=45704O2& For each monthly settlement period, the price SessionID=35GoWWvvg9LHL17. necessary foundation of record support difference equals the Fixed Price minus the Floating 11 As discussed infra, there are indications that needed to answer even the most basic Price If such price difference is less than zero, the price of capacity was increased by KeySpan’s questions about the proposed settlement Morgan Stanley will pay KeySpan an amount equal gambit by approximately $157 million in 2006. is lacking. to the product of (a) the Notional Quantity and (b) 12 DOJ Competitive Impact Statement, p. 8. The Complaint filed by DOJ alleges the absolute value of such price difference. (Emphasis added). The Competitive Impact Conversely, if such price difference is greater than Statement is available at http://www.justice.gov/atr/ that KeySpan violated Section 1 of the zero, KeySpan will pay Morgan Stanley an amount cases/f255500/255578.htm.

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violation’’ if there is no identification acknowledges that the proposed Competitive Impact Statement, when anywhere in the Complaint, the settlement does not require KeySpan to NYISO rules were changed. KeySpan’s Proposed Final Judgment, or the give up all its profits from the scheme: share of the prices raised by dint of its Competitive Impact Statement of the Requiring KeySpan to disgorge a anticompetitive actions is not known by amount of damage to markets and to portion of its ill-gotten gains from its AARP. According to a FERC Staff consumers caused by KeySpan’s recent illegal behavior is the only Report, the KeySpan—Morgan Stanley anticompetitive conduct? There is effective way of achieving relief against swap agreement identified in the simply no factual foundation in the KeySpan, while sending a strong Complaint as violative of antitrust law record to support DOJ’s assertion that message to those considering similar ‘‘produces almost $35 million in annual the proposed compromise of the action anticompetitive conduct.14 revenue.’’ 18 If so, remitting just $12 ‘‘remedies this violation.’’ How can the the public know or Court million to the government, about one- The Competitive Impact Statement determine if the proposed $12 million third of the revenue from the derivative, places great emphasis upon the payment by KeySpan is appropriate plus the enhancement of market prices agreement of KeySpan to pay $12 when it represents only ‘‘a portion of its paid for capacity sold at excessive million to the United States Treasury. ill-gotten gains’’? What portion? What is prices in addition to the income from But there is no provision in the the reason, if any, for requiring KeySpan the financial derivative contract, could Proposed Final Judgment which would to give up less than 100% disgorgement be a good deal for KeySpan. But it remedy or address the harm to AARP of profits? DOJ has not explained its would be a very bad result for members and other consumers caused rationale for accepting less than full consumers, markets, competition, and by KeySpan’s successful efforts to disgorgement of KeySpan’s ‘‘ill-gotten public confidence in Federal antitrust inflate prices in the NYISO markets. gains from its recent illegal behavior.15 law enforcement. The Competitive Impact Statement The Competitive Impact Statement With no remedy for consumers who refers frequently to disgorgement of asserts that ‘‘[b]ut for the Swap, installed overpaid, and without a factual profits by KeySpan under the Proposed capacity likely would have been foundation in the record as to how Final Judgment, possibly creating an procured at a lower price in New York much KeySpan profited from its gambit impression that KeySpan will not be City from May 2006 through February to inflate NYISO market prices, there is allowed to benefit from its scheme (even 2008.’’ 16 Hut, as discussed above, there no way to assess whether the proposed if other sellers do, due to the design of is no indication in the record of the total $12 million payment to the government the NYISO market): amount of ‘‘ill-gotten gains’’ received would be a meaningful or appropriate The proposed Final Judgment byKeySpan due to the antitrust remedy. Although a 2008 FERC Staff remedies this violation by requiring violations, or of the total amount by Report perceived no violation of FERC KeySpan to disgorge profits obtained which market prices were elevated due orNYISO rules, and exonerated through the anticompetitive agreement to the scheme. An estimate of the total KeySpan and Morgan Stanley, the Court * * *. Disgorgement will deter market price inflation in 2006 was made should not ignore the fact that the FERC KeySpan and others from future by Con Edison, a purchaser in the Staff Report did not emerge from an violations of the antitrust laws. [p. 1] NYISO capacity market: open proceeding with the benefit of The proposed Final Judgment requires The resulting harm to consumers was discovery, public testimony, or cross KeySpan to disgorge profits gained as a quite significant. Economic withholding examination by interested intervening result of its unlawful agreement caused the price of capacity to remain parties. Indeed, the ineffectiveness of restraining trade. [p. 8] close to $13/kW-month instead of FERC, which eventually approved a Disgorgement is necessary to protect decreasing to less than $6 per kWmonth, prospective change in NYISO market the public interest by depriving a price that [NYISO Market Monitor] Dr. rules in 2008, highlights the patchwork KeySpan of the fruits of its ill-gotten Patton said would exist under nature of jurisdiction over energy gains and deterring KeySpan and others competitive market conditions * * *. markets and derivatives,19 and from engaging in similar As calculated by Con Edison witness Anticompetitive conduct in the future. Stuart Nachmias, the impact on New 18 Findings of a Non-Public Investigation of Absent disgorgement, KeySpan would York State’s consumers of economic Potential Market Manipulation by Suppliers in the be likely to retain all the benefits of its withholding during the 2006 Capability Ne York City Capacity Market, FERC Enforcement Staff Report, at, (Feb. 28, 2008), P. 21, available at anticompetitive conduct. [p. 9] Year on was approximately $157 http://elibrary.ferc.gov/idmws/common/ Disgorgement here will also serve to million, of which approximately $119 opennat.asp?fileID=11605597. restrain KeySpan and others from million impacted New York City 19 ‘‘Three Federal statutes, the Commodity participating in similar anticompetitive consumers alone * * *.17 Exchange Act (CEA), the Energy Policy Act of 2005 conduct. [p. 10] This estimate was only for 2006. It (EPAct 2005), and the Energy Independence and Security Act of 2007 (ElSA) all prohibit A disgorgement remedy should deter also indicates that about $38 million in manipulation of various energy commodities and Keyspan and others from engaging in higher costs ($157 million total minus empower Federal agencies to impose penalties on similar conduct. [p.11–12] 13 $119 million in New York City) were manipulators Unlike the EPAct 2005 or the EISA, Contrary to the impression cast by the experienced in the rest of New York the CEA does distinguish between market power manipulations and fraud-based manipulations. above assertions, a $12 million payment State in 2006 due to the KeySpan However, a series of poorly reasoned legal decisions by KeySpan as proposed would not withholding. The scheme continued have undermined the efficacy of the CEA as a tool amount to full disgorgement of its until March 2008, according to the for combating market power manipulation. The profits from the antitrust law violation EPAcI 2005 and EISA are both based on section 10b(5) of the Securities and Exchange Act, and 14 described in the Complaint. Rather, it Id., p. 10. focus on fraud-based manipulations. As a result, would represent only some 15 Id. they are ill-suited to address market power undesignated portion of KeySpan’s 16 DOJ Competitive Impact Statement, p. 7. manipulation, and attempts to use them to do so profits from the illegal scheme. The 17 Re New York Independent System Operator, will inevitably lead to further legal confusions. Inc., FERC Docket No. ERO7–360.000, Motion to * * * The FERC and FTC antimanipulation rules Competitive Impact Statement Comment of Consolidated Edison Company of New are newer, and have not been extensively tested in York, Inc., and Orange and Rockland Utilities, Inc., litigation, but from an economist’s perspective, 13 DOJ Competitive Impact Statement. (Emphasis p. 2, available at http:/elibrary.ferc.gov/idmws/ these rules (and the statutes that authorize them) added). common/opennat.asp?fileID=11236060. Continued

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underscores the importance of vigorous anticompetitive conduct.’’ 21 Indeed, the proposed settlement may only antitrust law enforcement by DOJ to DOJ, in its Competitive Impact incent further testing of the limits and address, remedy, and deter Statement, suggests content and exploitation of markets and consumers. anticompetitive conduct in the NYISO significance of the Proposed Final Analogous to bid rigging schemes electricity markets. Judgment well beyond its text. DOJ where the winner secretly pays a part of In justification of the proposed states his excessive profits to other sellers who settlement, the DOJ Competitive Impact The proposed Final Judgment deliberately overbid far in excess of the Statement is replete with references to remedies this violation by requiring winning ‘‘low’’ bid, the same result the putative deterrent effects the KeySpan to disgorge profits obtained might be obtained by sellers in the Proposed Final Judgment would have, through the anticompetitive organized electricity spot markets such claiming it would discourage future agreement.22 as those of the NYISO, using a financial transgressions by NYISO market Actually, the Proposed Final intermediary and derivative contracts to participants: Judgment simply states that: compensate the high bidder who raises Disgorgement will deter KeySpan and plaintiff and KeySpan, through their the price but sacrifices some sales to do others from future violations of the respective attorneys, having consented so. The DOJ Competitive Impact antitrust laws. [p. 2] to the entry of this Final Judgment Statement does not sufficiently identify See International Boxing Club v. without trial or adjudication of any the details of the swap contract United States, 358 U.S.242, 253 (1959) issue of fact or law, for settlement arrangements made by KeySpan with (relief should ‘‘deprive ‘the antitrust purposes only, and without this Final Morgan Stanley to ensure that KeySpan defendants of the benefits of their Judgment constituting any evidence would receive additional benefits when conspiracy,’ ’’ * * * The Second Circuit against or an admission by KeySpan sales were made by competitors at has held that disgorgement is among a with respect to any allegation contained higher prices due to KeySpan’s district court’s inherent equitable in the Complaint.23 economic withholding. powers, and is a ‘‘well-established On its face, the Proposed Final When all sellers benefit from any remedy * * * to prevent wrongdoers Judgment does not contain language successful price-raising gambit in from unjustly enriching themselves identifying any ‘‘violation,’’ does not NYISO and similar organized electricity through violations, which has the effect mention profit disgorgement, does not markets, the real ‘‘message’’ conveyed by of deterring subsequent fraud.’’ SEC v. state KeySpan will ‘‘disgorge profits,’’ this case to those entertaining an Cavanagh, 445 F.3d 105, 116–17 (2d Cir. and does not determine that the swap exercise of market power in violation of 2006). [p. 8–9]. agreement was ‘‘anticompetitive.’’ as antitrust law, if the settlement is Disgorgement is necessary to protect suggested by the DOJ Competitive approved, could be ‘‘go for it.’’ If the the public interest by depriving Impact Statement. gambit is discovered, the market KeySpan of the fruits of its ill-gotten There is no provision in the Proposed participant can escape civil antitrust gains and deterring KeySpan and others Final Judgment one could point to as liability in an antitrust case brought by from engaging in similar even a rhetorical or symbolic ‘‘shaming’’ DOJ four years later by simply agreeing anticompetitive conduct in the future. that might deter similar future conduct to cede an unspecified portion of one’s Absent disgorgement, KeySpan would of sellers concerned with their good will profits, with no admission of be likely to retain all the benefits of its and public image. Rather, the Proposed wrongdoing. Thus, if approved, the anticompetitive conduct. {p. 9]. Final Judgment simply would require a Proposed Final Judgment may only A disgorgement remedy should deter payment to the government with no encourage sellers to exploit the nation’s Keyspan and others from engaging in admission of wrongdoing, no electricity spot markets and consumers, similar conduct. [p.11] 20 acknowledgment of any anticompetitive with confidence that if they are caught There is no explanation in the DOJ conduct, and no remedy for consumers by DOJ, they will not be ordered to Competitive impact Statement as to why harmed. The ‘‘message’’ conveyed by the provide a remedy to exploited only a portion of profits is being $12 million payment to other market consumers, but merely required to pay disgorged, what the total profits were, participants may simply be that it was some portion of unlawfully obtained what portion is being disgorged, or how a nuisance settlement equal to the cost profits to the government. of a handful of New York lawyers for a the disgorgement of part of the profits AARP Recommendations from an antitrust violation would couple of years. If the $12 million possibly work to deter others from payment is only a fraction of KeySpan’s AARP recommends that DOJ future efforts to inflate prices in the ill-gotten gain; if all sellers in the renegotiate, or the Court modify, the nation’s electricity spot markets. The NYISO or other organized electricity Proposed Final Judgment to require the record is devoid of any explanation markets benefit from a successful following: underlying DOJ’s conclusion that only exercise of market power by any one of 1. Acknowledgment of wrongdoing partial disgorgement of unquantified them; if the cost of apprehension is and violation of the antitrust law by profits in this case would somehow small or nonexistent compared to the KeySpan as described in the Complaint; deter similar conduct in the organized benefits; then other market participants 2. Identification of the harm to electric spot markets or send ‘‘a strong may be emboldened to try similar markets and consumers including the message to those considering similar strategies if the Proposed Final total cost of the inflated prices in the Judgment permitting such results is NYISO capacity market due to are completely misguided and hopelessly ill-suited approved. In the NYISO and similarly KeySpan’s anticompetitive conduct; to reach the kinds of manipulative conduct most designed electricity markets where all 3. Identification of derivative likely to occur in energy markets. * * * sellers benefit from the wrongdoing of contracts which violated the antitrust Manipulation is a potentially serious problem in all the one who illegally drives prices up, ‘‘ ’’ derivatives markets, energy included. Craig Pirrong, laws, and any other determinative 24 Energy Market Manipulation: Definition, Diagnosis, documents under the Tunney Act; and Deterrence, 31 Energy Law Journal 1–2 (2010) 21 Id.,p. 1O. (Emphasis added). 22 Competitive Impact Statement, p. 2. 24 The DOJ Competitive Impact Statement asserts 20 DOJ Competitive Impact Statement. (Emphases 23 Proposed Final Judgment, para. 1 (Emphasis that there are no ‘‘determinative’’ documents added). added,). required to be submitted under the Tunney Act. See

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4. Disgorgement by KeySpan of all additional evidence sufficient to wrongful anti-competitive practices of profits it realized through the scheme to address, at a minimum, the following KeySpan Corporation (‘‘KeySpan’’). inflate prices; matters: DOJ’s enforcement of the antitrust law is 5. Refunding by KeySpan of its profits 1. The total amount of inflated profits critical to protect consumers against the from antitrust violations to reduce the achieved by all sellers in the NYISO harmful effects of KeySpan’s anti- harm to consumers, and other measures capacity market due to the antitrust law competitive conduct in this particular to protect consumers and deter similar violation identified in the Complaint, case and, more generally, to protect the schemes to exercise market power in and an estimate of the total damage and public interest in the integrity of the violation of the antitrust laws. economic harm to electricity consumers newly-created competitive electricity Under the Tunney Act, there must be in New York City and the rest of the markets. a ‘‘factual foundation for the state; DOJ proposes to settle this litigation government’s decisions such that its 2. The total amount of inflated profits by having KeySpan pay the United conclusions regarding the proposed received by KeySpan due to the States government $12 million. DOJ settlement are reasonable.’’ United antitrust violation identified in the asserts such a settlement will be in the States v. SBC Commc’ns, Inc., 489 F. Complaint; public interest because KeySpan’s Supp. 2d1, 15–16 (D.D.C. 2007). For the 3. The relationship of any proposed payment of $12 million into the U.S. reasons previously stated, the Proposed disgorgement to the total profits Treasury will prevent KeySpan’s unjust Final Judgment is not supported by the received by KeySpan from the violation enrichment, and deter others from record as it now stands, and the identified in the Complaint; agreeing not to compete in the future. requisite ‘‘factual foundation’’ for 4. The amount of revenue received by However, because DOJ has not offered compromise of the action as proposed KeySpan under its financial swap any information as to how much by DOJ and KeySpan is lacking. agreement with Morgan Stanley; KeySpan profited from its unlawful Accordingly, the request of DOJ arid 5. The rationale for not requiring full conduct, the Court has no basis for KeySpan for Tunney Act approval of the disgorgement of profits due to the evaluating whether the proposed $1 2 Proposed Final Judgment should not be antitrust violation, if the settlement million settlement will prevent granted by the Court. proposal is not modified and partial KeySpan’s unjust enrichment or is Alternatively, the Court should disgorgement is still proposed; sufficient to deter such conduct in the require DOJ to supplement the record, if 6. The rationale for not providing any future. Therefore, the Court should DOJ does not renegotiate the proposed remedy to benefit customers injured by direct DOJ to supplement the record to settlement or provide further factual the antitrust violation identified in the show how much KeySpan gained by support in response to these or other Complaint, if the settlement proposal is virtue of its anti-competitive conduct. comments, or conduct a public hearing not modified and no financial or other Only in this way can the Court evaluate to determine whether the Proposed remedy for consumers is proposed. whether the proposed settlement would Final Judgment is in the public interest. Thank you for your consideration. be in the public interest. POINT 1, Obtaining additional evidence is an Respectfully submitted, below. appropriate way to assure protection of As explained more fully below, it is the public interest in a Tunney Act AARP, New York State Office. highly probable that KeySpan’s gains proceeding: AARP were well in excess of $12 million. Its In addition, the Court found there to In the United States District Court for net profits under the complained-of be insufficient material in the record, the Southern District of New York ‘‘swap’’ agreement amounted to nearly which consisted largely or exclusively $68 million. The proposed $12 million of unverified legal pleadings, to allow Civil Case No. 10–CIV–1415 settlement would not prevent KeySpan’s the Court to adequately discharge its United States of America, Petitioner unjust enrichment, and would not deter duties under the Tunney Act. * * * v. KeySpan Corporation, Respondent. such conduct in the future. POINT II, Rather than hold an evidentiary hearing, Comments of the Public Service below. the Court ordered the government to Commission of the State Of New Finally, KeySpan’s unlawful anti- provide further materials that would York, Pursuant to the Antitrust competitive conduct harmed consumers allow the Court to make the public Procedures and Penalties Act, on to an extent far exceeding both the interest determination required by the the Proposed Final Judgment proposed $12 million settlement and Tunney Act. The Court allowed the KeySpan’s nearly $68 million net profit Summary government to decide exactly what under the swap. The costs to consumers, types of materials were appropriate to The Public Service Commission of the in the form of excessive electricity costs submit. The Court also provided the State of New York (‘‘PSC’’) submits these caused by KeySpan’s unlawful other parties and amici the opportunity comments pursuant to the Antitrust agreement, may well exceed hundreds to respond to this supplemental filing. Procedures and Penalties Act, 15 U.s.c. of millions of dollars over a two-year United States v. SBC Commc’ns, Inc., 16(b)–(h), in response to the notice period. Proceeds from any settlement 489 F. Supp. 2d 1 (D.D.C. 2007).25 published in the Federal Register on should be used to benefit ratepayers, AARP believes augmentation of the March 4, 2010, in this matter. U.S. Dep’t who were greatly harmed by KeySpan’s record in this case should include ofJustice, Antitrust Div., United States wrongful conduct. POINT Ill, below. v. Keyspan Corporation, Proposed Final United States v. Central Contracting Co., Inc., 537 Judgment and Competitive Impact Background F. Supp. 571 (E.D. Va. 1982) (‘‘The Court simply Statement, 75 FR 9946 (March 4, 2010). In this civil antitrust action, brought cannot accept an interpretation of legislation that permits the government to assert in 172 out of 188 DOJ is to be commended for its by the United States Department of cases that it considered neither documents nor any faithful enforcement of the antitrust law Justice (‘‘DOJ’’) under Section 1 of the other materials determinative in reaching its to protect the integrity of electricity Sherman Act, 15 U.S.C. 1, the conclusion to enter into a consent decree’’). markets in New York City. The electric government seeks equitable and other 25 If DOJ supplements the record the public should have an opportunity to comment on new capacity market for New York City is relief against KeySpan for violating the material offered to justify the proposed settlement highly concentrated. The antitrust law is antitrust law. According to DOJ, or any modification of it. properly applied in this case to address KeySpan entered into an agreement (the

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‘‘KeySpan Swap’’ or the ‘‘swap’’) with an For the same reason, DOJ has not offered dollars. United States v. Keyspan unnamed financial services company enough information to assess its claim Corporation; Proposed Final Judgment (the ‘‘FSC’’) which, in purpose and that the settlement will deter such and Competitive Impact Statement, 75 effect, ensured that KeySpan would unlawful conduct in the future, Finally, FR 9946, 9949 (March 4, 2010). ‘‘withhold substantial output from the the proposed settlement will do nothing According to DOJ, this amount New York City electricity generating to address the substantial harm to ‘‘remedies [KeySpan’s] violation by capacity market. * * *’’ 75 FR 9947. competitiveness of the market that requiring KeySpan to disgorge profits DOJ states that ‘‘[t]he likely effect of the KeySpan caused. For these reasons, the obtained through the Anticompetitive Keyspan Swap was to increase capacity Court should direct DOJ to supplement agreement.’’ 75 FR 9949. DOJ asserts that prices for the retail electricity suppliers the record with information about how ‘‘[d]isgorgement is necessary to protect who must purchase capacity, and, in much KeySpan profited, and how much the public interest by depriving turn, to increase the prices consumers KeySpan harmed the integrity of the KeySpan of the fruits of its ill-gotten pay for electricity.’’ 75 FR 9947. electricity markets. Finally the Court gains and deterring KeySpan and others According to DOJ, the KeySpan Swap should require that proceeds of any from engaging in similar was an agreement that unlawfully settlement be used to ameliorate the anticompetitive conduct in the future.’’ restrained competition in New York harm KeySpan caused to electric 75 FR 9949. Thus, according to DOJ, the City’s electric capacity market. KeySpan ratepayers in the downstate New York public interest is served because the entered into the swap agreement to area. proposed settlement will both prevent protect itself against increased losses KeySpan’s unjust enrichment, and will Point I: DOJ Has Not Provided Enough from its preferred bidding strategy, due deter such wrongful conduct in the Information to Determine Whether the to the entry of new competitors into the future. market. 75 FR 9947. Under the swap Proposed Settlement is in the Public Preventing any unjust enrichment on agreement, KeySpan, which already Interest KeySpan’s part is a legitimate purpose possessed substantial market power in Before entering any consent judgment of any proposed settlement. In the highly concentrated and constrained proposed by the United States, the Court fashioning relief in response to a New York City capacity market, must first determine that entry of such violation of the antitrust law, ‘‘[o]ne of ‘‘enter[ed] into an agreement that gave it a judgment ‘‘is in the public interest.’’ 15 [the] objectives * * * is to ‘deny to the a financial interest in the capacity of USCS § 16(e)(1). In doing so, ‘‘the court defendant the fruits of its statutory Astoria—KeySpan’s largest competitor.’’ shall consider— violation.’ ’’ Massachusetts v. Microsoft 75 FR 9947. By giving KeySpan (A) the competitive impact of such Corp., 373 F.3d 1199, 1232 (D.C. Cir. revenues not only from its own sales, judgment, including termination of 2004) (quoting United States v. but also from the capacity sales of its alleged violations, provisions for Microsoft Corp., 253 F.3d 34, 103 (D.C. largest competitor, the KeySpan Swap enforcement and modification, duration Cir. 2001)). However, the unstated ‘‘effectively eliminated KeySpan’s of relief sought, anticipated effects of premise underlying DOJ’s claims (i.e., incentive to compete for sales’’ of alternative remedies actually that disgorgement is necessary to capacity. 75 FR 9948. Thus, ‘‘[t]he clear considered, whether its terms are prevent unjust enrichment and that a tendency of the KeySpan Swap was to ambiguous, and any other competitive $12 million penalty is adequate), is that alter KeySpan’s bidding in the NYC considerations bearing upon the KeySpan realized a gain of $12 million. Capacity Market auctions.’’ 75 FR 9948. adequacy of such judgment that the Yet DOJ has not offered anything to After entering into the swap, KeySpan court deems necessary to a support this. The Complaint, the was able to continue bidding its determination of whether the consent Competitive Impact Statement, and the capacity into the market at the highest judgment is in the public interest; and proposed Consent Judgment are silent level allowed, knowing any losses from (B) the impact of entry of such on the critical question of how much foregone sales would be more than judgment upon competition in the KeySpan improperly gained by violating offset by profits from the swap and from relevant market or markets, upon the the antitrust law. its remaining sales. 75 FR 9948. public generally and individuals It is, of course, axiomatic that ‘‘the As a result, electric capacity prices alleging specific injury from the fruits of a violation must be identified remained unlawfully inflated, and violations set forth in the complaint before they may be denied.’’ KeySpan was paid, under the terms of including consideration of the public Massachusetts v. Microsoft Corp., 373 the swap agreement, as much as $67.8 benefit, if any, to be derived from a F.3d 1199, 1232 (D.C. Cir. 2004). The million. Attached Affidavit of Thomas determination of the issues at trial. lack of any information as to how much Paynter dated April 27,2010 (‘‘Paynter 15 USCS § 16(e)(1)(A) & (B). KeySpan gained makes it virtually Affidavit’’) ¶ 15. In addition, the In seeking the Court’s approval, DOJ impossible for the Court to meaningfully elimination of competitive pressures, has the burden to ‘‘provide a factual evaluate whether $12 million due to KeySpan’s anti-competitive basis for concluding that the settlements ‘‘represents a reasonable method of agreement, imposed unnecessary costs are reasonably adequate remedies for eliminating the consequences of the on consumers which may total the alleged harms.’’ United States v. SBC illegal conduct.’’ National Soc. of hundreds of millions of dollars. Communs., Inc., 489 F. Supp. 2d 1, 17 Professional Engineers v. United States, DOJ’s proposal, however, does not (D.D.C. 2007). In this case, DOJ has not 435 U.S. 679, 698 (1978). This holds include enough information to allow the met this burden. Neither the true both with respect to depriving Court to find, as is required under the competitive impact statement, nor the KeySpan of any unjust enrichment, and Tunney Act, 15 U.S.C. 16e(1), that the proposed consent decree provides the with respect to evaluating whether the settlement would be in the public information needed to evaluate whether settlement will deter such wrongful interest. DOJ asserts the public interest this settlement would be a reasonably conduct in the future. Thus, on the will be served by preventing KeySpan’s adequate remedy for the harm caused by current record, the Court has no basis unjust enrichment, but DOJ has not KeySpan. for finding the proposed settlement offered any estimates of how much Under the proposed settlement, would be ‘‘in the public interest.’’ money KeySpan made by agreeing, with KeySpan would be required to pay the It is noteworthy that DOJ elsewhere its biggest competitor, not to compete. United States government $12 million implies KeySpan made more than $12

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million as a result of its anti-competitive settlement, the parties conducted 2006, through March, 2008, was $9.21/ conduct. More specifically, DOJ extensive discovery which established kW-month. After subtracting the $7.57 indicates the $12 million settlement facts supporting the new proposal). per kW month amount specified under would effect only partial disgorgement the swap agreement, KeySpan’s average Point II—The Proposed Consent Decree of KeySpan’s gains. 75 FR 9951 revenues under the swap agreement Would Not Deter the Unlawful (claiming that ‘‘[r]equiring KeySpan to Anticompetitive Conduct Identified By were $1.64/kW-month, times the 1800 disgorge a portion of its ill-gotten gains DOJ MW covered by the swap agreement, for * * * is the only effective way of a period of 23 months. Multiplying achieving relief against KeySpan KeySpan’s swap, in both purpose and these figures out yields a total of $67.8 ***.’’) (emphasis added). If DOJ is effect, violated the antitrust law. Its million. Thus, under the swap actually seeking only partial purpose was to ‘‘effectively eliminate[ I agreement alone, KeySpan received disgorgement, then the settlement KeySpan’s incentive to compete for revenues of almost $68 million.3 would not prevent KeySpan’s unjust sales in the same way a purchase of Paynter Affidavit ¶ 15. enrichment. Anything less than full Astoria or a direct agreement between The proposed $12 million payment disgorgement would a forliori not strip KeySpan and Astoria would have done.’’ would amount to only 17.7% of KeySpan of its wrongful gains. 75 FR 9948. Thus, regardless of its effect KeySpan’s direct revenues/net profits Moreover, if $12 million represents only on the market, the KeySpan Swap under the swap agreement. Thus, if the a fraction of the total amount of violated the Sherman Act. Cf. Summit Court approves this settlement, KeySpan’s unjust enrichment, such a Health v. Pinhas, 500 U.S. 322, 330 KeySpan would be able to retain more penalty would not deter future (1991) (‘‘[B]ecause the essence of any that $55 million in ill-gotten gains, and violations of the antitrust law. Such a violation of I [of the Sherman Act] is the the FSC would be able to retain more penalty may instead amount to nothing illegal agreement itself[,] rather than the than $20 million in additional ill gotten more than a ‘‘cost of doing business.’’ 1 overt acts performed in furtherance of it, gains. Such a settlement would clearly This possibility is not remote. As * * * proper analysis focuses, not upon not materially prevent KeySpan’s unjust discussed below in POINT H, it is actual consequences, but rather upon enrichment. Moreover, under any highly probable that the total amount of the potential harm that would ensue if reasonable measure, the proposed ’’ KeySpan’s ill-gotten gains was much the conspiracy were successful ). settlement would not deter KeySpan, or The KeySpan Swap also violated the greater than $12 million. other market participants, from engaging Sherman Act because of its effect on the Given that DOJ has not proffered in such anti-competitive conduct in the market. Its ‘‘clear tendency’’ was to alter enough information to enable the Court future. Thus, the proposed $12 million KeySpan’s bidding, in order to prevent to determine whether the proposed settlement would not satisfy either of competition and keep prices high. 75 FR settlement is in the public interest, DOJ DOJ’s rationales (i.e., preventing should be directed to do so. Under the 9948 (col. 3). Cf. United States v. Stascuk, 517 F.2d 53, 60 & n.17 (7th Cir. KeySpan’s unjust enrichment, and Tunney Act, ‘‘[t]he court may ‘take deterring such wrongful conduct in the testimony of Government officials or Ill. 1975) (‘‘The Federal power to protect the free market may be exercised to future) for a judicial finding that the experts’ as it deems appropriate, 15 settlement is in the public interest. U.S.C. 16(f)(1); authorize participation punish conduct which threatens to by interested persons, including impair competition even when no actual Point III—The Proposed Settlement appearances by amici curiae, Id. harm results’’) Would Not Ameliorate the Ratepayer § 16(f)(3); review comments and KeySpan’s ill-gotten gains far Harm Caused by Keyspan objections filed with the Government exceeded the $12 million payment DOJ The Court Should Consider Ratepayer concerning the proposed judgment, as is seeking. DOJ alleges the KeySpan Harm well as the Government’s response Swap was effective from January 16, thereto, Id. § 16(f)(4); and ‘take such 2006 until March, 2008.2 Under the In determining whether the settlement other action in the public interest as the swap agreement, if the market price for is in ‘‘the public interest,’’ the Court court may deem appropriate,’ iii. capacity exceeded $7.57 per kW-month, should also consider the impact of the § 16(f)(5).’’ Massachusetts v. Microsoft the financial services company (‘‘FSC’’) proposed settlement on the ratepayers Corp., 373 F.3d 1199, 1206 (D.C. Cit. would pay KeySpan the difference that were harmed by KeySpan’s anti- 2004). Requiring DOJ to adduce facts between the market price and $7.57, competitive conduct. See 15 U.S.C. relating to how much KeySpan gained times 1800 MW. 75 FR 9950. 16(e)(1)(B) (‘‘the court shall consider as a result of its anticompetitive conduct The average spot market price for * * * the impact of entry of such will provide a record basis for any capacity during the period from May, judgment upon * * * the public public interest determination made by generally * * *’’) 4 DOJ acknowledges the Court. Cf S.E.C. v. Bank of America 2 DOJ asserts the swap agreement was effective ______from May, 2006, through April, 2009. 75 FR 9950– Corp., F. Supp.2d , 2010 U.S. 51. According to DOJ, the ‘‘effects’’ of the swap 3 In addition, the FSC received $0.50/kW-month Dist. LEXIS 15460 (S.D.N.Y. Feb. 22, continued only ‘‘until’’ March, 2008, because the under the swap agreement. Multiplying this amount 2010) (approving a proposed consent New York State Public Service Commission by the 1800 MW covered by the swap agreement, judgment because, inter alia, after the required KeySpan to bid its New York City capacity times the 23 month duration of the swap agreement, at zero from March 2008 until KeySpan sold its yields total revenues to the FSC of approximately court rejected an earlier proposed Ravenswood plant. 75 FR 9951 & n. 2. However, the $20.7 million. Paynter Affidavit ¶ 17. The FSC’s analysis below assumes the swap remained profits are potentially relevant because Astoria 1Arguably, even total disgorgement would have ‘‘effective’’ between the parties during March, 2008, could have directly entered into a swap agreement only a limited deterrent effect. ‘‘[T]o ‘limit the because the PSC’s requirement that KeySpan bid at with a load-serving entity serving New York City. penalty * * * to disgorgement is to tell a violator zero would not have triggered the agreement’s If such agreement had a ‘‘trigger’’ price of $7.07, the that he may [break the law] with virtual impunity; ‘‘regulatory out’’ clause. This has bearing on the total load-serving entity would have realized revenues of if he gets away undetected, he can keep the amount of KeySpan’s gain under the swap $89 million (i.e., $67 million, plus $21 million), proceeds, but if caught, he simply has to be give agreement. Including March, 2008, reduces which would have inured to the benefit of back the profits of his wrong.’ ’’ SEC v. Bear, Stearns KeySpan’s total revenues under the swap because, consumers. Paynter Affidavit ¶ 18. & Co., 626 F. Supp. 2d 402, 406 (S.D.N.Y. 2009) during March, 2008, the market price of capacity 4 Cf. United States v. SBC Communs., Inc., 489 F. (quoting S.E.C. v. Rabinovich & Assoc., 2008 U.S. was below the $7.57 per kW-month trigger in the Supp. 2d 1, 17 (D.D.C. 2007) (‘‘the court should be Dist. LEXIS 93595, 2008 WL 4937360, at *6 swap agreement. Thus, for March, 2008, KeySpan concerned with any allegations that the proposed (S.D.N.Y. Nov. 18, 2008)). would have paid moneys to the FSC. settlement will injure a third party’’).

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ratepayers were harmed, in the form of settlement proposal. Cf. Howard Hess DOJ maintains the public interest inflated capacity prices, because of Dental Labs. Inc. v. Dentsply Int’l, Inc., requires disgorgement to prevent KeySpan’s conduct. According to DOJ, 424 F.3d 363, 374 (3d Cir. 2005) (‘‘IlIhe KeySpan’s unjust enrichment. 75 FR ‘‘[w]ithout the Swap, KeySpan likely standard method of measuring damages 9951. The legal doctrine of unjust would have chosen from a range of in price enhancement cases is enrichment ‘‘is an old equitable remedy potentially profitable competitive overcharge, [that is] the difference permitting the court in equity and good strategies in response to the entry of between the actual price and the conscience to disallow one to be new capacity. Had it done so, the price presumed competitive price multiplied unjustly enriched at the expense of of capacity would have declined.’’ 75 FR by the quantity purchased’’); New York another.’’ Nimbus Techs., Inc. v. 9948. Because KeySpan decided to Julius Nasso Concrete Corp., 202 F.3d SunnData Prods., 2005 U.S. Dist. LEXIS withhold capacity rather than compete, 82, 88–89 (2d Cir. 2000) (‘‘Where * * * 46509 (ND. Ala. Dec. 7,2005) (quoting it realized ill-gotten gains on all of the there is a dearth of market information Battles v. Atchison, 545 So. 2d 814, 815 capacity it sold, in addition to the unaffected by the collusive action of the (Ala. 1989)). nearly $68 million KeySpan received defendants, the plaintiffs burden of In this case, DOJ’s proposed $12 directly under the terms of the swap proving damages, is, to an extent, million partial disgorgement of agreement itself. lightened[,] [and] the State need only KeySpan’s ill gotten gains would be Yet DOJ also indicates that ratepayers provide the court with some relevant deposited in the United States Treasury, may have no recourse under the data from which the district court can and will not inure to the benefit of the antitrust law because of the ‘‘fried rate’’ make a reasonable estimated calculation ratepayers directly harmed by KeySpan. doctrine. 75 FR 9951. Moreover, of the harm suffered * * *.’’) (citations KeySpan’s wrongful conduct harmed ratepayers may not be able to obtain any and internal quotations omitted); Id., consumers, and damaged the credibility relief from FERC because, in early 2008, 202 F.3d at 89 (‘‘[T]o do otherwise of the markets, by wrongly inflating FERC’s Staff concluded there was no would be a perversion of fundamental capacity prices. The cost may have evidence that KeySpan’s bidding principles of justice [and would] deny totaled hundreds of millions of dollars. behavior violated FERC’s Anti- all relief to the injured person, and Given the high level of consumer harm, Manipulation Rule, 18 CFR 1c2(a). thereby relieve the wrongdoer from the proceeds of any settlement should FERC Docket Nos. IN08–2–000 & ELO7– making any amends for his acts’’); New be used to ameliorate the consumer 39–000, Enforcement Staff Report, York Hendrickson Bros., Inc., 840 F.2d harm KeySpan caused. Depositing the Findings of a Non-Public Investigation 1065, 1078 (2d Cir. 1988) (‘‘The most settlement proceeds in the U.S. of Potential Market Manipulation by elementary conceptions of justice and Treasury, as DOJ proposes, would be a Suppliers in the New York City public policy require that the wrongdoer manifestly unfair result. Capacity Market, p. 17 (February 28, shall bear the risk of the uncertainty Accordingly, in the proper exercise of 2008). Thus, in this case ratepayers which his own wrong has created’’) its equitable powers, the Court should harmed by KeySpan’s anti-competitive (quoting Bigelow v. RKO Radio Pictures, direct that proceeds of the settlement be conduct may have no meaningful Inc., 327 U.S. 251, 264 (1946)); Fishman used to benefit the ratepayers that were recourse under either the antitrust law v. Estate of Wirt, 807 F.2d 520, 551 (7th directly and materially injured by or the Federal Power Act. Cir. 111. 1986) (‘‘The concept of a KeySpan’s anti-competitive conduct. This lack of a remedy for customers ‘yardstick’ measure of damages, that is, The need for such relief is particularly is highly significant, given the potential linking the plaintiffs experience in a acute in this case because consumers size of the harm to consumers caused by hypothetical free market to the may not be able to obtain relief under KeySpan’s violation of the antitrust law. experience of a comparable firm in an Section 4 of the Sherman Act, and may DOJ has not offered any factual actual free market, is also well not be able to obtain relief from FERC. information or analysis of how much accepted’’). Accordingly, settlement proceeds KeySpan gained by maintaining prices If KeySpan’s illegal conduct harmed should be credited to affected ratepayers at an artificially high level in violation consumers by preventing price declines (i.e., ratepayers within the New York ‘‘ of the antitrust laws, rather than that could have totaled hundreds of Independent System Operators’ Zone ’’ choosing to bid at more competitive millions of dollars, then the proposed J ). This approach will directly address the harm KeySpan caused to consumers level. The measure of disgorgement $12 million settlement is so low it in New York City. If this approach is should reflect the profits gained by would not be fair, reasonable, adequate unworkable, either because it would not KeySpan through the unlawfully higher or in the public interest. Cf. SEC. v. be cost-effective or would be unduly price of capacity.5 The Court should Bank of America Corp., 653 F. Supp.2d complex, then settlement proceeds direct DOJ to address this defect in the 507 (S.D.N.Y. 2009) disapproving a proposed settlement in part because the should be used for energy efficiency ‘‘ programs within New York City 5 That is, the analysis in the Paynter Affidavit proposed $33 million fine was a trivial shows a total harm to ratepayers of $89 million penalty for a false statement that administered by the New York State from KeySpan’s, and the FSC’s, financial interest in materially infected a multi-billion-dollar Energy Research and Development the 1800 MW controlled by the swap, even without merger’’). But cf. SEC. v. Bank of Authority. Promoting energy efficiency assuming any drop in spot market prices. However, ______would reduce the demand for KeySpan also controlled an additional 2400 MW of America Corp., F. Supp.2d , 2010 capacity in the New York City market. By U.S. Dist. LEXIS 15460 (S.D.N.Y. Feb. electricity. This, in turn, would both continuing to bid at its cap (even after accounting 22, 2010) (approving a $150 million fine mitigate the market power of electric for KeySpan’s additional lost sales due to the entry even though it would have only ‘‘a very suppliers in New York City and help of new generation into the market), KeySpan reduce electricity prices going forward. realized gains outside the swap that, roughly modest impact on corporate practices or speaking, equaled or exceeded the nearly $68 victim compensation’’). Such a use of settlement proceeds is million KeySpan received under the swap. The particularly appropriate in this case, need for disgorgement of these additional wrongful Settlement Proceeds Should Be Used To given the ratepayer harm KeySpan gains is underscored by the even larger consumer Ameliorate The Ratepayer Harm caused and the potential unavailability harm KeySpan caused. If KeySpan had competed for sales, the resulting declines in prices could DOJ seeks disgorgement, through the of other meaningful relief for those most easily have saved ratepayers hundreds of millions exercise of the Court’s ‘‘inherent directly affected by KySpan’s anti- of dollars. equitable powers * * *.’’ 75 FR 9951. competitive conduct.

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Respectfully submitted, (NYISO), which operates the New York the total net revenues/profits KeySpan Peter McGowan, transmission system. I have participated received from the FSC under the General Counsel. in numerous NYTSO committee KeySpan Swap.1 By: Sean Mullany, Assistant Counsel of meetings related to energy and 9. Regarding the actual market prices Counsel, Public Service Commission of transmission pricing, system planning, of capacity during the period of the the State of New York. and other issues. KeySpan Swap, KeySpan’s bid caps Dated: April 30, 2010, Albany, New 5. I make this affidavit in support of were seasonally ‘‘shaped,’’ in order to York. the comments filed by the Public reflect higher summer prices, and lower Service Commission of the State of New Attachment: Affidavit of Thomas winter prices, due to differences York (‘‘PSC’’ or ‘‘Commission’’) pursuant Paynter In Support of Comments of between summer and winter supply. For to the Antitrust Procedures and The Public Service Commission of the summer 2006 period (i.e., May– Penalties Act, 15 U.S.C. 16(b)–(h), in The State of New York, (April 27, October 2006), the unforced capacity response to the notice published in the 2010). (‘‘UCAP’’) spot price cleared at the level Federal Register on March 4, 2010, in of KeySpan’s bid cap of $12.71/kW- United States District Court for the connection with this matter. U.S. Dep’t month.2 Southern District of New York of Justice, Antitrust Div., United States ‘‘[A] generator’s unforced capacity v. Keyspan Corporation, (UCAP) is its installed capacity ([UCAP) United States of America, Petitioner V. Proposed Final Judgment and Keyspan Corporation, Respondent. discounted or ‘de rated’ by its forced Competitive Impact Statement, 75 FR State of New York outage rate (or equivalent forced outage 9946 (March 4, 2010). rate demand (EFORd)). The forced ss.: County of Albany 6. DOJ states that the KeySpan Swap Affidavit of Thomas Paynter in Support of outage rate equals the historical was executed on January 16, 2006, and percentage of the generator’s maximum Comments of the Public Service was effective from May, 2006, through Commission of the State of New York output lost to forced outages when such Civil Case No. 10–CIV–1415 April, 2009. 75 FR 9950–51. According output is demanded. The translation of to DOJ, the effects of the swap installed into unforced capacity can be THOMAS PAYNTER, being duly continued only until March, 2008, represented mathematically as follows: sworn, deposes and says: because, as of March, 2008, the NYSPSC UCAP = ICAP × (1 – EFORd) * * *’’ 1. I am employed by the New York required KeySpan to bid its NYC Kystian-Ravenswood, LLC FERC, 474 State Department of Public Service capacity into the market at zero until F.3d 804, 807 (D.C. Cir. 2007). (‘‘DPS’’ or ‘‘Department’’) as Supervisor KeySpan sold its Ravenswood plant. 75 10. For the winter 2006–07 period of Regulatory Economics in the Office of FR 9951 & n. 2. Regulatory Economics. 7. However, upon information and (i.e., November 2006–April 2007), the 2. I received a Ph.D. in Economics belief, the PSC’s requirement that UCAP spot price cleared at KeySpan’s from the University of California at KeySpan bid its NYC capacity into the bid cap of $5.84/kW-month. Berkeley (1985), with fields in market at zero did not trigger the swap 11. For the summer 2007 period (i.e., econometrics and labor economics. I agreement’s ‘‘regulatory out’’ clause. May–October 2007), the UCAP spot have a B.A. in Physical Science and a Therefore, upon information and belief, price cleared at KeySpan’s bid cap of BA. in Economics, also from the the swap continued in effect until April, $12.72/kW-month. University of California at Berkeley 2008, when FERC lowered KeySpan’s 12. For the winter 2007–08 period, the (1975). I am a member of the American bid/price cap. Accordingly, the analysis spot price cleared at KeySpan’s bid cap Economic Association. below assumes the swap agreement of $5.77/kW-month for 4 months (i.e., 3. From 1983 to 1986, I was an remained in force during the Month of November 2007–February 2008), and Assistant Professor of Economics at March, 2008. [Note that this assumption then cleared at the lower statewide Northern Illinois University, where I effectively reduces the estimate of the prices of $1.05/kW-month during taught graduate and undergraduate amount of KeySpan’s net revenues/ March, 2008, and at $0.75/kW-month courses in economic theory. From 1986 profits under the swap agreement during April, 2008. to 1990, I was employed by the Illinois because, during the month of March, 13. The lower price during April, Commerce Commission as a Senior 2008, the actual price of capacity was 2008 reflects the fact that FERC’s new Economic Analyst in the Policy below the $7.57 per kWmonth trigger mitigation measures forced KeySpan Analysis and Research Division; I was under the swap agreement (discussed and other New York City electricity also a member of the Electricity below). As a result, during the month of suppliers to bid their capacity into the Subcommittee of the National March, 2008, KeySpan would have been market at or near $0. Association of Regulatory Utility paying moneys to the financial services 14. To compare the actual UCAP spot Commissioners, and authored an article company (‘‘FSC’’), rather than receiving market prices to the swap prices of concerning coordination and efficient moneys from the FSC. $7.57/kW-month (for KeySpan), and pricing for independent power 8. Under the KeySpan Swap, if the $7.07/kW-month (for the FSC), one can producers, ‘‘Coordinating the market price for capacity was above Competitors,’’ published by The $7.57 per kW-month, the FSC would 1 KeySpan and the FSC likely incurred some costs in preparing the swap agreements (which would Electricity Journal in November 1990. I pay KeySpan the difference between the make their profits under the swap something less joined the New York Department of market price and $7.57, limes 1800 MW; than their net revenues), but this analysis assumes Public Service in November of 1990. if the market price for capacity was those Costs were not very significant. 4. My current responsibilities include below $7.07, KeySpan would pay the 2 In describing the $7.57/kW-month and $7.07/ kW-month ‘‘trigger’’ prices under the KeySpan and analyzing competitive issues, efficient FSC the difference, limes 1800 MW. 75 Astoria swap agreements, DOJ refers only to ‘‘the pricing, marginal costs, regulatory FR 9950 (col. 3). Thus, a comparison of market price for capacity’’. See, e.g., 75 FR 9950. policies, and system planning. I am a the actual market price for capacity More specifically, the ‘‘trigger’’ prices under the member of a staff team responsible for during the period from May, 2006, swap agreements referred to the actual ‘‘unforced capacity’’ spot market prices. Similarly, in analyzing and commenting upon the through and including March, 2008, and describing actual market prices, my analysis refers pricing rules of the New York the $7.57/kW month ‘‘trigger’’ (or to the actual unforced capacity (‘‘UCAP’’) spot Independent System Operator, Inc. ‘‘strike’’) price for KeySpan, will reveal market clearing prices.

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refer to the average spot price over the Qualified in Albany County final list of products (the ‘‘EO List’’), twenty-three month period of the My Commission Expires January 14, 2012. identified by their country of origin, that KeySpan Swap (i.e., May, 2006, through [FR Doc. 2010–16321 Filed 7–19–10; 8:45 am] the Department, in consultation and and including March, 2008). This BILLING CODE 4410–11–M cooperation with the Departments of consists of twenty-two months at State and Treasury [relevant KeySpan’s bid cap, and one month (i.e., responsibilities now within the March, 2008) at the lower statewide DEPARTMENT OF LABOR Department of Homeland Security], had price of $1.05/kW-month. a reasonable basis to believe might have 15. Over those twenty-three months, Office of the Secretary of Labor been mined, produced or manufactured the actual average UCAP spot price was with forced or indentured child labor $9.21/kW-month. Based on the Notice of Final Determination Updating (66 FR 5353). In addition to the List, the difference between this amount and the the List of Products Requiring Federal Department also published on January threshold price specified under the Contractor Certification as to Forced 18, 2001, ‘‘Procedural Guidelines for swap agreement (i.e., $7.57/kW-month), or Indentured Child Labor Pursuant to Maintenance of the List of Products the revenues to KeySpan under the Executive Order 13126 Requiring Federal Contractor swap agreement were $1.64/kW-month, Certification as to Forced or Indentured AGENCY: Bureau of International Labor multiplied by the 1800 MW of UCAP Child Labor’’ (Procedural Guidelines), Affairs, Labor. covered by the swap agreement, and which provide for maintaining, further multiplied by the twenty-three ACTION: Notice of final determination. reviewing, and, as appropriate, revising month effective period of the swap SUMMARY: This final determination the EO List (66 FR 5351). On September agreement. This yields a total of updates the list required by Executive 11, 2009, in consultation and revenues to KeySpan under the swap Order No. 13126 (‘‘Prohibition of cooperation with the Department of agreements of $67.8 million. Acquisition of Products Produced by State and the Department of Homeland 16. The FSC’s corresponding Forced or Indentured Child Labor’’), in Security, the Department of Labor agreement with Astoria specified that, if accordance with the ‘‘Procedural published an initial determination the market price for capacity was above Guidelines for the Maintenance of the proposing to update the EO List in the $7.07 per kW-month, Astoria would pay List of Products Requiring Federal Federal Register (74 FR 46794), the FSC the difference, times 1800 MW; Contractor Certification as to Forced or explained how the initial determination if the market price was below $7.07, the Indentured Child Labor.’’ This notice was made, and invited public comment FSC would pay Astoria the difference, sets forth an updated list of products, by through December 10, 2009. The initial times 1800 MW. 75 jkaLBgjster at 9948. country of origin, which the determination and Procedural 17. The differential between the Departments of Labor, State and Guidelines can be accessed on the ‘‘trigger’’ prices under the two swap Homeland Security, have a reasonable Internet at http://www.dol.gov/ILAB/ agreements (i.e., $7.57/kW-month for basis to believe might have been mined, regs/eo13126/main.htm or can be KeySpan, and $7.07/kW-month for produced, or manufactured by forced or obtained from: OCFT, Bureau of Astoria) represented the FSC’s ‘‘stake’’ in indentured child labor. Under a final International Labor Affairs, Room S– the swap arrangement. Because the rule by the Federal Acquisition 5317, U.S. Department of Labor, 200 actual average UCAP spot market price Regulatory Council, published January Constitution Avenue, NW., Washington, (i.e., $9.21/kW-month) exceeded both 18, 2001, which also implements DC 20210; telephone: (202) 693–4843; the ‘‘triggers’’ under the swap Executive Order No. 13126, Federal fax (202) 693–4830. agreements, the FSC’s total revenues can contractors who supply products on this Pursuant to section 3 of E. O. 13126, be calculated by multiplying that list are required to certify, among other the Federal Acquisition Regulatory Councils published a final rule in the differential (i.e., $0.50/kW-month) by things, that they have made a good faith Federal Register on January 18, 2001, 1800 MW, and further multiplying it by effort to determine whether forced or providing, amongst other requirements, the twenty-three month effective period indentured child labor was used to that Federal contractors who supply of the swap agreements. Multiplying produce the item. these figures out yields total revenues to products that appear on the EO List DATES: This document is effective the FSC of $20.7 million. issued by the Department of Labor must 18. The FSC’s profits are potentially immediately upon publication of this certify to the contracting officer that the relevant because Astoria could have notice. contractor, or, in the case of an directly entered into a swap agreement SUPPLEMENTARY INFORMATION: incorporated contractor, a responsible official of the contractor, has made a with a load-serving entity serving New I. Background York City. If such agreement had a good faith effort to determine whether ‘‘trigger’’ price of $7.07, the load-serving Executive Order No. 13126 (EO forced or indentured child labor was entity would have realized revenues of 13126), which was published in the used to mine, produce or manufacture $89M (i.e., $67 million, plus $21 Federal Register on June 16, 1999 (64 any product furnished under the million). Such revenues would have FR 32383), declared that it was ‘‘the contract and that, on the basis of those inured to the benefit of ratepayers. policy of the United States Government efforts, the contractor is unaware of any * * * that the executive agencies shall such use of child labor. See 48 CFR Thomas Paynter, take appropriate actions to enforce the Supervisor of Regulatory Economics, Subpart 22.15. Office of Regulatory Economics, laws prohibiting the manufacture or importation of good, wares, articles, and II. Summary and Discussion of Department of Public Service of the Significant Comments State of New York. merchandise mined, produced or Sworn to before me this 27th day of April, manufactured wholly or in part by Forty three public comments were 2010. forced or indentured child labor.’’ received either through written Notary Public Pursuant to EO13126, and following submissions or through meetings held Sean Mullany public notice and comment, the with the Department of Labor. All Notary Public, State of New York Department of Labor published in the comments are available for public Regis. #02MU6180725 January 18, 2001, Federal Register, a viewing at http://www.regulations.gov

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(reference Docket ID No. DOL–2009– C. Comments on Monitoring and research and intends to wait until that 0002). In developing the final list of Auditing Systems time before a final decision is made on products, the public comments have Multiple comments were received adding carpets from India to the EO List. been carefully reviewed and considered. describing efforts by government, D. Comments on Procedures Related to The following is a summary of the industry and third parties to monitor Publication of the List significant or common comments and and audit the establishments that A variety of comments were received the responses. produce many of the products named on related to the methodology and process the preliminary list. While such A. Comments Asserting That Forced used to place products on the EO List, information is important and valuable Child Labor Is Not Used in the in particular on the date and reliability Production of Products Named on the in determining compliance with a of sources, on the ‘‘reasonable basis to List variety of labor and other standards, in believe’’ criteria, and on the lack of Multiple comments were received most cases, the information received did perceived consultation prior to asserting that child labor and forced or not provide sufficient description, data publication of the initial determination indentured child labor did not exist or or evidence to demonstrate that forced proposing to update EO List. were not pervasive in the production of child labor is not being used in the Concerning the date and reliability of a variety of products. However, these production process. Examples of the sources, the Department of Labor assertions were not substantiated specific limitations of the information considered information up to seven through the provision of data or received included, submission of years old at the time of receipt. More information to demonstrate that the general and broad statements describing current information has been generally assertions were true. When analyzing monitoring and auditing programs given priority, and information older comments, the information provided without including details; submissions than seven years generally has not been was reviewed to determine if it negated only related to products that are considered, with the exception of child the original conclusion published in the inspected for export rather than labor survey data, which the initial determination or if it industry as a whole; examples of Department of Labor has found to be demonstrated that forced or indentured individual monitoring and auditing reliable over a longer period of time. child labor has been significantly forms without presentation of and The Department of Labor’s experience is reduced or eliminated. In all cases, analysis of overall data collected; that the use of forced or indentured except carpets from India (see below), presentation of information only at the child labor in a country or in the such information was not provided. primary factory level and not down the production of a particular product supply chain; and lack of evidence of typically persists for many years, B. Comments on Efforts To Combat explicit monitoring for forced or particularly when no meaningful action Forced or Indentured Child Labor indentured child labor. It is important to is taken to combat it. Information about Multiple comments from governments clarify that the EO List does not make such exploitive activities is often and industry groups were submitted distinctions between products that are actively concealed and therefore that provided detailed descriptions of exported or those that are produced for information that is several years old can legislation, policies and efforts to domestic consumption, nor does it still provide useful context for more combat child labor and forced or distinguish between products produced current information. When determining indentured child labor generally, and in in a main/final establishment versus whether a source should be included, some cases, in particular sectors. This products produced by suppliers and the following factors were considered information was considered carefully contractors further down the supply either from primary or secondary and, while the important role of setting chain. sources: the methodology, prior a solid legislative and policy framework One submission did provide publications, degree of familiarity and and implementing initiatives by information that addressed many of the experience with international labor governments, industry and third party limitations described above. This standards, and/or reputation for groups is clear, information on such submission described the nation-wide, accuracy and objectivity. efforts alone, without evidence that third party monitoring of registered Some submissions raised concern that indicates that the efforts had carpet looms in India, gave details of the the ‘‘reasonable basis to believe’’ significantly reduced or eliminated monitoring program of registered looms standard is relatively low. This standard forced or indentured child labor, was and provided detailed analysis of data was established in EO13126 and the not sufficient to remove an item from results related to child labor. Such Department believes that the standard is the EO List. Inclusion on the EO List detailed information on the monitoring appropriate given the nature of the EO indicates that the three Departments of registered looms provided an analysis List and the challenge in finding data. have a reasonable basis to believe forced suggesting that child labor, including The EO List does not reflect a or indentured child labor ‘‘might have’’ forced child labor, has been determination that forced or indentured been used in the production of the significantly reduced in the production child labor actually was used to produce named products and evidence of efforts of carpets in India. While the a particular product. Rather, it alone would not be enough to require submission only addressed registered establishes the need for further inquiry removal of a product from the EO List. looms, it provided enough information by a Federal contractor who wishes to The Department of Labor will continue to warrant further consideration of the supply the product, in order to make to assess the progress of these efforts matter especially given that a sure that forced or indentured child and welcomes further information from Department of Labor contractor is labor was not, in fact, used. The factors the public on the results of these efforts, undertaking extensive research on child consider in determining whether a in particular, evidence of actions and and forced labor in carpet production in ‘‘reasonable basis to believe’’ exists for initiatives that have significantly South Asia, including India. The the inclusion of a product on the EO reduced if not eliminated forced or Department expects to receive List are set forth in the Department of indentured child labor in the information on the use of forced child Labor’s January 18, 2001, Procedural production of a specific product named labor on both registered and Guidelines (66 FR 5351), as well as the on the list. unregistered looms through this Department’s September 11, 2009,

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Notice of Initial Determination (74 FR review and available data sources are Security. The enforcement of the 46794). different. procurement regulation (48 CFR subpart 22.15) issued by the General Services Several submissions from both G. Comments Related to the Trafficking Administration pursuant to the EO falls governments and industry groups Victims Protection Reauthorization Act to the various procurement offices in described their frustration at not being List of Goods Made With Child Labor or each of the Executive Branch agencies. consulted prior to publication of the Forced Labor initial determination on September 11, It is up to each agency to determine 2009. EO13126 does not require the Multiple submissions included what guidance, if any, is provided to Department to engage in such information that addressed goods contractors on the EO regulation, as well consultations, although the Department named on the List of Goods Made with as to determine how they monitor did undertake a series of activities to Child Labor or Forced Labor pursuant to compliance with the EO regulation. Any gather information from the public on the 2005 Trafficking Victims Protection changes to the content of regulation fall child labor and forced labor more Reauthorization Act (TVPRA List), under the authority of the General broadly prior to publication of the which was published on the same date Services Administration. as the proposed update to the EO List. initial determination, including a public Specific areas where clarifications The Department would like to clarify request for information published in the were requested related to the type and that these two lists are produced under Federal Register and a public hearing state of the products listed. It was stated separate mandates and the public on May 28, 2008. Additionally, the that product descriptions were often too comment period identified for primary purpose of the initial broad and it was suggested that submissions relevant to the EO List determination proposing to update the products be named using the initial determination did not apply to EO List and the accompanying 90-day harmonized tariff schedule. We believe the TVPRA List. EO13126 is intended to public comment period was to gather that the descriptions are sufficiently ensure that Federal agencies enforce additional information from the public specific based on the nature of the list laws relating to forced or indentured and a wide variety of stakeholders prior and the types of information that are child labor in the procurement process. available. The EO does not require the to publication of the final Thus, the EO List differs from the use of the harmonized tariff schedule in determination. TVPRA List, which is intended to the products list. At this time, the E. Comments Related to Impact of the promote efforts to monitor and combat Departments do not have reason to List on Industries and Exports forced labor and child labor in the believe that the use of such terminology production of goods in foreign in the EO List would result in more Some comments raised concerns that countries. The EO on Federal efficient implementation of EO 13126. being named on the EO List would procurement applies only to the goods Additionally, it was requested that the negatively affect their trade and export on the EO List, not to those on the Department of Labor clarify that 48 CFR income. It is important to note that TVPRA List. In addition, the EO List subpart 22.15 only applies to the end while the scope of the EO List is global, covers forced or indentured child labor, product named on the EO List. It is not the application of EO13126’s while the TVPRA List focuses on a the Department’s role to interpret the requirements is narrow. The EO only broader population, including adults in applicability of the regulation on behalf affects products being procured by the forced labor and children in exploitive of the General Services Administration. U.S. Government. It is designed to make labor that is not necessarily forced or However, the Department of Labor can sure that U.S. Federal agencies do not indentured. clarify that the placement of a good on buy products made with forced or While the process for updating the EO the EO List depends on the stage of indentured child labor. The EO List does not apply to the TVPRA List, production at which forced or reinforces the current law (the Tariff Act the ongoing maintenance of the TVPRA indentured child labor was involved. of 1930, 19 U.S.C. 1307, enforced by the list is governed by procedural For example, if forced child labor was Department of Homeland Security) guidelines that are available at http:// used in the extraction, harvesting, prohibition on the import of products www.dol.gov/federalregister/ assembly, or production of raw made with forced or indentured child PdfDisplay.aspx?DocId=20376. The materials or component articles, and labor. There is nothing in the EO that Department of Labor considered all these materials or articles are provides for trade sanctions or penalties information received during the EO List subsequently used under non-violative against countries. Rather, EO13126 public comment period addressing conditions in the manufacture or requires U.S. Federal contractors who goods named on the TVPRA List as an processing of a final good, only the raw furnish a product on the EO List to official TVPRA list submission and materials or component articles are on certify that forced or indentured child provided that information to the the EO List and only for those countries labor was not used to make the product. appropriate Department staff for their where they were extracted, harvested, F. Comments on Discrepancies Between review. Additional information on the assembled, or produced. If forced or the 2001 List and the Current List TVPRA List can be found at http:// indentured child labor was used in both www.dol.gov/ILAB/programs/ocft/ the production or extraction of raw Several comments noted that products tvpra.htm. materials or component articles and the are included in the proposed update to manufacture or processing of a final H. Comments Related to Procurement of the EO List that were not included in good, then both the raw materials or Products Named on the List the existing EO List, most specifically component articles and the final good carpets from India, Nepal and Pakistan. Two comments were received urging are included on the EO List. The research for the current proposed additional measures related to update to the EO List covers information enforcement of EO 13126 and III. Final List of Products published from 2001 onward, which clarifications related to the EO List. The We have determined that it would be includes information not available at the Department of Labor’s only mandate appropriate to publish a final list of time of the publication of the 2001 EO pursuant to the EO is to produce the EO products that comprises the products List. Therefore, the product lists will not List in collaboration with the included in the initial determination, necessarily be the same as the period of Departments of State and Homeland with the exception of carpets from

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India. Other than with regard to the one Product Countries STATUS OF MEETING: Closed. A portion of exception described above, no new the meeting of the Board of Directors information was provided through Stones ...... India, Nepal. may be closed to the public pursuant to public comments to negate the original Sugarcane ...... Bolivia, Burma. a vote of the Board so the Board can conclusion or to indicate that forced or Teak ...... Burma. consider and perhaps act on the indentured child labor has been Tilapia (fish) ...... Ghana. recommendation of the Search Tobacco ...... Malawi. ‘‘ significantly reduced or eliminated in Toys ...... China. Committee for LSC President ( Search the production of the listed products. Committee’’) regarding selection of an The basis for including those products The bibliographies providing the basis executive search recruiter. on the list is set forth in the Department for including each product on the list This closure will be authorized by the of Labor’s September 11, 2009, notice in are available on the Internet at http:// relevant provisions of the Government the Federal Register (74 FR 46794). As www.dol.gov/ILAB/regs/eo13126/ in the Sunshine Act [5 U.S.C. 552b(c)(4) noted in the September 11 notice, main.htm. and (6)] and LSC’s implementing information provided in a public regulation 45 CFR 1622.5(c) 1 and (e).2 submission by Free the Slaves, alleging Signed at Washington, DC, this 7th day of A verbatim written transcript will be forced or indentured child labor in the July 2010. made of the closed session of the Board cocoa industry in Cote d’Ivoire, and a Sandra Polaski, meeting. However, the transcript of any public submission by State Department Deputy Undersecretary, Bureau of portions of the closed session falling Watch, alleging forced or indentured International Labor Affairs. within the relevant provisions of the child labor in the production of eight [FR Doc. 2010–16886 Filed 7–19–10; 8:45 am] Government in the Sunshine Act [5 products in China, both filed pursuant BILLING CODE 4510–28–P U.S.C. 552b(c)(4) and (6)] and LSC’s to section D of the Procedural implementing regulation 45 CFR Guidelines (66 FR 5351), was 1622.5(c) and (e), will not be available considered in finalizing the update to for public inspection. A copy of the the EO List. This final determination LEGAL SERVICES CORPORATION General Counsel’s Certification that in completes consideration of the two Sunshine Act Meeting of the Board of his opinion the closing is authorized by submissions. The final list of products Directors law will be available upon request. appears below. Matters To Be Considered Based on recent, credible, and Amended Notice Changes to the appropriately corroborated information Meeting Time Open Session from various sources, the Department of 1. Approval of the agenda. Labor, the Department of State, and the NOTICE: The Legal Services Corporation 2. Consider and act on Resolution Department of Homeland Security have (LSC) is announcing an amendment to 2010–009 which authorizes the Board concluded that there is a reasonable the notice of the meeting of the Board Chairman to establish a Fiscal Oversight basis to believe that the following of Directors. The meeting, originally Taskforce. products, identified by their country of noticed to be convened at 11 a.m., on 3. Public comment. origin, might have been mined, July 21, 2010, announced in the Federal produced, or manufactured by forced or Register dated July 16, 2010, Volume Closed Session indentured child labor: 75, Number 136. The amendment is being made to reflect a change to the 4. Consider and act on recommendation of the Search Product Countries meeting time. There are no other changes. Committee for LSC President regarding Bamboo ...... Burma. selection of an executive search AMENDED TIME: The Board of Directors Beans (green, soy, Burma. recruiter. yellow). will meet telephonically on July 21, Brazil Nuts/Chestnuts Bolivia. 2010 commencing at 10:30 a.m., Eastern Open Session Bricks ...... Burma, China, India, Daylight Time. 5. Consider and act on other business. Nepal, Pakistan. LOCATION: Legal Services Corporation, 6. Consider and act on motion to Carpets ...... Nepal, Pakistan. 3333 K Street, NW., Washington, DC, adjourn meeting. Charcoal ...... Brazil. 20007, 3rd Floor Conference Center. Coal ...... Pakistan. CONTACT PERSON FOR INFORMATION: Coca (stimulant plant) Colombia. PUBLIC OBSERVATION: For all meetings Kathleen Connors, Executive Assistant Cocoa ...... Cote d’Ivoire, Nigeria. and portions thereof open to public to the President, at (202) 295–1500. Coffee ...... Cote d’Ivoire. observation, members of the public that Questions may be sent by electronic Cotton ...... Benin, Burkina Faso, wish to listen to the proceedings may do mail to China, Tajikistan, so by following the telephone call-in [email protected]. Uzbekistan. directions given below. You are asked to Cottonseed (hybrid) .. India. SPECIAL NEEDS: Upon request, meeting Diamonds ...... Sierra Leone. keep your telephone muted to eliminate notices will be made available in Electronics ...... China. background noises. From time to time alternate formats to accommodate visual Embroidered Textiles India, Nepal. the Chairman may solicit comments and hearing impairments. Individuals (zari). from the public. who have a disability and need an Garments ...... Argentina, India, accommodation to attend the meeting Thailand. Call-In Directions for Open Session(s): Gold ...... Burkina Faso. • Call toll-free number: 1 (866) 451– 1 45 CFR 1622.5(c)—Protects information the Granite ...... Nigeria. 4981; Gravel (crushed Nigeria. disclosure of which would disclose trade secrets • When prompted, enter the and commercial or financial information which is stones). following numeric pass code: confidential. Pornography ...... Russia. 2 45 CFR 1622.5(e)–45 CFR 5(e)—Protects Rice ...... Burma, India, Mali. 5907707348; • information the disclosure of which would Rubber ...... Burma. When connected to the call, please constitute a clearly unwarranted invasion of Shrimp ...... Thailand. ‘‘MUTE’’ your telephone immediately. personal privacy.

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may notify Kathleen Connors at (202) 8. The estimated number of annual For the Nuclear Regulatory Commission. 295–1500 or respondents: 4.666. Tremaine Donnell, _ _ FR NOTICE [email protected]. 9. An estimate of the total number of NRC Clearance Officer, Office of Information Dated: July 16, 2010. hours needed annually to complete the Services. Patricia D. Batie, requirement or request: 204,075 [FR Doc. 2010–17662 Filed 7–19–10; 8:45 am] Corporate Secretary. (191,774 reporting, 12,301 BILLING CODE 7590–01–P [FR Doc. 2010–17789 Filed 7–16–10; 4:15 pm] recordkeeping). BILLING CODE 7050–01–P 10. Abstract: 10 CFR Part 52 NUCLEAR REGULATORY establishes requirements for the granting COMMISSION of ESPs, certifications of standard NPP NUCLEAR REGULATORY designs, and licenses which combine in [Docket No. 50–443; NRC–2010–0206] COMMISSION a single license a construction permit, and an operating license with Nextera Energy Seabrook; Notice of [Docket No. NRC–2010–0118] conditions, OLs, MLs, SDAs, and pre- Intent To Prepare an Environmental application reviews of site suitability Impact Statement and Conduct the Agency Information Collection issues. Part 52 also establishes Scoping Process for Seabrook Station, Activities: Submission for the Office of requirements for renewal of those Unit 1 Management and Budget (OMB) approvals, permits, certifications, and Review; Comment Request NextEra Energy Seabrook, LLC has licenses; amendments to them; submitted an application for renewal of AGENCY: U.S. Nuclear Regulatory exemptions from certifications; and Facility Operating License No. NPF–86 Commission (NRC). variances from ESPs. for an additional 20 years of operation ACTION: Notice of OMB review of NRC uses the information collected to at Seabrook Station, Unit 1 (Seabrook information collection and solicitation assess the adequacy and suitability of an Station). Seabrook Station is located 13 of public comment. applicant’s site, plant design, miles south of Portsmouth, NH. construction, training and experience, The current operating license for SUMMARY: The NRC has recently plans and procedures for the protection Seabrook Station expires on March 15, submitted to the Office of Management of public health and safety. The NRC 2030. The application for renewal, dated and Budget (OMB) for review the review of such information and the May 25, 2010, was submitted pursuant following proposal for the collection of findings derived from that information to Title 10 of the Code of Federal information under the provisions of the form the basis of NRC decisions and Regulations (10 CFR) Part 54, which Paperwork Reduction Act of 1995 (44 actions concerning the issuance, included an environmental report (ER). U.S.C. Chapter 35). The NRC hereby modification or revocation of site A separate notice of receipt and informs potential respondents that an permits, DCs, COLs, and MLs for NPPs. availability of the application was agency may not conduct or sponsor, and published in the Federal Register on that a person is not required to respond A copy of the final supporting June 16, 2010 (75 FR 34180). A notice to, a collection of information unless it statement may be viewed free of charge of acceptance for docketing of the displays a currently valid OMB control at the NRC Public Document Room, One application and opportunity for hearing number. The NRC published a Federal White Flint North, 11555 Rockville regarding renewal of the facility Register Notice with a 60-day comment Pike, Room O–1 F21, Rockville, MD operating license is also being published period on this information collection on 20852. OMB clearance requests are in the Federal Register. The purpose of March 24, 2010. available at the NRC worldwide Web this notice is to inform the public that 1. Type of submission, new, revision, site: http://www.nrc.gov/public-involve/ the U.S. Nuclear Regulatory or extension: Revision. doc-comment/omb/index.html. The Commission (NRC) will be preparing an 2. The title of the information document will be available on the NRC environmental impact statement (EIS) collection: 10 CFR Part 52, ‘‘Licenses, home page site for 60 days after the related to the review of the license Certifications, and Approvals for signature date of this notice. renewal application and to provide the Nuclear Power Plants.’’ Comments and questions should be public an opportunity to participate in 3. Current OMB approval number: directed to the OMB reviewer listed the environmental scoping process, as 3150–0151. below by August 19, 2010. Comments defined in 10 CFR 51.29. 4. The form number if applicable: Not received after this date will be As outlined in 36 CFR 800.8, applicable. considered if it is practical to do so, but ‘‘Coordination with the National 5. How often the collection is assurance of consideration cannot be Environmental Policy Act,’’ the NRC required: Whenever applications are given to comments received after this plans to coordinate compliance with made for Early Site Permits (ESPs), date. Section 106 of the National Historic Standard Design Certifications (SDCs), Christine J. Kymn, Desk Officer, Preservation Act (NHPA) in meeting the Combined Licenses (COLs), Standard Office of Information and Regulatory requirements of the National Design Approvals (SDAs), or Affairs (3150–0151), NEOB–10202, Environmental Policy Act of 1969 Manufacturing Licenses (MLs); and Office of Management and Budget, (NEPA). Pursuant to 36 CFR 800.8(c), every 10 to 20 years for applications for Washington, DC 20503. the NRC intends to use the NEPA renewal. process and documentation for the Comments can also be e-mailed to 6. Who will be required or asked to preparation of the EIS on the proposed [email protected] or report: Designers of commercial nuclear action to comply with Section 106 of the submitted by telephone at (202) 395– power plants (NPPs), electric power NHPA in lieu of the procedures set forth 4638. companies, and any person eligible at 36 CFR 800.3 through 800.6. under the Atomic Energy Act to apply The NRC Clearance Officer is In accordance with 10 CFR 51.53(c) for ESPs, SDCs, COLs, or MLs. Tremaine Donnell, (301) 415–6258. and 10 CFR 54.23, NextEra Energy 7. An estimate of the number of Dated at Rockville, Maryland, this 13th day Seabrook submitted the ER as part of the annual responses: 11.332. of July 2010. application. The ER was prepared

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pursuant to 10 CFR Part 51 and is a. Define the proposed action, which p.m., as necessary. The second session publicly available at the NRC Public is to be the subject of the supplement to will convene at 7 p.m., with a repeat of Document Room (PDR), located at One the GEIS; the overview portions of the first White Flint North, 11555 Rockville b. Determine the scope of the meeting, and will continue until 9 p.m., Pike, Rockville, Maryland 20852, or supplement to the GEIS and identify the as necessary. Both sessions will be held from the NRC’s Agencywide Documents significant issues to be analyzed in at the Galley Hatch Conference Center, Access and Management System depth; 815 Lafayette Road, Hampton, NH (ADAMS). The ADAMS Public c. Identify and eliminate from 03842. Both meetings will be Electronic Reading Room is accessible at detailed study those issues that are transcribed and will include: (1) An http://www.nrc.gov/reading-rm/ peripheral or that are not significant; overview by the NRC staff of the NEPA adams.html. From this page, the public d. Identify any environmental environmental review process, the can gain entry into ADAMS, which assessments and other ElSs that are proposed scope of the supplement to the provides text and image files of NRC’s being or will be prepared that are GEIS, and the proposed review public documents. The ADAMS related to, but are not part of, the scope schedule; and (2) the opportunity for Accession Number for the Seabrook of the supplement to the GEIS being interested government agencies, Station ER is ML101590094. Persons considered; organizations, and individuals to submit who do not have access to ADAMS or e. Identify other environmental comments or suggestions on the who encounter problems in accessing review and consultation requirements environmental issues or the proposed the documents located in ADAMS related to the proposed action; scope of the supplement to the GEIS. should contact the NRC’s PDR reference f. Indicate the relationship between Additionally, the NRC staff will host staff by telephone at 800–397–4209 (or the timing of the preparation of the informal discussions one hour prior to 301–415–4737) or by e-mail at environmental analyses and the the start of each session at the same [email protected]. The ER may also Commission’s tentative planning and location. No formal comments on the be viewed on the Internet at http:// decision-making schedule; proposed scope of the supplement to the www.nrc.gov/reactors/operating/ g. Identify any cooperating agencies GEIS will be accepted during the licensing/renewal/applications/ and, as appropriate, allocate informal discussions. To be considered, seabrook.html. In addition, paper copies assignments for preparation and comments must be provided either at of the ER are available to the public near schedules for completing the the transcribed public meetings or in the site at the Seabrook Library, 25 supplement to the GEIS to the NRC and writing, as discussed below. Liberty Street, Seabrook, NH 03874 and any cooperating agencies; and Persons may register to attend or at the Amesbury Public Library, 149 h. Describe how the supplement to present oral comments at the meetings Main Street, Amesbury, MA 01913. the GEIS will be prepared and include on the scope of the NEPA review by Public comments and supporting any contractor assistance to be used. contacting the NRC Project Manager, materials related to this notice can be Mr. Jeremy Susco, by telephone at 800– The NRC invites the following entities found at the Federal rulemaking Web 368–5642, extension 2927, or by e-mail to participate in scoping: site, http://www.regulations.gov, by at [email protected] no later than searching on Docket ID NRC–2010– a. The applicant, NextEra Energy August 12, 2010. Members of the public 0206. Seabrook; may also register to speak at the meeting This notice advises the public that the b. Any Federal agency that has within 15 minutes of the start of each NRC intends to gather the information jurisdiction by law or special expertise session. Individual oral comments may necessary to prepare a plant-specific with respect to any environmental be limited by the time available, supplement to the NRC’s ‘‘Generic impact involved or that is authorized to depending on the number of persons Environmental Impact Statement (GEIS) develop and enforce relevant who register. Members of the public for License Renewal of Nuclear Plants,’’ environmental standards; who have not registered may also have (NUREG–1437) related to the review of c. Affected State and local an opportunity to speak if time permits. the application for renewal of the government agencies, including those Public comments will be considered in Seabrook Station operating license for authorized to develop and enforce the scoping process for the supplement an additional 20 years. Possible relevant environmental standards; to the GEIS. Mr. Susco will need to be alternatives to the proposed action d. Any affected Indian tribe; contacted no later than August 5, 2010, (license renewal) include no action and e. Any person who requests or has if special equipment or accommodations reasonable alternative energy sources. requested an opportunity to participate are needed to attend or present The NRC is required by 10 CFR 51.95 in the scoping process; and information at the public meeting so to prepare a supplement to the GEIS in f. Any person who has petitioned or that the NRC staff can determine connection with the renewal of an intends to petition for leave to whether the request can be operating license. This notice is being intervene. accommodated. published in accordance with NEPA In accordance with 10 CFR 51.26, the Members of the public may submit and the NRC’s regulations found at 10 scoping process for an EIS may include comments by any one of the following CFR Part 51. a public scoping meeting to help methods. Please include Docket ID The NRC will first conduct a scoping identify significant issues related to a NRC–2010–0206 in the subject line of process for the supplement to the GEIS proposed activity and to determine the the comments. Comments submitted in and, as soon as practicable thereafter, scope of issues to be addressed in an writing or in electronic form will be will prepare a draft supplement to the EIS. The NRC has decided to hold posted on the NRC website and on the GEIS for public comment. Participation public meetings for the Seabrook Station Federal rulemaking website, http:// in the scoping process by members of license renewal supplement to the GEIS. www.regulations.gov. Because the public and local, State, Tribal, and The scoping meetings will be held on comments will not be edited to remove Federal government agencies is August 19, 2010, and there will be two any identifying or contact information, encouraged. The scoping process for the sessions to accommodate interested the NRC cautions against including any supplement to the GEIS will be used to parties. The first session will convene at information that the submitter does not accomplish the following: 1:30 p.m. and will continue until 3:30 want to be publicly disclosed. The NRC

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requests that any party soliciting or SUPPLEMENTARY INFORMATION: For the Nuclear Regulatory Commission. aggregating comments received from Andrea D. Valentin, I. Introduction other persons for submission to the NRC Chief, Regulatory Guide Development Branch, inform those persons that the NRC will The U.S. Nuclear Regulatory Division of Engineering, Office of Nuclear not edit their comments to remove any Commission (NRC) is issuing a new Regulatory Research. identifying or contact information and, guide in the agency’s ‘‘Regulatory [FR Doc. 2010–17649 Filed 7–19–10; 8:45 am] therefore, they should not include any Guide’’ series. This series was developed BILLING CODE 7590–01–P information in their comments that they to describe and make available to the do not want publicly disclosed. Submit comments electronically via public information such as methods that NUCLEAR REGULATORY the Federal rulemaking website: Go to are acceptable to the NRC staff for COMMISSION http://www.regulations.gov and search implementing specific parts of the [NRC–2010–0002] for documents filed under Docket ID agency’s regulations, techniques that the staff uses in evaluating specific NRC–2010–0206. Address questions Sunshine Act Notice about NRC dockets to Carol Gallagher at problems or postulated accidents, and 301–492–3668 or via e-mail at data that the staff needs in its review of DATES: Weeks of July 19, 26, August 2, [email protected]. applications for permits and licenses. 9, 16, 23, 2010. Mail comments to: Chief, Rulemaking Regulatory Guide 8.40 was issued PLACE: Commissioners’ Conference and Directives Branch (RADB), Division with a temporary identification as Draft Room, 11555 Rockville Pike, Rockville, of Administrative Services, Office of Regulatory Guide, DG–8039. This guide Maryland. Administration, Mail Stop: TWB–05– B01M, U.S. Nuclear Regulatory describes dosimetry methods that the STATUS: Public and Closed. NRC considers acceptable for Commission, Washington, DC 20555– Week of July 19, 2010 0001. Fax comments to RADB at 301– determining the effective dose There are no meetings scheduled for 492–3446. Comments will be available equivalent (EDE) for external (EDEX) the week of July 19, 2010. electronically and accessible at http:// radiation exposures. These methods www.regulations.gov and through provide a conservative estimate of the Week of July 26, 2010—Tentative EDEX and may be used to calculate the ADAMS at http://www.nrc.gov/reading- There are no meetings scheduled for total effective dose equivalent (TEDE) in rm/adams.html. All comments must be the week of July 26, 2010. received by September 21, 2010. demonstrating compliance with TEDE- Participation in the scoping process based NRC regulatory requirements. Week of August 2, 2010—Tentative for the supplement to the GEIS does not II. Further Information There are no meetings scheduled for entitle participants to become parties to the week of August 2, 2010. the proceeding to which the supplement In September 2009, DG–8039 was to the GEIS relates. Matters related to Week of August 9, 2010—Tentative published with a public comment participation in any hearing are outside period of 60 days from the issuance of Thursday, August 12, 2010 the scope of matters to be discussed at this public meeting. the guide. The public comment period 9:30 a.m. Meeting with Organization of closed on November 26, 2009. The Agreement States (OAS) and Dated at Rockville, Maryland, this 13th day staff’s responses to the public comments of July, 2010. Conference of Radiation Control received are located in the NRC’s For the Nuclear Regulatory Commission. Program Directors (CRCPD) (Public Agencywide Documents Access and Meeting) (Contact: Cindy Flannery, Bo M. Pham, Management System under Accession 301 415–0223). Chief, Projects Branch 1, Division of License Number ML100620118. The regulatory This meeting will be webcast live at Renewal, Office of Nuclear Reactor Regulation. analysis may be found in ADAMS under the Web address—http://www.nrc.gov. Accession No. ML101940038. Electronic [FR Doc. 2010–17652 Filed 7–19–10; 8:45 am] Week of August 16, 2010—Tentative copies of RG 8.40 are available through BILLING CODE 7590–01–P the NRC’s public Web site under There are no meetings scheduled for ‘‘Regulatory Guides’’ at http:// the week of August 16, 2010. NUCLEAR REGULATORY www.nrc.gov/reading-rm/doc- Week of August 23, 2010—Tentative COMMISSION collections/. There are no meetings scheduled for [NRC–2009–0425] In addition, regulatory guides are the week of August 23, 2010. available for inspection at the NRC’s * * * * * Final Regulatory Guide: Issuance, Public Document Room (PDR) located at *The schedule for Commission Availability 11555 Rockville Pike, Rockville, meetings is subject to change on short AGENCY: Nuclear Regulatory Maryland. The PDR’s mailing address is notice. To verify the status of meetings, Commission. USNRC PDR, Washington, DC 20555– call (recording)—(301) 415–1292. ACTION: Notice of Issuance and 0001. The PDR can also be reached by Contact person for more information: Availability of Regulatory Guide, RG telephone at (301) 415–4737 or (800) Rochelle Bavol, (301) 415–1651. 8.40, ‘‘Methods for Measuring Effective 397–4205, by fax at (301) 415–3548, and * * * * * by e-mail to [email protected]. Dose Equivalent From External Additional Information Exposure.’’ Regulatory guides are not copyrighted, and Commission approval By a vote of 5–0 on July 13, 2010, the FOR FURTHER INFORMATION CONTACT: is not required to reproduce them. Commission determined pursuant to Roger Pedersen, U.S. Nuclear Regulatory U.S.C. 552b(e) and § 9.107(a) of the Commission, Washington, DC 20555– Dated at Rockville, Maryland, this 13th day Commission’s rules that Affirmation of: 0001, telephone: (301) 415–3162 or e- of July 2010. David Geisen, NRC Staff Petition for mail [email protected]. Review of LBP–09–24 (Aug. 28, 2009) be

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held on July 16, 2010, with less than FOR FURTHER INFORMATION CONTACT: The Notice advances reasons why the one week notice to the public. Stephen L. Sharfman, General Counsel, instant GEPS 2 contract fits within the * * * * * [email protected] or 202–789– Mail Classification Schedule language The NRC Commission Meeting 6820. for GEPS 2. The Postal Service identifies Schedule can be found on the Internet SUPPLEMENTARY INFORMATION: customer-specific information, general contract terms and other differences that at: http://www.nrc.gov/about-nrc/policy- Table of Contents making/schedule.html. distinguish the instant contract from the * * * * * I. Introduction baseline GEPS 2 agreement, all of which The NRC provides reasonable II. Notice of Filing are highlighted in the Notice. Notice at III. Ordering Paragraphs accommodation to individuals with 3–6. disabilities where appropriate. If you I. Introduction The Postal Service contends that the need a reasonable accommodation to On July 13, 2010, the Postal Service instant contract is functionally participate in these public meetings, or filed a notice announcing that it has equivalent to previously filed GEPS need this meeting notice or the entered into an additional Global contracts and is substantially similar to transcript or other information from the Expedited Package Services 2 (GEPS 2) that in Docket No. CP2009–50 in terms public meetings in another format (e.g. contract.1 The Postal Service believes of the product being offered, the market braille, large print), please notify Angela the instant contract is functionally in which it is offered, and its cost Bolduc, Chief, Employee/Labor equivalent to previously submitted characteristics. Id. 2–3. See also id. at 6. Relations and Work Life Branch, at 301– GEPS 2 contracts, and is supported by (‘‘[T]he relevant cost and market 492–2230, TDD: 301–415–2100, or by e- Governors’ Decision No. 08–7, attached characteristics are similar, if not the mail at [email protected]. to the Notice and originally filed in same, for this contract and the baseline mailto:[email protected]:[email protected] Docket No. CP2008–4. Id. at 1, GEPS 2 contract.’’). Determinations on requests for Attachment 3. The Notice also explains The Postal Service also contends that reasonable accommodation will be that Order No. 86, which established its filings demonstrate that the new made on a case-by-case basis. GEPS 1 as a product, also authorized GEPS 2 contract complies with the * * * * * functionally equivalent agreements to be requirements of 39 U.S.C. 3633. It This notice is distributed included within the product, provided requests that the contract be included electronically to subscribers. If you no that they meet the requirements of 39 within the GEPS 2 product. Id. at 6. longer wish to receive it, or would like U.S.C. 3633. Id. at 1. In Order No. 290, to be added to the distribution, please the Commission approved the GEPS 2 II. Notice of Filing contact the Office of the Secretary, product.2 Washington, DC 20555 (301–415–1969), The instant contract. The Postal The Commission establishes Docket or send an e-mail to Service filed the instant contract No. CP2010–66 for consideration of [email protected]. pursuant to 39 CFR 3015.5. In addition, matters related to the contract identified the Postal Service contends that the in the Postal Service’s Notice. Dated: July 15, 2010. contract is in accordance with Order No. Interested persons may submit Rochelle C. Bavol, 86. The term of the contract is 1 year comments on whether the Postal Policy Coordinator, Office of the Secretary. from the date the Postal Service notifies Service’s contract is consistent with the [FR Doc. 2010–17771 Filed 7–16–10; 4:15 pm] the customer that all necessary policies of 39 U.S.C. 3632, 3633 or 3642. BILLING CODE 7590–01–P regulatory approvals have been Comments are due no later than July 22, received. 2010. The public portions of these In support of its Notice, the Postal filings can be accessed via the POSTAL REGULATORY COMMISSION Service filed four attachments as Commission’s Web site (http:// follows: www.prc.gov). [Docket No. CP2010–66; Order No. 488] 1. Attachment 1–a redacted copy of The Commission appoints Paul L. New Postal Product the contract; 2. Attachment 2–a certified statement Harrington to serve as Public AGENCY: Postal Regulatory Commission. required by 39 CFR 3015.5(c)(2); Representative in the captioned filings. ACTION: Notice. 3. Attachment 3–a redacted copy of III. Ordering Paragraphs Governors’ Decision No. 08–07, which SUMMARY: The Commission is noticing a establishes prices and classifications for It is ordered: recently-filed Postal Service request to GEPS contracts, a description of 1. The Commission establishes Docket add a Global Expedited Package applicable GEPS contracts, formulas for No. CP2010–66 for consideration of Services 2 (GEPS 2) contract to the prices, an analysis and certification of matters raised by the Postal Service’s existing GEPS 2 product. This notice the Governors’ vote; and Notice. addresses procedural steps associated 4. Attachment 4–an application for with this filing. non-public treatment of materials to 2. Comments by interested persons in DATES: Comments are due: July 22, maintain redacted portions of the these proceedings are due no later than 2010. contract and supporting documents July 22, 2010. under seal. ADDRESSES: Submit comments 3. Pursuant to 39 U.S.C. 505, Paul L. electronically via the Commission’s Harrington is appointed to serve as the 1 Notice of United States Postal Service Filing of Filing Online system at http:// officer of the Commission (Public Functionally Equivalent Global Expedited Package Representative) to represent the www.prc.gov. Commenters who cannot Services 2 Negotiated Service Agreement and submit their views electronically should Application for Non-Public Treatment of Materials interests of the general public in these contact the person identified in the FOR Filed Under Seal, July 13, 2010 (Notice). proceedings. 2 FURTHER INFORMATION CONTACT Docket No. CP2009–50, Order Granting section Clarification and Adding Global Expedited Package 4. The Secretary shall arrange for by telephone for advice on alternatives Services 2 to the Competitive Product List, August publication of this order in the Federal to electronic filing. 28, 2009 (Order No. 290). Register.

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By the Commission. • Random sampling as a tool for will be kept of all RIAP proceedings and Shoshana M. Grove, detecting fraud, waste, and abuse. will be available for public inspection Secretary. In keeping with FACA procedures, on http://www.recovery.gov. [FR Doc. 2010–17613 Filed 7–19–10; 8:45 am] members of the public are invited to provide comments to the RIAP. The Ivan J. Flores, BILLING CODE 7710–FW–S preference of the RIAP is to have Paralegal Specialist, Recovery Accountability members of the public provide written and Transparency Board. comments addressing any of the matters [FR Doc. 2010–17589 Filed 7–19–10; 8:45 am] RECOVERY ACCOUNTABILITY AND listed above no later than July 29, 2010. BILLING CODE 6820–GA–P TRANSPARENCY BOARD There will be limited space for this meeting; therefore, members of the Agenda and Notice of Partially Closed public who have submitted written Meeting of the Recovery Independent statements addressing matters outlined SMALL BUSINESS ADMINISTRATION Advisory Panel above will be given priority in attending this meeting and speaking to the RIAP. [Disaster Declaration #12151 and #12152] AGENCY: Recovery Accountability and The next highest priority for attending Transparency Board. the meeting and speaking to the RIAP North Dakota Disaster Number ND– ACTION: Notice of partially closed will be those individuals who have 00022 meeting. signed up in advance by submitting their names via e-mail to the RIAP in AGENCY: U.S. Small Business SUMMARY: In accordance with the advance of the meeting. Members of the Administration. American Recovery and Reinvestment public who have submitted written Act of 2009, Public Law 111–5 ACTION: Amendment 2. comments and/or who have signed up (Recovery Act), and the Federal in advance will be given priority to Advisory Committee Act of 1972 SUMMARY: This is an amendment of the attend the meeting and be heard first in (FACA), the Recovery Accountability Presidential declaration of a major the order in which their written and Transparency Board’s (Board) disaster for Public Assistance Only for statements and/or sign-up e-mails were Recovery Independent Advisory Panel the State of North Dakota (FEMA–1907– received. Other members of the public (RIAP) will meet as indicated below. DR), dated 04/30/2010. will be heard in the order in which they Incident: Flooding. Notice of this meeting is required under sign up at the beginning of the meeting, Section 10(a)(2) of FACA. This notice is space permitting. A time limit will be Incident Period: 02/26/2010 and intended to notify the general public of placed on those members of the public continuing. their opportunity to attend the open wishing to speak at the meeting, with DATES: Effective Date: 07/13/2010. portion of the meeting. time allocated in accordance with the DATES: The RIAP meeting will be held number of people who have signed up Physical Loan Application Deadline on Thursday, August 5, 2010, from 1 indicating a desire to speak to the RIAP. Date: 06/29/2010. p.m. to 5 p.m. The RIAP will make every effort to hear Economic Injury (EIDL) Loan ADDRESSES: Hyatt Regency Cambridge, the views of all interested persons. The Application Deadline Date: 01/31/2011. 575 Memorial Drive, Cambridge, MA Chairperson of the RIAP is empowered ADDRESSES: Submit completed loan 02139. to conduct the meeting in a fashion that applications to: U.S. Small Business will, to the Chairperson’s judgment, FOR FURTHER INFORMATION CONTACT: Glen Administration, Processing and facilitate the orderly conduct of Walker, Executive Director, Recovery Disbursement Center, 14925 Kingsport business. You may submit written Independent Advisory Panel, 1717 Road, Fort Worth, TX 76155. comments by mail to 1717 Pennsylvania Pennsylvania Avenue, NW., Suite 700, Avenue, NW., Suite 700, Washington, FOR FURTHER INFORMATION CONTACT: A. Washington, DC 20006; Telephone 202– DC 20006. ‘‘RIAP comments’’ should be Escobar, Office of Disaster Assistance, 254–7900. written on the envelope. Persons U.S. Small Business Administration, SUPPLEMENTARY INFORMATION: Pursuant wishing to e-mail their written 409 3rd Street, SW., Suite 6050, to Section 1543 of the Recovery Act, the comments and/or sign up in advance to Washington, DC 20416. RIAP is charged with making speak to the RIAP at the meeting should SUPPLEMENTARY INFORMATION: The notice recommendations to the Board on send their written comments and/or of the President’s major disaster actions the Board could take to prevent names to [email protected] and write declaration for Private Non-Profit fraud, waste, and abuse of Recovery Act ‘‘August 5, 2010 RIAP public comment’’ organizations in the State of North funds. The purpose of the August 5, in the Subject line. Dakota, dated 04/30/2010, is hereby 2010 meeting is to allow the RIAP to The meeting will close to the public amended to include the following areas have an open dialogue, with input from at 4:15 p.m. under the authority of as adversely affected by the disaster. the public, on issues relating to fraud, Section 10(d) of FACA and under waste, and abuse of Recovery Act funds. exemption (7) of Section 552b(c) of the Primary Counties: Bottineau, McHenry, More specifically, the RIAP is interested Government in the Sunshine Act (Pub. Kidder, Renville, Ward. in obtaining input regarding the L. 92–463). During the closed portion of All other information in the original following matters: the meeting there will be a discussion declaration remains unchanged. • Actions the Board can take to that would disclose investigative (Catalog of Federal Domestic Assistance prevent fraud, waste, and abuse; techniques and procedures. A summary Numbers 59002 and 59008) • Transparency of entitlements and of the activities at the closed session tax benefits funded by the Recovery Act; and related matters which are James E. Rivera, • The public’s experience with informative to the public consistent Associate Administrator for Disaster obtaining information from with the policy of 5 U.S.C. 552b(c) will Assistance. Recovery.gov and how that experience be available to the public within [FR Doc. 2010–17659 Filed 7–19–10; 8:45 am] can be improved; and fourteen days of the meeting. Records BILLING CODE 8025–01–P

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SMALL BUSINESS ADMINISTRATION Incident Period: 06/13/2010 through SMALL BUSINESS ADMINISTRATION 06/15/2010. [Disaster Declaration #12206 and #12207] DATES: Effective Date: 07/13/2010. Small Business Size Standards: Waiver of the Nonmanufacturer Rule Oklahoma Disaster Number OK–00040 Physical Loan Application Deadline Date: 09/13/2010. AGENCY: U.S. Small Business AGENCY: U.S. Small Business Economic Injury (EIDL) Loan Administration. Administration. Application Deadline Date: 04/13/2011. ACTION: ACTION: Amendment 1. Notice of Waiver to the ADDRESSES: Submit completed loan Nonmanufacturer Rule for Configured SUMMARY: This is an amendment of the applications to: U.S. Small Business Tape Library Storage Equipment. Presidential declaration of a major Administration, Processing and disaster for Public Assistance Only for Disbursement Center, 14925 Kingsport SUMMARY: The U.S. Small Business the State of Oklahoma (FEMA–1917– Road, Fort Worth, TX 76155. Administration (SBA) is granting a class waiver of the Nonmanufacturer Rule for DR), dated 06/11/2010. FOR FURTHER INFORMATION CONTACT: A. Configured Tape Library Storage Incident: Severe Storms, Tornadoes, Escobar, Office of Disaster Assistance, Equipment, Product Service Code (PSC) and Straight-Line Winds. U.S. Small Business Administration, 7025 Automated Data Processing (ADP) Incident Period: 05/10/2010 through 409 3rd Street, SW., Suite 6050, Input/Output and Storage Devices, PSC 05/13/2010. Washington, DC 20416. 7035 ADP Support Equipment, and PSC DATES: Effective Date: 07/09/2010. SUPPLEMENTARY INFORMATION: Notice is 7045 ADP Supplies, under the North Physical Loan Application Deadline hereby given that as a result of the Date: 08/10/2010. American Industry Classification Administrator’s disaster declaration, System (NAICS) code 334112 (Computer Economic Injury (EIDL) Loan applications for disaster loans may be Application Deadline Date: 03/11/2011. Storage Device Manufacturing). The filed at the address listed above or other basis for waiver is that no small ADDRESSES: Submit completed loan locally announced locations. business manufacturers are supplying applications to: U.S. Small Business The following areas have been these classes of products to the Federal Administration, Processing and determined to be adversely affected by government. The effect of this waiver Disbursement Center, 14925 Kingsport the disaster: will be to allow otherwise qualified Road, Fort Worth, TX 76155. Primary Counties: Oklahoma. small businesses to supply the products FOR FURTHER INFORMATION CONTACT: A. Contiguous Counties: Oklahoma: of any manufacturer on a Federal Escobar, Office of Disaster Assistance, Cleveland, Canadian, Kingfisher, contract set aside for small businesses, U.S. Small Business Administration, Lincoln, Logan, Pottawatomie. Service-Disabled Veteran-Owned 409 3rd Street, SW., Suite 6050, The Interest Rates are: (SDVO) small businesses or Participants Washington, DC 20416. in SBA’s 8(a) Business Development SUPPLEMENTARY INFORMATION: The notice Percent (BD) Program. of the President’s major disaster For Physical Damage: DATES: This waiver is effective August 4, declaration for Private Non-Profit 2010. organizations in the State of Oklahoma, Homeowners With Credit Avail- able Elsewhere ...... 5.500 FOR FURTHER INFORMATI0N CONTACT: Ms. dated 06/11/2010, is hereby amended to Homeowners Without Credit Edith Butler, Procurement Analyst, by include the following areas as adversely Available Elsewhere ...... 2.750 telephone at (202) 619–0422; by FAX at affected by the disaster. Businesses With Credit Avail- (202) 481–1788; or by e-mail at able Elsewhere ...... 6.000 Primary Counties: Garvin, Love, [email protected]. Okmulgee. Businesses Without Credit Available Elsewhere ...... 4.000 SUPPLEMENTARY INFORMATION: Section All other information in the original Non-Profit Organizations With 8(a)(17) of the Small Business Act (Act), declaration remains unchanged. Credit Available Elsewhere ... 3.625 15 U.S.C. 637(a)(17), and SBA’s (Catalog of Federal Domestic Assistance Non-Profit Organizations With- implementing regulations require that Numbers 59002 and 59008) out Credit Available Else- where ...... 3.000 recipients of Federal supply contracts James E. Rivera, For Economic Injury: set aside for small businesses, SDVO Associate Administrator for Disaster Businesses & Small Agricultural small businesses, or Participants in the Assistance. Cooperatives Without Credit SBA’s 8(a) BD Program provide the Available Elsewhere ...... 4.000 product of a small business [FR Doc. 2010–17660 Filed 7–19–10; 8:45 am] Non-Profit Organizations With- manufacturer or processor, if the BILLING CODE 8025–01–P out Credit Available Else- recipient is other than the actual where ...... 3.000 manufacturer or processor of the SMALL BUSINESS ADMINISTRATION product. This requirement is commonly The number assigned to this disaster referred to as the Nonmanufacturer [Disaster Declaration #12231 and #12232] for physical damage is 12231 B and for Rule. 13 CFR 121.406(b), 125.15(c). economic injury is 12232 0. Section 8(a)(17)(b)(iv) of the Act Oklahoma Disaster #OK–00041 The State which received an EIDL authorizes SBA to waive the AGENCY: Small Business Administration. Declaration # is: Oklahoma. Nonmanufacturer Rule for any ‘‘class of ACTION: Notice. (Catalog of Federal Domestic Assistance products’’ for which there are no small Numbers 59002 and 59008) business manufacturers or processors SUMMARY: This is a notice of an available to participate in the Federal Administrative declaration of a disaster Dated: July 13, 2010. market. for the State of Oklahoma dated 07/13/ Karen G. Mills, In order to be considered available to 2010. Administrator. participate in the Federal market for a Incident: Tornadoes, Severe Storms, [FR Doc. 2010–17664 Filed 7–19–10; 8:45 am] class of products, a small business Straight Line Winds and Flooding. BILLING CODE 8025–01–P manufacturer must have submitted a

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proposal for a contract solicitation or Regulation S (17 CFR 230.901 through Papers and Applications,’’ prescribes received a contract from the Federal 230.905) includes rules governing offers general instructions for filing an government within the last 24 months. and sales of securities made outside the application seeking exemptive relief 13 CFR 121.1202(c). The SBA defines United States without registration under with the Commission. Rule 0–4 ‘‘class of products’’ based on the Office the Securities Act of 1933 (15 U.S.C. 77a currently requires that every application of Management and Budget’s NAICS. In et seq.). The purpose of Regulation S is for an order for which a form is not addition, SBA uses PSCs to further to provide clarification of the extent to specifically prescribed and which is identify particular products within the which section 5 of the Securities Act executed by a corporation, partnership NAICS code to which a waiver would applies to offers and sales of securities or other company and filed with the apply. The SBA may then identify a outside of the United States. Regulation Commission contain a statement of the specific item within a PSC and NAICS S is assigned one burden hour for applicable provisions of the articles of to which a class waiver would apply. administrative convenience. incorporation, bylaws or similar On June 7, 2010, SBA published in An agency may not conduct or documents, relating to the right of the the Federal Register a notice of intent sponsor, and a person is not required to person signing and filing such to waive the Nonmanufacturer Rule for respond to, a collection of information application to take such action on behalf Configured Tape Library Storage unless it displays a currently valid of the applicant, and a statement that all Equipment, PSC 7025 (ADP Input/ control number. such requirements have been complied Output and Storage Devices), PSC 7035 Written comments regarding the with and that the person signing and (ADP Support Equipment), and PSC above information should be directed to filing the application is fully authorized 7045 (ADP Supplies), under NAICS the following persons: (i) Desk Officer to do so. If such authorization is code 334112 (Computer Storage Device for the Securities and Exchange dependent on resolutions of Manufacturing). Commission, Office of Information and stockholders, directors, or other bodies, SBA explained in the notice that it Regulatory Affairs, Office of such resolutions must be attached as an was soliciting comments and sources of Management and Budget, Room 10102, exhibit to or quoted in the application. small business manufacturers of these New Executive Office Building, Any amendment to the application must classes of products. No comments were Washington, DC 20503 or send an e- contain a similar statement as to the received in response to this notice. SBA mail to: [email protected]; applicability of the original statement of has determined that there are no small and (ii) Charles Boucher, Director/CIO, authorization. When any application or business manufacturers of these classes Securities and Exchange Commission, amendment is signed by an agent or of products, and is therefore granting C/O Shirley Martinson, 6432 General attorney, rule 0–4 requires that the the waiver of the Nonmanufacturer Rule Green Way, Alexandria, VA 22312; or power of attorney evidencing his for Configured Tape Library Storage send an e-mail to: authority to sign shall state the basis for Equipment, PSC 7025 (ADP Input/ [email protected]. Comments must the agent’s authority and shall be filed Output and Storage Devices), PSC 7035 be submitted to OMB within 30 days of with the Commission. Every application (ADP Support Equipment), and PSC this notice. subject to rule 0–4 must be verified by 7045 (ADP Supplies), under NAICS the person executing the application by code 334112 (Computer Storage Device Dated: July 14, 2010. providing a notarized signature in Manufacturing). Florence E. Harmon, substantially the form specified in the Authority: 15 U.S.C. 637(a)(17). Deputy Secretary. rule. Each application subject to rule 0– [FR Doc. 2010–17644 Filed 7–19–10; 8:45 am] 4 must state the reasons why the Karen Hontz, BILLING CODE 8010–01–P applicant is deemed to be entitled to the Director, Office of Government Contracting. action requested with a reference to the [FR Doc. 2010–17705 Filed 7–19–10; 8:45 am] provisions of the Act and rules BILLING CODE 8025–01–P SECURITIES AND EXCHANGE thereunder, the name and address of COMMISSION each applicant, and the name and address of any person to whom any SECURITIES AND EXCHANGE Submission for OMB Review; questions regarding the application COMMISSION Comment Request should be directed. Rule 0–4 requires Upon Written Request, Copies Available that a proposed notice of the proceeding Submission for OMB Review; From: Securities and Exchange initiated by the filing of the application Comment Request Commission, Office of Investor accompany each application as an Upon Written Request, Copies Available Education and Advocacy, exhibit and, if necessary, be modified to From: Securities and Exchange Washington, DC 20549–0213. reflect any amendment to the Commission, Office of Investor application. Existing Collection; New OMB Control No.: The requirements of rule 0–4 are Education and Advocacy, Rule 0–4, SEC File No. 270–569, OMB designed to provide Commission staff Washington, DC 20549–0213. Control No. 3235–0633. with the necessary information to assess Extension: Notice is hereby given that pursuant whether granting the orders of Regulation S, OMB Control No. 3235–0357, to the Paperwork Reduction Act of 1995 exemption are necessary and SEC File No. 270–315. (44 U.S.C. 3501 et seq.), the Securities appropriate in the public interest and Notice is hereby given that, pursuant and Exchange Commission (the consistent with the protection of to the Paperwork Reduction Act of 1995 ‘‘Commission’’) has submitted to the investors and the intended purposes of (44 U.S.C. 3501 et seq.), the Securities Office of Management and Budget a the Act. and Exchange Commission request for approval of the collection of Applicants for orders under the (‘‘Commission’’) has submitted to the information discussed below. Advisers Act can include registered Office of Management and Budget this Rule 0–4 (17 CFR 275.0–4) under the investment advisers, affiliated persons request for extension of the previously Investment Advisers Act of 1940 (‘‘Act’’ of registered investment advisers, and approved collection of information or ‘‘Advisers Act’’) (15 U.S.C. 80b–1 et entities seeking to avoid investment discussed below. seq.) entitled ‘‘General Requirements of adviser status, among others.

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Commission staff estimates that it SECURITIES AND EXCHANGE the use of Form PILOT, it is estimated receives approximately 9 applications COMMISSION that approximately three respondents per year submitted under rule 0–4 of the will file a total of 3 initial reports (for Act. Although each application Submission for OMB Review; a 72 hour estimated annual burden), 12 typically is submitted on behalf of Comment Request quarterly reports (for a 36 hour multiple applicants, the applicants in Upon Written Request, Copies Available estimated annual burden), and 6 the vast majority of cases are related From: Securities and Exchange amendments (for an 18 hour estimated entities and are treated as a single Commission, Office of Investor annual burden) on Form PILOT per respondent for purposes of this analysis. Education and Advocacy, year, with an estimated total annual Most of the work of preparing an Washington, DC 20549–0213. response burden of 126 hours. At an application is performed by outside Extension: average hourly cost of $307.74, the counsel and, therefore, imposes no aggregate related cost of compliance hourly burden on respondents. The cost Rule 19b–5 and Form PILOT, SEC File No. 270–448, OMB Control No. 3235–0507. with Rule 19b–5 for all respondents is outside counsel charges applicants Notice is hereby given that, pursuant $38,775 per year (126 burden hours depends on the complexity of the issues multiplied by $307.74/hour = $38,775). covered by the application and the time to the Paperwork Reduction Act of 1995 required. Based on conversations with (44 U.S.C. 3501 et seq.), the Securities Although Rule 19b–5 does not in applicants and attorneys, the cost ranges and Exchange Commission itself impose recordkeeping burdens on from approximately $7,000 for (‘‘Commission’’) has submitted to the SROs, it relies on existing requirements preparing a well-precedented, routine Office of Management and Budget a imposed by Rule 17a–1 under the Act application to approximately $80,000 to request for approval of extension of the (17 CFR 240.17a–1) to require SROs to prepare a complex or novel application. previously approved collection of retain all the rules and procedures We estimate that the Commission information provided for in Rule 19b–5 relating to each pilot trading system receives 2 of the most time-consuming (17 CFR 240.19b–5) and Form PILOT operating pursuant to Rule 19b–5, and applications annually, 4 applications of (17 CFR 249.821) under the Securities to make such records available for medium difficulty, and 3 of the least Exchange Act of 1934, as amended Commission inspection for a period of difficult applications subject to rule 0– (‘‘Act’’) (15 U.S.C. 78a et seq.). not less than five years, the first two 4. This distribution gives a total Rule 19b–5 provides a temporary years in an easily accessible place. exemption from the rule-filing estimated annual cost burden to The filing of a Form PILOT is applicants of filing all applications of requirements of Section 19(b) of the Act × × (15 U.S.C. 78s(b)) to self-regulatory mandatory for any SRO seeking a $355,000 [(2 $80,000) + (4 $43,500) temporary exemption under Rule 19b–5 + (3 × $7,000)]. The estimates of annual organizations (‘‘SROs’’) wishing to from the rule filing requirements of burden hours and costs are made solely establish and operate pilot trading Section 19(b) of the Act in connection for the purposes of the Paperwork systems. Rule 19b–5 permits an SRO to with the operation of a pilot trading Reduction Act, and are not derived from develop a pilot trading system and to system. It is also mandatory that an SRO a comprehensive or even representative begin operation of such system shortly operating a pilot trading system file survey or study of the costs of after submitting an initial report on with the Commission notices of material Commission rules and forms. Form PILOT to the Commission. During The requirements of this collection of operation of any such pilot trading systems changes and quarterly information are required to obtain or system, the SRO must submit quarterly transaction reports on Form PILOT. retain benefits. Responses will not be reports of the system’s operation to the Information provided on Form PILOT is kept confidential. An agency may not Commission, as well as timely deemed confidential and shall be conduct or sponsor, and a person is not amendments describing any material available only for examination by the required to respond to a collection of changes to the system. After two years Commission, other agencies of the information unless it displays a of operating such pilot trading system federal government and state securities currently valid control number. under the exemption afforded by Rule authorities. Please direct general comments 19b–5, the SRO must submit a rule An agency may not conduct or regarding the above information to the filing pursuant to Section 19(b)(2) of the sponsor, and a person is not required to following persons: (i) Desk Officer for Act (15 U.S.C. 78s(b)(2)) in order to respond to, a collection of information the Securities and Exchange obtain permanent approval of the pilot unless it displays a currently valid Commission, Office of Management and trading system from the Commission. control number. Budget, Room 10102, New Executive The collection of information is Comments should be directed to: (i) Office Building, Washington, DC 20503 designed to allow the Commission to Desk Officer for the Securities and or send an e-mail to Shagufta Ahmed at maintain an accurate record of all new Exchange Commission, Office of [email protected]; and (ii) pilot trading systems operated by SROs Information and Regulatory Affairs, Charles Boucher, Director/CIO, and to determine whether an SRO has Office of Management and Budget, Securities and Exchange Commission, properly availed itself of the exemption Room 10102, New Executive Office C/O Shirley Martinson, 6432 General afforded by Rule 19b–5, is operating a Building, Washington, DC 20503, or by Green Way, Alexandria, VA 22312; or pilot trading system in compliance with sending an e-mail to: send an e-mail to: the Act, and is carrying out its statutory [email protected]; and (ii) [email protected]. Comments must oversight obligations under the Act. Charles Boucher, Director/Chief be submitted to OMB within 30 days of The respondents to the collection of this notice. information are national securities Information Officer, Securities and exchanges and national securities Exchange Commission, c/o Shirley Dated: July 14, 2010. associations. Martinson, 6432 General Green Way, Florence E. Harmon, While there are 14 national securities Alexandria, VA 22312 or send an e-mail Deputy Secretary. exchanges and national securities to: [email protected]. Comments [FR Doc. 2010–17640 Filed 7–19–10; 8:45 am] associations that may avail themselves must be submitted within 30 days of BILLING CODE 8010–01–P of the exemption under Rule 19b–5 and this notice.

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Dated: July 14, 2010. annual burden for all respondents Commission, Office of Investor Florence E. Harmon, therefore is 4270 hours. Education and Advocacy, Deputy Secretary. This estimate represents a decrease of Washington, DC 20549–0213. [FR Doc. 2010–17642 Filed 7–19–10; 8:45 am] 2170 hours from the prior estimate of Extension: Rule 15a–6, SEC File No. 270–0329, OMB BILLING CODE 8010–01–P 6440 hours. The decrease results from a change in the methodology used to Control No. 3235–0371. estimate the number of mergers between Notice is hereby given that pursuant SECURITIES AND EXCHANGE affiliated funds or fund portfolios. to the Paperwork Reduction Act of 1995 COMMISSION The average cost burden of preparing (44 U.S.C. 3501 et seq.), the Securities a report by an independent evaluator in and Exchange Commission Submission for OMB Review; a merger with an unregistered entity is (‘‘Commission’’) has submitted to the Comment Request estimated to be $15,000. The average net Office of Management and Budget a cost burden of obtaining approval of a request for extension of the previously Upon Written Request Copies Available merger transaction by a majority of a approved collection of information From: Securities and Exchange fund’s outstanding voting securities is discussed below. Commission, Office of Investor estimated to be $80,000. The Rule 15a–6 (17 CFR 240.15a–6) under Education and Advocacy, Commission staff estimates that each the Securities Exchange Act of 1934 (15 Washington, DC 20549–0213. year approximately 0 mergers with U.S.C. 78a et seq.) (‘‘Exchange Act’’) Approval of Existing Information Collection: unregistered entities occur and provides, among other things, an Rule 17a–8, SEC File No. 270–225,OMB, approximately 15 funds hold exemption from broker-dealer Control No. 3235–0235. shareholder votes that would not registration for foreign broker-dealers Notice is hereby given that, pursuant otherwise have held a shareholder vote that effect trades with or for U.S. to the Paperwork Reduction Act of 1995 to comply with state law. The total institutional investors through a U.S. (44 U.S.C. 3501–3520), the Securities annual cost burden of meeting these registered broker-dealer, provided that and Exchange Commission (the requirements is estimated to be the U.S. broker-dealer obtains certain ‘‘Commission’’) has submitted to the $1,200,000. information about, and consents to Office of Management and Budget The estimates of average burden hours service of process from, the personnel of (‘‘OMB’’) a request for extension of the and average cost burdens are made the foreign broker-dealer involved in previously approved collection of solely for the purposes of the Paperwork such transactions, and maintains certain information discussed below. Reduction Act, and are not derived from records in connection therewith. Rule 17a–8 (17 CFR 270.17a–8) under a comprehensive or even a These requirements are intended to the Investment Company Act of 1940 representative survey or study. An ensure: (a) That the U.S. broker-dealer (the ‘‘Act’’) (15 U.S.C. 80a) is entitled agency may not conduct or sponsor, and will receive notice of the identity of, ‘‘Mergers of affiliated companies.’’ Rule a person is not required to respond to, and has reviewed the background of, 17a–8 exempts certain mergers and a collection of information unless it foreign personnel who will contact U.S. similar business combinations displays a currently valid OMB control institutional investors, (b) that the (‘‘mergers’’) of affiliated registered number. foreign broker-dealer and its personnel investment companies (‘‘funds’’) from Please direct general comments effectively may be served with process prohibitions under section 17(a) of the regarding the above information to the in the event enforcement action is Act (15 U.S.C. 80a–17(a)) on purchases following persons: (i) Desk Officer for necessary, and (c) that the Commission and sales between a fund and its the Securities and Exchange has ready access to information affiliates. The rule requires fund Commission, Office of Management and concerning these persons and their U.S. directors to consider certain issues and Budget, Room 10102, New Executive securities activities. to record their findings in board Office Building, Washington, DC 20503 It is estimated that approximately minutes. The rule requires the directors or send an e-mail to Shagufta Ahmed at 2,000 respondents will incur an average of any fund merging with an [email protected]; and (ii) burden of three hours per year to unregistered entity to approve Charles Boucher, Director/CIO, comply with this rule, for a total burden procedures for the valuation of assets Securities and Exchange Commission, of 6,000 hours. At an average cost per received from that entity. These C/O Shirley Martinson, 6432 General hour of approximately $105, the procedures must provide for the Green Way, Alexandria, VA 22312; or resultant total cost of compliance for the preparation of a report by an send an e-mail to: respondents is $600,000 per year (2,000 independent evaluator that sets forth the [email protected]. Comments must entities × 3 hours/entity × $105/hour = fair value of each such asset for which be submitted to OMB within 30 days of $630,000). market quotations are not readily this notice. In general, the records to be available. The rule also requires a fund maintained under Rule 15a–6 must be Dated: July 14, 2010. being acquired to obtain approval of the kept for the applicable time periods as merger transaction by a majority of its Florence E. Harmon, set forth in Rule 17a–4 (17 CFR outstanding voting securities, except in Deputy Secretary. 240.17a–4) under the Exchange Act or, certain situations, and requires any [FR Doc. 2010–17641 Filed 7–19–10; 8:45 am] with respect to the consents to service surviving fund to preserve written BILLING CODE 8010–01–P of process, for a period of not less than records describing the merger and its six years after the applicable person terms for six years after the merger (the ceases engaging in U.S. securities first two in an easily accessible place). SECURITIES AND EXCHANGE activities. Reliance on the exemption set The average annual burden of meeting COMMISSION forth in Rule 15a–6 is voluntary, but if the requirements of rule 17a–8 is Submission for OMB Review; a foreign broker-dealer elects to rely on estimated to be 7 hours for each fund. Comment Request such exemption, the collection of The Commission staff estimates that information described therein is each year approximately 610 funds rely Upon Written Request, Copies Available mandatory. The collection does not on the rule. The estimated total average From: Securities and Exchange involve confidential information.

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Please note that an agency may not The information required to be filed Dated: July 14, 2010. conduct or sponsor, and a person is not with the Commission assures the public Florence E. Harmon, required to respond to, a collection of availability of the information and Deputy Secretary. information unless it displays a permits verification of compliance with [FR Doc. 2010–17639 Filed 7–19–10; 8:45 am] currently valid control number. Investment Company Act requirements. BILLING CODE 8010–01–P Comments should be directed to: (i) Registered unit investment trusts are Desk Officer for the Securities and required to provide this information on Exchange Commission, Office of an annual report filed with the SECURITIES AND EXCHANGE Information and Regulatory Affairs, Commission on Form N–SAR pursuant COMMISSION Office of Management and Budget, to rule 30a–1 under the Investment Room 10102, New Executive Office [Investment Company Act Release No. Company Act, and registered Building, Washington, DC 20503 or 29341; File No. 812–13743] send an e-mail to: management investment companies _ must submit the required information Federated Enhanced Treasury Income Shagufta [email protected] and (ii) Fund, et al.; Notice of Application Charles Boucher, Director/Chief on a semi-annual report on Form N– Information Officer, Securities and SAR pursuant to rule 30b1–1 under the July 14, 2010. Exchange Commission, c/o Shirley Investment Company Act. AGENCY: Securities and Exchange Martinson, 6432 General Green Way, The Commission estimates that the Commission (‘‘Commission’’). Alexandria VA 22312 or send an e-mail total number of respondents is 3,480 ACTION: Notice of application under _ to: PRA [email protected]. Comments and the total annual number of section 6(c) of the Investment Company must be submitted to OMB within 30 responses is 6,180 ((2,700 management Act of 1940 (‘‘Act’’) for an exemption days of this notice. investment company respondents × 2 from section 19(b) of the Act and rule Dated: July 14, 2010. responses per year) + (780 unit 19b–1 under the Act. Florence H. Harmon, investment trust respondents × 1 SUMMARY: Summary of Application: Deputy Secretary. response per year)). The Commission estimates that each registrant filing a Applicants request an order (‘‘Order’’) to [FR Doc. 2010–17643 Filed 7–19–10; 8:45 am] permit certain registered closed-end BILLING CODE 8010–01–P report on Form N–SAR would spend, on average, approximately 14.31 hours in management investment companies to preparing and filing reports on Form N– make periodic distributions of long-term SECURITIES AND EXCHANGE SAR and that the total hour burden for capital gains with respect to their COMMISSION all filings on Form N–SAR would be outstanding common stock as frequently as monthly in any taxable year, and as 88,436 hours. [Form N–SAR; SEC File No. 270–292; OMB frequently as distributions are specified Control No. 3235–0330] The collection of information under by or in accordance with the terms of Form N–SAR is mandatory. Responses any outstanding preferred stock that Proposed Collection; Comment to the collection of information will not such investment companies may issue. Request be kept confidential. An agency may not Applicants: Federated Enhanced Upon Written Request, Copies Available conduct or sponsor, and a person is not Treasury Income Fund, Federated From: Securities and Exchange required to respond to a collection of Premier Intermediate Municipal Income Commission, Office of Investor information unless it displays a Fund, Federated Premier Municipal Education and Advocacy, currently valid control number. Income Fund (collectively, the ‘‘Current Washington, DC 20549–0213. Written comments are invited on: (a) Funds’’) and Federated Investment ‘‘ ’’ Extension: Whether the proposed collection of Management Company ( Federated or Form N–SAR, SEC File No. 270–292, OMB information is necessary for the proper the ‘‘Adviser’’). Control No. 3235–0330. performance of the functions of the DATES: Filing Dates: The application Notice is hereby given that, pursuant agency, including whether the was filed on January 15, 2010 and to the Paperwork Reduction Act of 1995 information will have practical utility; amended on May 18, 2010, and July 9, (44 U.S.C. 3501 et seq.), the Securities (b) the accuracy of the agency’s estimate 2010. and Exchange Commission (the of the burden of the collection of HEARING OR NOTIFICATION OF HEARING: An ‘‘Commission’’) is soliciting comments information; (c) ways to enhance the order granting the application will be on the collection of information quality, utility, and clarity of the issued unless the Commission orders a summarized below. The Commission information collected; and (d) ways to hearing. Interested persons may request plans to submit this existing collection minimize the burden of the collection of a hearing by writing to the of information to the Office of information on respondents, including Commission’s Secretary and serving Management and Budget (‘‘OMB’’) for through the use of automated collection applicants with a copy of the request, extension and approval. techniques or other forms of information personally or by mail. Hearing requests Form N–SAR (OMB Control No. technology. Consideration will be given should be received by the Commission 3235–0330, 17 CFR 249.330) is the form to comments and suggestions submitted by 5:30 p.m. on August 9, 2010, and used by all registered investment should be accompanied by proof of in writing within 60 days of this companies with the exception of face service on the applicants in the form of publication. amount certificate companies, to an affidavit or, for lawyers, a certificate comply with the periodic filing and Please direct your written comments of service. Hearing requests should state disclosure requirements imposed by to Charles Boucher, Director/CIO, the nature of the writer’s interest, the Section 30 of the Investment Company Securities and Exchange Commission, reason for the request, and the issues Act of 1940 (15 U.S.C. 80a–1 et seq.) C/O Shirley Martinson, 6432 General contested. Persons who wish to be (‘‘Investment Company Act’’), and of Green Way, Alexandria, VA 22312; or notified of a hearing may request rules 30a–1 and 30b1–1 thereunder (17 send an email to: notification by writing to the CFR 270.30a–1 and 17 CFR 270.30b1–1). [email protected]. Commission’s Secretary.

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ADDRESSES: Secretary, U.S. Securities plan in reliance on the Order, the Board time. It is anticipated that under a Plan, and Exchange Commission, 100 F of Trustees (the ‘‘Board’’) of the Fund, the minimum annual distribution rate Street, NE., Washington, DC 20549– including a majority of the trustees who with respect to such Fund’s common 1090; Applicants, c/o Gregory Dulski, are not ‘‘interested persons,’’ of such shares would be independent of a Federated Investors Tower, 1001 Liberty Fund as defined in section 2(a)(19) of Fund’s performance during any Avenue, Pittsburgh, Pennsylvania the Act (the ‘‘Independent Trustees’’), particular period but would be expected 15222–3779. shall have requested, and the Adviser to correlate with a Fund’s performance FOR FURTHER INFORMATION CONTACT: shall have provided, such information over time. Except for extraordinary Barbara T. Heussler, Senior Counsel, at as is reasonably necessary to make an distributions and potential increases or (202) 551–6990, or Jennifer L. Sawin, informed determination on whether the decreases in the final dividend periods Branch Chief, at (202) 551–6821 Board should adopt a proposed in light of a Fund’s performance for an (Division of Investment Management, distribution policy. In particular, the entire calendar year and to enable a Office of Investment Company Board and the Independent Trustees Fund to comply with the distribution Regulation). shall have reviewed information requirements of Subchapter M of the regarding the purpose and terms of a Internal Revenue Code (‘‘Code’’) for the SUPPLEMENTARY INFORMATION: The proposed distribution policy, the likely fiscal year, it is anticipated that each following is a summary of the effects of such policy on such Fund’s distribution on the common shares application. The complete application long-term total return (in relation to would be at the stated rate then in may be obtained via the Commission’s market price and its net asset value per effect. Web site by searching for the file common share (‘‘NAV’’)) and the 5. Applicants state that prior to the number or an applicant using the relationship between such Fund’s implementation of a Plan for a Fund, the Company name box, at http:// distribution rate on its common shares Board shall have adopted policies and www.sec.gov/search/search.htm or by under the policy and such Fund’s total procedures under rule 38a–1 under the calling (202) 551–8090. return (in relation to NAV); whether the Act that: (i) Are reasonably designed to Applicants’ Representations rate of distribution would exceed such ensure that all notices required to be Fund’s expected total return in relation sent to the Fund’s shareholders 1. Each Current Fund is a registered pursuant to section 19(a) of the Act, rule closed-end management investment to its NAV; and any foreseeable material effects of such policy on such Fund’s 19a–1 thereunder and condition 4 below company organized as a Delaware (each a ‘‘19(a) Notice’’) include the statutory trust.1 The common shares of long-term total return (in relation to market price and NAV). The disclosure required by rule 19a–1 under the Current Funds are listed on the New the Act and by condition 2(a) below, York Stock Exchange. The Premier Independent Trustees shall also have considered what conflicts of interest the and that all other written Intermediate Municipal Income Fund communications by the Fund or its and Premier Municipal Income Fund Adviser and the affiliated persons of the Adviser and each such Fund might have agents regarding distributions under the have also issued preferred shares. Plan include the disclosure required by Applicants believe that investors in the with respect to the adoption or implementation of such policy. condition 3(a) below; and (ii) require the common shares of the Current Funds Fund to keep records that demonstrate may prefer an investment vehicle that Applicants state that, only after considering such information shall the its compliance with all of the conditions provides regular/monthly distributions of the Order and that are necessary for Board, including the Independent and a steady cash flow. such Fund to form the basis for, or Trustees, of a Fund approve a 2. Federated, a registered investment demonstrate the calculation of, the distribution policy with respect to such adviser under the Investment Advisers amounts disclosed in its 19(a) Notices. Act of 1940, as amended (‘‘Advisers Fund’s common shares (the ‘‘Plan’’) and Act’’), acts as the Current Funds’ in connection with such approval shall Applicants’ Legal Analysis investment adviser and administrator. have determined that such Plan is 1. Section 19(b) of the Act generally Federated is a wholly-owned subsidiary consistent with a Fund’s investment makes it unlawful for any registered of Federated Investors, Inc. Each future objectives and in the best interests of a investment company to make long-term Investment Adviser to a Fund will be Fund’s common shareholders. capital gains distributions more than registered under the Advisers Act. 4. Applicants state that the purpose of once every twelve months. Rule 19b–1 3. Applicants state that, prior to a a Plan would be to permit a Fund to under the Act limits the number of Fund’s implementing a distribution distribute over the course of each year, capital gains dividends, as defined in through periodic distributions as nearly section 852(b)(3)C) of the Code 1 Applicants request that any Order issued equal as practicable and any required (‘‘distributions’’), that a fund may make granting the relief requested in the application also special distributions, an amount closely with respect to any one taxable year to apply to any registered closed-end investment company currently advised or to be advised in the approximating the total taxable income one, plus a supplemental ‘‘clean up’’ future by Federated (including any successor in of such Fund during such year and, if distribution made pursuant to section interest) or by an entity controlling, controlled by so determined by its Board, all or a 855 of the Code not exceeding 10% of or under common control (within the meaning of portion of the return of capital paid by the total amount distributed for the year, section 2(a)(9) of the Act) with Federated (such entities, together with Federated, the ‘‘Investment portfolio companies to such Fund plus one additional capital gain Advisers’’) that decides in the future to rely on the during such year. It is anticipated that dividend made in whole or in part to requested relief. Any closed-end investment under the Plan of a Fund, such Fund avoid the excise tax under section 4982 company that relies on the Order in the future will would distribute to its respective of the Code. comply with the terms and conditions of the application (such investment companies together common shareholders a fixed monthly 2. Section 6(c) of the Act provides that with the Current Funds, the ‘‘Funds,’’ and with the percentage of the market price of such the Commission may, by order upon Investment Advisers, the ‘‘Applicants’’). All existing Fund’s common shares at a particular application, conditionally or Funds currently intending to rely on the Order have point in time or a fixed monthly unconditionally exempt any person, been named as Applicants. A successor in interest is limited to entities that result from a percentage of NAV at a particular time security, or transaction, or any class or reorganization into another jurisdiction or a change or a fixed monthly amount, any of classes of persons, securities or in the type of business organization. which may be adjusted from time to transactions, from any provision of the

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Act, if and to the extent that the companies, such as the Funds, which do undistributed realized net long-term exemption is necessary or appropriate not continuously distribute shares. capital gains otherwise would be in the public interest and consistent According to the Applicants, if the available. To distribute all of a fund’s with the protection of investors and the underlying concern extends to long-term capital gains within the limits purposes fairly intended by the policy secondary market purchases of shares of in rule 19b–1, a fund may be required and provisions of the Act. closed-end funds that are subject to a to make total distributions in excess of 3. Applicants state that one of the large upcoming capital gains dividend, the annual amount called for by its concerns leading to the enactment of adoption of a periodic distribution plan periodic distribution plan or to retain section 19(b) and adoption of rule 19b– actually helps minimize the concern by and pay taxes on the excess amount. 1 was that shareholders might be unable avoiding, through periodic Applicants thus assert that the to distinguish between frequent distributions, any buildup of large end- requested Order would minimize these distributions of capital gains and of-the-year distributions. anomalous effects of rule 19b–1 by dividends from investment income. 6. Applicants note that the common enabling the Funds to realize long-term Applicants state, however, that rule stock of closed-end funds generally capital gains as often as investment 19a–1 effectively addresses this concern tends to trade in the marketplace at a considerations dictate without fear of by requiring that distributions (or the discount to their NAVs. Applicants violating rule 19b–1. confirmation of the reinvestment believe that this discount may be 9. Applicants state that Revenue thereof) estimated to be sourced in part reduced if the Funds are permitted to Ruling 89–81 under the Code requires from capital gains or capital be pay relatively frequent dividends on that a fund that has both common shares accompanied by a separate statement their common shares at a consistent and preferred shares outstanding showing the sources of the distribution rate, whether or not those dividends designate the types of income, e.g., (e.g., estimated net income, net short- contain an element of capital gain. investment income and capital gains, in term capital gains, net long-term capital 7. Applicants assert that the the same proportion as the total gains, and/or return of capital). application of rule 19b–1 to a Plan distributions distributed to each class Applicants state that similar actually gives rise to one of the concerns for that tax year. To satisfy the information is included in the Funds’ that rule 19b–1 was intended to avoid: proportionate designation requirements annual reports to shareholders and on Inappropriate influence on portfolio of Revenue Ruling 89–81, whenever a the Internal Revenue Service Form 1099 management decisions. Applicants state fund has realized a long-term capital DIV, which is sent to each common and that, in the absence of an exemption gain with respect to a given tax year, the preferred shareholder who received from rule 19b–1, the adoption of a fund must designate the required distributions during a particular year. periodic distribution plan imposes proportionate share of such capital gain 4. Applicants further state that each of pressure on management: (i) Not to to be included in common and preferred the Funds will make the additional realize any net long-term capital gains share dividends. Applicants state that disclosures required by the conditions until the point in the year that the fund although rule 19b–1 allows a fund some set forth below, and each of them has can pay all of its remaining distributions flexibility with respect to the frequency adopted compliance policies and in accordance with rule 19b–1; and (ii) of capital gains distributions, a fund procedures in accordance with rule not to realize any long-term capital might use all of the exceptions available 38a–1 under the Act to ensure that all gains during any particular year in under rule 19b–1 for a tax year and still required 19(a) Notices and disclosures excess of the amount of the aggregate need to distribute additional capital are sent to shareholders. Applicants pay-out for the year (since as a practical gains allocated to the preferred shares to argue that by providing the information matter excess gains must be distributed comply with Revenue Ruling 89–81. required by section 19(a) and rule 19a– and accordingly would not be available 10. Applicants assert the potential 1, and by complying with the to satisfy pay-out requirements in abuses addressed by section 19(b) and procedures adopted under the Plan and following years), notwithstanding that rule 19b–1 do not arise with respect to the conditions listed below, each Fund’s purely investment considerations might preferred shares issued by a closed-end shareholders would be provided favor realization of long-term gains at fund. Applicants assert that such sufficient information to understand different times or in different amounts. distributions are either fixed, that their periodic distributions are not Applicants assert that by limiting the determined in periodic auctions, or tied to a Fund’s net investment income number of capital gain distributions that determined by reference to short-term and realized capital gains to date, and a fund may make with respect to any interest rates rather than by reference to may not represent yield or investment one year, rule 19b–1 may prevent the performance of the issuer, and Revenue return. Accordingly, Applicants assert normal and efficient operation of a Ruling 89–81 determines the proportion that continuing to subject the Funds to periodic distribution plan whenever of such distributions that are comprised section 19(b) and rule 19b–1 would that fund’s realized net long-term of long-term capital gains. 11. Applicants also submit that the afford shareholders no extra protection. capital gains in any year exceed the total 5. Applicants assert that section 19(b) ‘‘selling the dividend’’ concern is not of the periodic distributions that may and rule 19b–1 also were intended to applicable to preferred shares, which include such capital gains under the prevent certain improper sales practices, entitles a holder to no more than a rule. including, in particular, the practice of 8. In addition, Applicants assert that periodic dividend at a fixed rate or the urging an investor to purchase shares of rule 19b–1 may cause fixed regular rate determined by the market, and like a fund on the basis of an upcoming periodic distributions to be funded with a debt security, is priced based upon its capital gains dividend (‘‘selling the liquidation value, dividend rate, credit returns of capital 2 (to the extent net dividend’’), where the dividend would quality, and frequency of payment. investment income and realized short result in an immediate corresponding Applicants assert that investors buy term capital gains are insufficient to reduction in NAV and would be in preferred shares for the purpose of fund the distribution), even though effect a taxable return of the investor’s receiving payments at the frequency capital. Applicants assert that the 2 Returns of capital as used in the application bargained for and do not expect the ‘‘selling the dividend’’ concern should means return of capital for financial accounting liquidation value of their shares to not apply to closed-end investment purposes and not for tax accounting purposes. change.

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12. Applicants request an order operations is less than five years, the (b) On the inside front cover of each pursuant to section 6(c) of the Act time period commencing immediately report to shareholders under rule 30e– granting an exemption from the following the Fund’s first public 1 under the Act, the Fund will: provisions of section 19(b) of the Act offering) ending on the last day of the (i) Describe the terms of the Plan and rule 19b–1 thereunder to permit month prior to the most recent (including the fixed amount or fixed each Fund to make periodic capital gain distribution record date compared to the percentage of the distributions and the dividends (as defined in section current fiscal period’s annualized frequency of the distributions); 852(b)(3)(C) of the Code) as often as distribution rate expressed as a (ii) Include the disclosure required by monthly in any one taxable year in percentage of NAV as of the last day of condition 2(a)(ii)(1) above; respect of its common shares and as the month prior to the most recent (iii) State, if applicable, that the Plan often as specified by or determined in distribution record date; and provides that the Board may amend or accordance with the terms thereof in (4) The cumulative total return in terminate the Plan at any time without respect of the Fund’s preferred shares. relation to the change in NAV from the prior notice to Fund shareholders; and last completed fiscal year to the last day (iv) Describe any reasonably Applicants’ Conditions of the month prior to the most recent foreseeable circumstances that might Applicants agree that, with respect to distribution record date compared to the cause the Fund to terminate the Plan each Fund seeking to rely on the Order, fiscal year-to-date cumulative and any reasonably foreseeable the Order will be subject to the distribution rate expressed as a consequences of such termination; and following conditions. percentage of NAV as of the last day of (c) Each report provided to the month prior to the most recent shareholders under rule 30e–1 under 1. Compliance Review and Reporting distribution record date. Such the Act and each prospectus filed with The Fund’s chief compliance officer disclosure shall be made in a type size the Commission on Form N–2 under the will: (a) Report to the Fund’s Board, no at least as large and as prominent as the Act, will provide the Fund’s total return less frequently than once every three estimate of the sources of the current in relation to changes in NAV in the months or at the next regularly distribution; and financial highlights table and in any scheduled quarterly Board meeting, (ii) Will include the following discussion about the Fund’s total return. whether: (i) The Fund and its disclosure: 3. Disclosure to Shareholders, Investment Adviser have complied with (1) ‘‘You should not draw any Prospective Shareholders and Third the conditions of the order; and (ii) a conclusions about the Fund’s Parties material compliance matter (as defined investment performance from the in rule 38a–1(e)(2) under the Act) has amount of this distribution or from the (a) The Fund will include the occurred with respect to such terms of the Fund’s Plan’’; information contained in the relevant conditions; and (b) review the adequacy (2) ‘‘The Fund estimates that it has 19(a) Notice, including the disclosure of the policies and procedures adopted distributed more than its income and required by condition 2(a)(ii) above, in by the Board no less frequently than net realized capital gains; therefore, a any written communication (other than annually. portion of your distribution may be a a communication on Form 1099) about return of capital. A return of capital may the Plan or distributions under the Plan 2. Disclosures to Fund Shareholders occur, for example, when some or all of by the Fund, or agents that the Fund has (a) Each 19(a) Notice disseminated to the money that you invested in the authorized to make such the holders of the Fund’s common Fund is paid back to you. A return of communication on the Fund’s behalf, to shares, in addition to the information capital distribution does not necessarily any Fund common shareholder, required by section 19(a) and rule 19a– reflect the Fund’s investment prospective common shareholder or 1: performance and should not be third-party information provider; (i) Will provide, in a tabular or confused with ‘yield’ or ‘income’ ’’;3 and (b) The Fund will issue, graphical format: (3) ‘‘The amounts and sources of contemporaneously with the issuance of (1) The amount of the distribution, on distributions reported in this 19(a) any 19(a) Notice, a press release a per common share basis, together with Notice are only estimates and are not containing the information in the 19(a) the amounts of such distribution being provided for tax reporting Notice and will file with the amount, on a per common share basis purposes. The actual amounts and Commission the information contained and as a percentage of such distribution sources of the amounts for tax reporting in such 19(a) Notice, including the amount, from estimated: (A) Net purposes will depend upon the Fund’s disclosure required by condition 2(a)(ii) investment income; (B) net realized investment experience during the above, as an exhibit to its next filed short-term capital gains; (C) net realized remainder of its fiscal year and may be Form N–CSR; and long-term capital gains; and (D) return subject to changes based on tax (c) The Fund will post prominently a of capital or other capital source; regulations. The Fund will send you a statement on its (or the Investment (2) The fiscal year-to-date cumulative Form 1099 DIV for the calendar year Adviser’s) Web site containing the amount of distributions, on a per that will tell you how to report these information in each 19(a) Notice, common share basis, together with the distributions for federal income tax including the disclosure required by amounts of such cumulative amount, on purposes.’’ condition 2(a)(ii) above, and will a per common share basis and as a Such disclosure shall be made in a maintain such information on such Web percentage of such cumulative amount type size at least as large as and as site for at least 24 months. of distributions, from estimated: (A) Net prominent as any other information in investment income; (B) net realized the 19(a) Notice and placed on the same 4. Delivery of 19(a) Notices to Beneficial short-term capital gains; (C) net realized page in close proximity to the amount Owners long-term capital gains; and (D) return and the sources of the distribution. If a broker, dealer, bank or other of capital or other capital source; person (‘‘financial intermediary’’) holds (3) The average annual total return in 3 The disclosure in this condition 2(a)(ii)(2) will common shares issued by the Fund in be included only if the current distribution or the relation to the change in NAV for the 5- fiscal year-to-date cumulative distributions are nominee name, or otherwise, on behalf year period (or, if the Fund’s history of estimated to include a return of capital. of a beneficial owner, the Fund: (a) Will

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request that the financial intermediary, (B) The reasonably foreseeable shares as frequently as twelve times or its agent, forward the 19(a) Notice to material effects of the Plan on the each year, and as frequently as all beneficial owners of the Fund’s Fund’s long-term total return in relation distributions are specified by or shares held through such financial to the market price and NAV of the determined in accordance with the intermediary; (b) will provide, in a Fund’s common shares; and terms of any outstanding preferred timely manner, to the financial (C) The Fund’s current distribution shares as such Fund may issue. intermediary, or its agent, enough rate, as described in condition 5(b) copies of the 19(a) Notice assembled in above, compared with the Fund’s 7. Amendments to Rule 19b–1 the form and at the place that the average annual taxable income or total The requested order will expire on the financial intermediary, or its agent, return over the 2-year period, as effective date of any amendment to rule reasonably requests to facilitate the described in condition 5(b), or such 19b–1 that provides relief permitting financial intermediary’s sending of the longer period as the Board deems certain closed-end investment 19(a) Notice to each beneficial owner of appropriate; and companies to make periodic the Fund’s shares; and (c) upon the (3) Based upon that determination, distributions of long-term capital gains request of any financial intermediary, or will approve or disapprove the with respect to their outstanding its agent, that receives copies of the continuation, or continuation after common shares as frequently as twelve 19(a) Notice, will pay the financial amendment, of the Plan; and times each year. intermediary, or its agent, the (ii) The Board will record the For the Commission, by the Division of reasonable expenses of sending the 19(a) information considered by it, including Investment Management, under delegated Notice to such beneficial owners. its consideration of the factors listed in authority. condition 5(b)(i)(2) above, and the basis Florence E. Harmon, 5. Additional Board Determinations for for its approval or disapproval of the Funds Whose Shares Trade at a Deputy Secretary. continuation, or continuation after [FR Doc. 2010–17637 Filed 7–19–10; 8:45 am] Premium amendment, of the Plan in its meeting BILLING CODE 8010–01–P If: minutes, which must be made and (a) The Fund’s common shares have preserved for a period of not less than traded on the stock exchange that they six years from the date of such meeting, DEPARTMENT OF TRANSPORTATION primarily trade on at the time in the first two years in an easily accessible question at an average premium to NAV place. Office of the Secretary of equal to or greater than 10%, as Transportation determined on the basis of the average 6. Public Offerings of the discount or premium to NAV of The Fund will not make a public Notice of Funding Availability for the the Fund’s common shares as of the offering of the Fund’s common shares Small Business Transportation close of each trading day over a 12-week other than: Resource Center Program rolling period (each such 12-week (a) A rights offering below NAV to rolling period ending on the last trading holders of the Fund’s common shares; AGENCY: Office of the Secretary of day of each week); and (b) An offering in connection with a Transportation (OST), Office of Small (b) The Fund’s annualized dividend reinvestment plan, merger, and Disadvantaged Business Utilization distribution rate for such 12-week consolidation, acquisition, spin-off or (OSDBU), Department of Transportation rolling period, expressed as a percentage reorganization of the Fund; or (DOT). of NAV as of the ending date of such 12- (c) An offering other than an offering ACTION: Notice of Funding Availability. week rolling period, is greater than the described in conditions 6(a) and 6(b) Fund’s average annual total return in above, provided that, with respect to SUMMARY: The Department of relation to the change in NAV over the such other offering: Transportation (DOT), Office of the 2-year period ending on the last day of (i) The Fund’s annualized distribution Secretary (OST), Office of Small and such 12-week rolling period; then: rate for the six months ending on the Disadvantaged Business Utilization (i) At the earlier of the next regularly last day of the month ended (OSDBU) announces the opportunity scheduled meeting or within four immediately prior to the most recent for: (1) Business centered community- months of the last day of such 12-week distribution record date,4 expressed as a based organizations; (2) transportation- rolling period, the Board, including a percentage of NAV as of such date, is no related trade associations; (3) colleges majority of the Independent Trustees: more than 1 percentage point greater and universities; (4) community colleges (1) Will request and evaluate, and the than the Fund’s average annual total or; (5) chambers of commerce, registered Fund’s Investment Adviser will furnish, return for the 5-year period ending on with the Internal Revenue Service as such information as may be reasonably such date,5 and 501 C(6) or 501 C(3) tax-exempt necessary to make an informed (ii) The transmittal letter organizations, to compete for determination of whether the Plan accompanying any registration participation in OSDBU’s Small should be continued or continued after statement filed with the Commission in Business Transportation Resource amendment; connection with such offering discloses Center (SBTRC) program in the Gulf, (2) Will determine whether that the Fund has received an order Great Lakes, and Mid Atlantic Regions. continuation, or continuation after under section 19(b) to permit it to make The Southwest, South Atlantic, amendment, of the Plan is consistent periodic distributions of long-term Northwest, Northeast, Central, with the Fund’s investment objective(s) capital gains with respect to its common Southeast, West Central, and Mid South and policies and in the best interests of Atlantic Regions have been previously the Fund and its shareholders, after 4 If the Fund has been in operation fewer than six competed in Fiscal Year 2010. considering the information in months, the measured period will begin OSDBU will enter into Cooperative condition 5(b)(i)(1) above, including, immediately following the Fund’s first public Agreements with these organizations to offering. without limitation: 5 If the Fund has been in operation fewer than five outreach to the small business (A) Whether the Plan is years, the measured period will begin immediately community in their designated region accomplishing its purpose(s); following the Fund’s first public offering. and provide financial and technical

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assistance, business training programs, Telephone: 1–800–532–1169. E-mail: 1.2 Program Description and Goals such as, business assessment, [email protected]. management training, counseling, The national SBTRC program utilizes technical assistance, marketing and SUPPLEMENTARY INFORMATION: Cooperative Agreements with chambers outreach, and the dissemination of Table of Contents of commerce, trade associations, information, to encourage and assist educational institutions and business- small businesses to become better 1. Introduction centered community based 1.1 Background prepared to compete for, obtain, and 1.2 Program Description and Goals organizations to establish SBTRCs to manage DOT funded transportation- 1.3 Description of Competition provide business training, technical related contracts and subcontracts at the 1.4 Duration of Agreements assistance and information to DOT federal, state and local levels. 1.5 Authority grantees and recipients, prime Throughout this notice, the term ‘‘small 1.6 Eligibility Requirements contractors and subcontractors. In order business’’ will refer to: 8(a), 2. Program Requirements to be effective and serve their target disadvantaged business enterprises 2.1 Recipient Responsibilities audience, the SBTRCs must be active in 2.2 Office of Small and Disadvantaged (DBE), women owned small business the local transportation community in (WOB), HubZone, service disabled Business Utilization Responsibilities 3. Submission of Proposals order to identify and communicate veteran owned business (SDVOB), and 3.1 Format for Proposals opportunities and provide the required veteran owned small business (VOSB). 3.2 Address, Number of Copies, Deadline technical assistance. SBTRCs must Throughout this notice, ‘‘transportation- for Submission already have, or demonstrate the ability related’’ is defined as the maintenance, 4. Selection Criteria to establish working relationships with 4.1 General Criteria rehabilitation, restructuring, the state and local transportation improvement, or revitalization of any of 4.2 Scoring of Applications agencies and technical assistance the nation’s modes of transportation. 4.3 Conflicts of Interest Funding Opportunity Number: Format for Proposals—Appendix A agencies (i.e., The U.S. Department of Commerce’s Minority Business USDOT–OST–OSDBU–SBTRC2010–3. Full Text of Announcement Catalog of Federal Domestic Development Centers (MBDCs), Small Assistance (CFDA) Number: 20.910 1. Introduction Business Development Centers (SBDCs), Procurement Technical Assistance Assistance to small and disadvantaged 1.1 Background businesses. Centers (PTACs), SCORE and State DOT Type of Award: Cooperative The United States Department of highway supportive services contractors Agreement Grant. Transportation (DOT) established the in their region. Utilizing these Award Ceiling: $186,000. Office of Small and Disadvantaged relationships and their own expertise, Award Floor: $143,000. Business Utilization (OSDBU) in the SBTRCs are involved in activities Program Authority: DOT is authorized accordance with Public Law 95–507, an such as information dissemination, under 49 U.S.C. 332(b)(4), (5) & (7) to amendment to the Small Business Act small business counseling, and design and carry out programs to assist and the Small Business Investment Act technical assistance with small small disadvantaged businesses in of 1958. businesses currently doing business getting transportation-related contracts The mission of OSDBU at DOT is to with public and private entities in the and subcontracts; develop support ensure that the small and disadvantaged transportation industry. mechanisms, including management business policies and goals of the and technical services, that will enable Effective outreach is critical to the Secretary of Transportation are success of the SBTRC program. In order small disadvantaged businesses to take developed and implemented in a fair, for their outreach efforts to be effective, advantage of those business efficient and effective manner to serve SBTRCs must be familiar with DOT’s opportunities; and to make small and disadvantaged businesses Operating Administrations, its funding arrangements to carry out the above throughout the country. The OSDBU purposes. also administers the provisions of Title sources, and how funding is awarded to DATES: Complete Proposals must be 49, Section 332, the Minority Resource DOT grantees, recipients, contractors, electronically submitted to OSDBU via Center (MRC) which includes the duties subcontractors, and its financial e-mail on or before August 15, 2010, 5 of advocacy, outreach and financial assistance programs. SBTRCs must p.m. Eastern Standard Time. Proposals services on behalf of small and outreach to the regional small business received after the deadline will be disadvantaged business and those transportation community to considered non-responsive and will not certified under CFR 49 parts 23 and or disseminate information and distribute be reviewed. The applicant is advised to 26 as Disadvantaged Business DOT-published marketing materials, turn on request delivery receipt Enterprises (DBE) and the development such as STLP Program Information, notification for e-mail submissions. of programs to encourage, stimulate, Bonding Assistance information, SBTRC DOT plans to give notice of awards for promote and assist small businesses to brochures and literature, Procurement the competed regions on or before become better prepared to compete for, Forecasts; Contracting with DOT August 27, 2010. obtain and manage transportation- booklets, and any other materials or ADDRESSES: Applications must be related contracts, and subcontracts. resources that DOT or OSDBU may electronically submitted to OSDBU via The Regional Partnerships Division of develop for this purpose. To maximize e-mail at [email protected]. OSDBU, through the SBTRC program outreach, the SBTRC may be called FOR FURTHER INFORMATION: For further allows OSDBU to partner with local upon to participate in regional and information concerning this notice, organizations to offer a comprehensive national conferences and seminars. contact Mr. Arthur D. Jackson, U.S. delivery system of business training, Quantities of DOT publications for on- Department of Transportation, Office of technical assistance and dissemination hand inventory and dissemination at Small and Disadvantaged Business of information, targeted towards small conferences and seminars will be Utilization, 1200 New Jersey Avenue, business transportation enterprises in available upon request from the OSDBU SE., W56–462, Washington, DC 20590. their regions. office.

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1.3 Description of Competition U.S. DOT transportation dollars in each (A) Be an established 501 C(3) or 501 The purpose of this RFP is to solicit region. C(6) tax-exempt organization and proposals from transportation-related It is OSDBU’s intent to maximize the provide documentation as verification. trade associations, chambers of benefits received by the small business No application will be accepted without commerce, community based entities, transportation community through the proof of tax-exempt status; (B) Have at least one year of colleges and universities, community SBTRC. Funding may be utilized to documented and continuous experience colleges, and any other qualifying reimburse an on-site Project Director up prior to the date of application in transportation-related non-profit to 100% of salary plus fringe benefits, providing advocacy, outreach, and organizations with the desire and ability an on-site Executive Director up to 50% technical assistance to small businesses to partner with OSDBU to establish and of salary plus fringe benefits, the cost of within the region in which proposed maintain an SBTRC. designated SBTRC space, other direct services will be provided. Prior It is OSDBU’s intent to award costs, and all other general and performance providing services to the Cooperative Agreement to one administrative expenses. Selected transportation community is preferable, organization in each of the designated SBTRC partners will be expected to but not required; and geographical area(s), from herein provide in-kind administrative support. (C) Have an office physically located referred to as ‘‘region(s)’’, competed in Submitted proposals must contain an within the proposed city in the this solicitation. However, if warranted, alternative funding source with which designated headquarters state in the OSDBU reserves the option to make the SBTRC will fund administrative region for which they are submitting the multiple awards to selected partners. support costs. Preference will be given proposal that is readily accessible to the Proposals submitted for a region must to proposals containing in-kind public. contain a plan to service the entire contributions for the Project Director, region, not just the SBTRC state or local the Executive Director, cost of 2. Program Requirements geographical area. The region’s SBTRC designated SBTRC space, other direct 2.1 Recipient Responsibilities headquarters must be established in the costs, and all other general and designated state set forth below. administrative expenses. (A) Assessments, Business Analyses Submitted proposals must also contain 1.4 Duration of Agreements 1. Conduct an assessment of small justification for the establishment of the businesses in the SBTRC region to SBTRC headquarters in a particular city Cooperative agreements will be determine their training and technical within the designated state. awarded for a period of 12 months (one assistance needs, and use information SBTRC Region(s) Competed in This year) with options for two (2) additional that is available at no cost to structure Solicitation: one year periods. OSDBU will notify the programs and services that will enable SBTRC of our intention to exercise an small business enterprises to become Gulf Region: Texas, Headquarters, option year or not to exercise an option better prepared to compete for and Louisiana, Oklahoma, New Mexico. year 30 days in advance of expiration of receive transportation-related contract Great Lakes Region: Illinois, the current year. awards. Headquarters; Michigan, Indiana, 2. Contact other federal, state and Wisconsin. 1.5 Authority local governmental agencies, such as the Mid-Atlantic Region: Pennsylvania, DOT is authorized under 49 U.S.C. U.S. Small Business Administration, Headquarters; Ohio, Maryland, § 332(b)(4), (5) & (7) to design and carry (SBA), state and local highway District of Columbia, Delaware. out programs to assist small departments, state and local airport Program requirements and selection disadvantaged businesses in getting authorities, and transit authorities to criteria, set forth in Sections 2 and 4 transportation-related contracts and identify relevant and current respectively, indicate, the OSDBU subcontracts; develop support information that may support the intends for the SBTRC to be mechanisms, including management assessment of the regional small multidimensional; that is, the selected and technical services, that will enable business transportation community organizations must have the capacity to small disadvantaged businesses to take needs. effectively access and provide advantage of those business (B) General Management and supportive services to the broad range of opportunities; and to make Technical Training and Assistance small businesses within the respective arrangements to carry out the above 1. Utilize OSDBU’s Intake Form to geographical region. To this end, the purposes. document each small business assisted SBTRC must be able to demonstrate that 1.6 Eligibility Requirements by the SBTRC and type of service(s) they currently have established provided. The completed form must be relationships within the geographic To be eligible, an organization must transmitted electronically to the SBTRC region with whom they may coordinate be an established, nonprofit, Program Manager on a monthly basis, and establish effective networks with community-based organization, accompanied by a narrative report on DOT grant recipients and local/regional transportation-related trade association, the activities and performance results technical assistance agencies to chamber of commerce, college or for that period. The data gathered must maximize resources. university, community college, and any be supportive by the narrative and must Cooperative agreement awards will be other qualifying transportation-related relate to the numerical data on the distributed to the region(s) as follows: non-profit organization which has the monthly reports. Gulf Region—Up to $143,000 per year documented experience and capacity 2. Ensure that an array of information Great Lakes Region—Up to $187,000 necessary to successfully operate and is made available for distribution to the per year administer a coordinated delivery small business transportation Mid-Atlantic Region—Up to $183,000 system that provides access for small community that is designed to inform per year businesses to prepare and compete for and educate the community on DOT/ Cooperative agreement awards by transportation-related contracts. OSDBU services and opportunities. region are based upon an analysis of In addition, to be eligible, the 3. Coordinate efforts with OSDBU’s DBEs, Certified Small Businesses, and applicant organization must: National Information Clearinghouse in

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order to maintain an on-hand inventory 2. Utilize the database of regional business community. The seminar/ of DOT/OSDBU informational materials transportation-related small businesses workshop must cover the entire STLP for general dissemination and for to match opportunities identified process, from completion of STLP loan distribution at transportation-related through the planning committee forum, applications and preparation of the loan conferences and other events. FedBiz Opps, a web-based system for package to graduation from the STLP. (C) Business Counseling posting solicitations and other Federal 2. Provide direct support, technical 1. Collaborate with agencies, such as procurement-related documents on the support, and advocacy services to the SBA, U.S. Department of Internet, and other sources to eligible potential STLP applicants to increase Commerce’s Minority Business small businesses and contact the eligible the probability of STLP loan approval Development Centers (MBDCs), Service small businesses about those and generate a minimum of 5 approved Corps of Retired Executives (SCORE), opportunities. STLP applications per year. Procurement Technical Assistance 3. Develop a ‘‘targeted’’ database of 3. Work with local bond producers/ Centers (PTACs), and Small Business firms (100–150) that have the capacity agents in your region to deliver a Development Centers (SBDCs), to offer a and capabilities, and are ready, willing minimum of five (5) seminars/ broad range of counseling services to and able to participate in DOT contracts workshops to DBEs on the DOT ARRA transportation-related small business and subcontracts immediately. This BAP and how the Reimbursable Fee enterprises. control group will receive ample Program works. A minimum of 10 DBE 2. Create a technical assistance plan resources from the SBTRC, i.e., access to firms per workshop should participate. that will provide each counseled working capital, bonding assistance, 4. Provide direct support, technical participant with the knowledge and business counseling, management support, and advocacy services to skills necessary to improve the assistance and direct referrals to DOT potential Disadvantaged Business management of their own small agencies at the state and local levels, Enterprise American Reinvestment and business to expand their transportation- and to prime contractors as effective Recovery Act of 2009 Bonding related contracts and subcontracts subcontractor firms. Assistance Reimbursable Fee Program 4. Identify regional, state and local portfolio. (DBE ARRA BAP) applicants to increase conferences where a significant number 3. Provide a minimum of 20 hours of the probability of reimbursement of small businesses, with transportation individual or group counseling sessions approval and generate a minimum of 5 related capabilities, are expected to be to small businesses per month. approved DBE ARRA BAP applications in attendance. Maintain and submit a (D) Planning Committee until September 8, 2010 or until notice 1. Establish a Regional Planning list of those events to the SBTRC of cessation in the event the program is Committee consisting of at least 7 Program Manager for review and for extended. members that includes representatives posting on the OSDBU Web site on a 5. Provide direct support, technical from the regional community and monthly basis. Clearly identify the support, and advocacy services to federal, state, and local agencies. The events designated for SBTRC potential Provide direct support, highway, airport, and transit authorities participation and include technical support, and advocacy for the SBTRC’s headquarters state must recommendations for OSDBU services to potential Bonding Assistance have representation on the planning participation. Program (BAP) applicants to increase committee. This committee shall be 5. Conduct outreach and disseminate the probability of guaranteed bond established no later than 60 days after information to small businesses at approval and generate a minimum of 5 the execution of the Cooperative regional transportation-related approved BAP applications per year agreement between the OSDBU and the conferences, seminars, and workshops. from inception of the BAP program. selected SBRTC. In the event that the SBTRC is requested 2. Provide a forum for the federal, to participate in an event, the SBTRC (G) Furnish all labor, facilities and state, and local agencies to disseminate will send DOT materials, the OSDBU equipment to perform the services information about upcoming banner and other information that is described in this announcement procurements. deemed necessary for the event. 2.2 Office of Small and Disadvantaged 3. Hold either monthly or quarterly 6. Submit a conference summary Business Utilization (OSDBU) meetings at a time and place agreed report to OSDBU no later than 5 Responsibilities upon by SBTRC and planning business days after participation in the committee members. event or conference. The conference (A) Provide consultation and 4. Use the initial session summary report must summarize technical assistance in planning, (teleconference call) by the SBTRC activities, contacts, outreach results, and implementing and evaluating activities explain the mission of the committee recommendations for continued or under this announcement. and identify roles of the staff and the discontinued participation in future (B) Provide orientation and training to members of the group. similar events sponsored by that the applicant organization. 5. Responsibility for the agenda and organization. (C) Monitor SBTRC activities, direction of the Planning Committee 7. Upon approval by OSDBU, cooperative agreement compliance, and should be handled by the SBTRC coordinate efforts with DOT’s grantees overall SBTRC performance. Executive Director or his/her designee. and recipients at the state and/or local (D) Assist SBTRC to develop or (E) Outreach Services/Conference levels to sponsor or cosponsor an strengthen its relationships with federal, Participation OSDBU transportation related state, and local transportation 1. Utilize the services of the Central conference in the region. authorities, other technical assistance Contractor Registration (CCR) and other (F) Loan and Bond Assistance organizations, and DOT grantees. sources to construct a database of 1. Work with STLP participating (E) Facilitate the exchange and regional small businesses that currently banks and if not available, other lending transfer of successful program activities or may participate in DOT direct and institutions, to deliver a minimum of and information among all SBTRC DOT funded transportation related five (5) seminars/workshops per year on regions. contracts, and make this database the STLP financial assistance program (F) Provide the SBTRC with DOT/ available to OSDBU, upon request. to the transportation-related small OSDBU materials and other relevant

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transportation-related information for (A) Approach and Strategy (25 Points) geographical region. Emphasis will also dissemination. The applicant must describe their be placed on the extent to which the (G) Maintain effective communication strategy to achieve the overall mission applicant identifies a clear outreach with the SBTRC and inform them of of the SBTRC as described in this strategy related to identified needs that transportation news and contracting solicitation and service the small can be successfully carried out within opportunities to share with small business community in their entire the period of this agreement and a plan businesses in their region. geographic regional area. The applicant for involving the Planning Committee in (H) Provide all required forms to be must also describe how the specific the execution of that strategy. used by the SBTRC for reporting activities outlined in Section 2.1 will be (C) Organizational Capability (25 purposes under the program. implemented and executed in the Points) (I) Perform an annual performance organization’s regional area. OSDBU The applicant must demonstrate that evaluation of the SBTRC. Satisfactory will consider the extent to which the they have the organizational capability performance is a condition of continued proposed objectives are specific, to meet the program requirements set participation of the organization as an measurable, time-specific, and forth in Section 2. The applicant SBTRC and execution of all option consistent with OSDBU goals and the organization must have sufficient years. applicant organization’s overall mission. resources and past performance OSDBU will give priority consideration experience to successfully outreach to 3. Submission of Proposals to applicants that demonstrate the small business transportation 3.1 Format for Proposals innovation and creativity in their resources in their geographical area and approach to assist small businesses to carry out the mission of the SBTRC. In Each proposal must be submitted to become successful transportation rating this factor, OSDBU will consider DOT’s OSDBU in the format set forth in contractors and increase their ability to the extent to which the applicant’s the application form attached as access DOT contracting opportunities organization has recent, relevant and Appendix A to this announcement. and financial assistance programs. successful experience in advocating for 3.2 Address; Number of Copies; Applicants must also submit the and addressing the needs of small Deadlines for Submission estimated direct costs, other than labor, businesses. Applicants will be given to execute their proposed strategy. points for demonstrated past Any eligible organization, as defined OSDBU will consider the quality of the transportation-related performance. The in Section 1.6 of this announcement, applicant’s plan for conducting program applicant must also describe technical will submit only one proposal per activities and the likelihood that the and administrative resources it plans to region for consideration by OSDBU. proposed methods will be successful in use in achieving proposed objectives. In Eligible organizations may submit achieving proposed objectives at the their description, the applicant must proposals for multiple regions. proposed cost. describe their facilities, computer and Applications must be double spaced, (B) Linkages (25 Points) technical facilities, ability to tap into and printed in a font size not smaller The applicant must describe their volunteer staff time, and a plan for than 12 points. Applications will not established relationships within their sufficient matching alternative financial exceed 35 single-sided pages, not geographic region and demonstrate their resources to fund the general and including any requested attachments. ability to coordinate and establish administrative costs of the SBTRC. The All pages should be numbered at the effective networks with DOT grant applicant must also describe their top of each page. All documentation, recipients and local/regional technical administrative and financial attachments, or other information assistance agencies to maximize management staff. OSDBU will place an pertinent to the application must be resources. OSDBU will consider emphasis on capabilities of the included in a single submission. innovative aspects of the applicant’s applicant’s financial management staff. Grant application packages must be approach and strategy to build upon (D) Staff Capability and Experience submitted electronically to OSDBU at their existing relationships and (15 Points) [email protected]. The applicant is established networks with existing The applicant organization must advised to turn on request delivery resources in their geographical area. The provide a list of proposed personnel for receipt notification for e-mail applicant should describe their strategy the project, with salaries, fringe benefit submissions. to obtain support and collaboration on burden factors, educational levels and Proposals must be received by DOT/ SBTRC activities from DOT grantees and previous experience clearly delineated. OSDBU no later than August 13, 2010 recipients, transportation prime The applicant’s project team must be 5 p.m., EST. contractors and subcontractors, the well-qualified, knowledgeable, and able 4. Selection Criteria SBA, U.S. Department of Commerce’s to effectively serve the diverse and Minority Business Development Centers broad range of small businesses in their 4.1 General Criteria (MBDCs), Service Corps of Retired geographical region. The Executive OSDBU will award the cooperative Executives (SCORE), Procurement Director and the Project Director shall agreement on a best value basis, using Technical Assistance Centers (PTACs), be deemed key personnel. Detailed the following criteria to rate and rank Small Business Development Centers resumes must be submitted for all applications: (SBDCs), State DOTs, and State highway proposed key personnel and outside Applications will be evaluated using supportive services contractors. In consultants and subcontractors. a point system (maximum number of rating this factor, OSDBU will consider Proposed key personnel must have points = 100); the extent to which the applicant detailed demonstrated experience • Approach and strategy (25 points) demonstrates ability to be providing services similar in scope and • Linkages (25 points) multidimensional. The applicant must nature to the proposed effort. The • Organizational Capability (25 demonstrate that they have the ability to proposed Project Director will serve as points) access a broad range of supportive the responsible individual for the • Staff Capabilities and Experience services to effectively serve a broad program. 100% of the Project Director’s (15 points) range of transportation-related small time must be dedicated to the SBTRC. • Cost Proposal (10 points) businesses within their respective Both the Executive Director and the

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Project Director must be located on-site. following 12 sections and be organized in the • Describe internal technical, financial In this element, OSDBU will consider following order: management, and administrative resources. the extent to which the applicant’s 1. Table of Contents • Propose a plan for sufficient matching proposed Staffing Plan; (a) clearly meets Identify all parts, sections and attachments alternative financial resources to fund the the education and experience of the application. general and administrative costs of the SBTRC. requirements to accomplish the 2. Application Summary objectives of the cooperative agreement; Provide a summary overview of the 7. Staff Capability and Experience (b) delineates staff responsibilities and following: • List proposed key personnel, their accountability for all work required and; • The applicant’s proposed SBTRC region salaries and proposed fringe benefit factors. (c) presents a clear and feasible ability and city and key elements of the plan of • Describe the education, qualifications to execute the applicant’s proposed action/strategy to achieve the SBTRC and relevant experience of key personnel. approach and strategy. objectives. Attach detailed resumes. • The applicant’s relevant organizational (E) Cost Proposal (10 Points) • Proposed staffing plan. Describe how experience and capabilities. Applicants must submit the total personnel are to be organized for the program proposed cost of establishing and 3. Understanding of the Work and how they will be used to accomplish administering the SBTRC in the Provide a narrative which contains specific program objectives. Outline staff applicant’s geographical region for a 12 project information as follows: responsibilities, accountability and a • month period, inclusive of costs funded The applicant will describe its schedule for conducting program tasks. understanding of the OSDBU’s SBTRC through alternative matching resources. 8. Cost Proposal The applicant’s budget must be program mission and the role of the applicant’s proposed SBTRC in advancing • adequate to support the proposed Outline the total proposed cost of the program goals. establishing and administering the SBTRC in strategy and costs must be reasonable in • The applicant will describe specific relation to project objectives. The the applicant’s geographical region for a 12 outreach needs of transportation-related month period, inclusive of costs funded portion of the submitted budget funded small businesses in the applicant’s region through alternative matching resources. by OSDBU can not exceed the ceiling and how the SBTRC will address the outlined in Section 1.3 Description of identified needs. Clearly identify the portion of the costs funded by OSDBU. Competition per fiscal year. Applicants 4. Approach and Strategy • Provide a brief narrative linking the cost are encouraged to provide in-kind costs • Describe the applicant’s plan of action/ proposal to the proposed strategy. and other innovative cost approaches. strategy for conducting the program in terms 9. Proof of Tax Exempt Status 4.2 Scoring of Applications of the tasks to be performed. • Describe the specific services or 10. Assurances Signature Form A review panel will score each activities to be performed and how these application based upon the evaluation services/activities will be implemented. Complete Standard Form 424B ASSURANCES–NON–CONSTRUCTION criteria listed above. Points will be • Describe innovative and creative PROGRAMS identified as Attachment 1. given for each evaluation criteria approaches to assist small businesses to SF424B may be downloaded from http:// category, not to exceed the maximum become successful transportation contractors and increase their ability to access DOT www.grants.gov/techlib/SF424B–V1.1.pdf. number of points allowed for each contracting opportunities and financial 11. Certification Signature Forms category. Proposals which are deemed assistance programs. non-responsive, do not meet the • Estimated direct costs, other than labor, Complete form DOTF2307–1 DRUG–FREE established criteria, or incomplete at the to execute the proposed strategy. WORKPLACE ACT CERTIFICATION FOR A time of submission will be disqualified. 5. Linkages GRANTEE OTHER THAN AN INDIVIDUAL and Form DOTF2308–1 CERTIFICATION OSDBU will perform a responsibility • Describe established relationships within REGARDING LOBBYING FOR CONTRACTS, determination of the prospective the geographic region and demonstrate the GRANTS, LOANS, AND COOPERATIVE winning recipient in each region, which ability to coordinate and establish effective AGREEMENTS identified as Attachment 2. may include a site visit, before awarding networks with DOT grant recipients and the cooperative agreement. local/regional technical assistance agencies. The forms may be downloaded from http:// • Describe the strategy to obtain support www.osdbu.dot.gov/financial/docs/Cert 4.3 Conflicts of Interest and collaboration on SBTRC activities from Drug-Free DOT F 2307-1.pdf and http:// Applicants must submit signed DOT grantees and recipients, transportation www.osdbu.dot.gov/financial/docs/Cert statements by key personnel and all prime contractors and subcontractors, the Lobbying DOT F 2308-1.pdf. organization principals indicating that SBA, U.S. Department of Commerce’s 12. Signed Conflict of Interest Statements they, or members of their immediate Minority Business Development Centers (MBDCs), Service Corps of Retired Executives The statements must say that they, or families, do not have a personal, (SCORE), Procurement Technical Assistance members of their immediate families, do not business or financial interest in any Centers (PTACs), Small Business have a personal, business or financial interest DOT-funded transportation projects, nor Development Centers (SBDCs), State DOTs, in any DOT-funded transportation projects, any relationships with local or state and State highway supportive services nor any relationships with local or state transportation agencies that may have contractors. transportation agencies that may have the • the appearance of a conflict of interest. Describe the outreach strategy related to appearance of a conflict of interest. the identified needs that can be successfully Appendix A carried out within the period of this 13. Standard Form 424 Format for Proposals for the Department of agreement and a plan for involving the Complete Standard Form 424 Application Transportation Office of Small and Planning Committee in the execution of that for Federal Assistance identified as Disadvantaged Business Utilization’s Small strategy. Attachment 3. SF424 can be downloaded Business Transportation Resource Center 6. Organizational Capability from http://www.grants.gov/techlib/SF424- (SBTRC) Program • Describe recent and relevant past V2.0.pdf. Submitted proposals for the DOT, Office of successful performance in addressing the PLEASE BE SURE THAT ALL FORMS Small and Disadvantaged Business needs of small businesses, particularly with HAVE BEEN SIGNED BY AN AUTHORIZED Utilization’s Small Business Transportation respect to transportation-related small OFFICIAL WHO CAN LEGALLY Resource Center Program must contain the businesses. REPRESENT THE ORGANIZATION.

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Issued in Washington, DC on July 13, 2010. 2008–0348 using any of the following or to the Docket Management Facility in Brandon Neal, methods: Room W12–140 of the West Building Director, Office of Small and Disadvantaged • Government-wide rulemaking Web Ground Floor at 1200 New Jersey Business Utilization, Office of the Secretary, site: Go to http://www.regulations.gov Avenue, SE., Washington, DC, between U.S. Department of Transportation. and follow the instructions for sending 9 a.m. and 5 p.m., Monday through [FR Doc. 2010–17633 Filed 7–19–10; 8:45 am] your comments electronically. Friday, except Federal holidays. • Mail: Send comments to the Docket BILLING CODE 4910–9X–P FOR FURTHER INFORMATION CONTACT: Management Facility; U.S. Department Kenna Sinclair, ANM–113, (425) 227– of Transportation, 1200 New Jersey 1556, Federal Aviation Administration, DEPARTMENT OF TRANSPORTATION Avenue, SE., West Building Ground 1601 Lind Avenue, SW, Renton, WA Floor, Room W12–140, Washington, DC 98057–3356, or Katherine Haley, (202) Federal Aviation Administration 20590. 493–5708, Office of Rulemaking (ARM– • Fax: Fax comments to the Docket [Summary Notice No. PE–2010–31] 203), Federal Aviation Administration, Management Facility at 202–493–2251. 800 Independence Avenue, SW., • Hand Delivery: Bring comments to Petition for Exemption; Summary of Washington, DC 20591. Petition Received the Docket Management Facility in Room W12–140 of the West Building This notice is published pursuant to AGENCY: Federal Aviation Ground Floor at 1200 New Jersey 14 CFR 11.85. Administration (FAA), DOT. Avenue, SE., Washington, DC, between Issued in Washington, DC, on July 15, ACTION: Notice of petition for exemption 9 a.m. and 5 p.m., Monday through 2010. received. Friday, except Federal holidays. Pamela Hamilton-Powell, Privacy: We will post all comments Director, Office of Rulemaking. SUMMARY: This notice contains a we receive, without change, to http:// summary of a petition seeking relief www.regulations.gov, including any Petition for Exemption from specified requirements of 14 CFR. personal information you provide. Docket No.: FAA–2008–0348. The purpose of this notice is to improve Using the search function of our docket the public’s awareness of, and Petitioner: The Boeing Company. web site, anyone can find and read the Section of 14 CFR Affected: Sections participation in, this aspect of FAA’s comments received into any of our regulatory activities. Neither publication 25.783(g), 25.8057(a)(1), 25.809(a) and dockets, including the name of the 25.813(a). of this notice nor the inclusion or individual sending the comment (or 14 CFR Part 25. omission of information in the summary signing the comment for an association, is intended to affect the legal status of business, labor union, etc.). You may Description of Relief Sought: Boeing the petition or its final disposition. review DOT’s complete Privacy Act requests an amendment to an existing DATE: Comments on this petition must Statement in the Federal Register exemption to allow the main deck entry identify the petition docket number published on April 11, 2000 (65 FR door of the Model 747–8F airplane to be involved and must be received on or 19477–78). used for access to the upper deck before August 9, 2010. Docket: To read background supernumerary seating area. ADDRESSES: You may send comments documents or comments received, go to [FR Doc. 2010–17638 Filed 7–19–10; 8:45 am] identified by Docket Number FAA– http://www.regulations.gov at any time BILLING CODE 4910–13–P

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Part II

Department of Education 34 CFR Parts 600, 668, and 682 Foreign Institutions—Federal Student Aid Programs; Proposed Rule

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DEPARTMENT OF EDUCATION FOR FURTHER INFORMATION CONTACT: For determination that the benefits of these general information or information proposed regulations justify their costs. 34 CFR Parts 600, 668, and 682 related to nonprofit status for foreign Please let us know of any further RIN 1840–AD03 institutions, public foreign institutions opportunities we should take to reduce and financial responsibility, eligibility potential costs or increase potential [Docket ID ED–2010–OPE–0009] of training programs at foreign benefits while preserving the effective institutions, and foreign graduate and efficient administration of the Foreign Institutions—Federal Student medical schools, Wendy Macias. programs. Aid Programs Telephone: (202) 502–7526 or via the During and after the comment period, AGENCY: Office of Postsecondary Internet at: [email protected]. you may inspect all public comments Education, Department of Education. For information related to audited about these proposed regulations by ACTION: Notice of proposed rulemaking. financial statements and compliance accessing Regulations.gov. You may also audits, Anthony Gargano. Telephone: inspect the comments, in person, in SUMMARY: The Secretary proposes to (202) 502–7519, or via the Internet at: room 8031, 1990 K Street, NW., implement provisions related to the [email protected]. Washington, DC, between the hours of eligibility of foreign institutions for For information related to the 8:30 a.m. and 4:00 p.m., Eastern time, participation in the Federal student aid definition of a foreign institution, Gail Monday through Friday of each week programs that were added to the Higher McLarnon. Telephone: (202) 219–7048, except Federal holidays. Education Act of 1965, as amended or via the Internet at: Assistance to Individuals With (HEA), by the Higher Education [email protected]. Disabilities in Reviewing the Opportunity Act of 2008 (HEOA), as For information related to single legal Rulemaking Record well as other provisions related to the authorization for groups of foreign eligibility of a foreign institution by institutions, foreign veterinary schools, On request, we will supply an amending the regulations for foreign nursing schools and certification appropriate aid, such as a reader or Institutional Eligibility Under the of foreign institutions, Brian Smith. print magnifier, to an individual with a Higher Education Act of 1965, the Telephone: (202) 502–7551, or via the disability who needs assistance to review the comments or other Student Assistance General Provisions, Internet at [email protected]. documents in the public rulemaking and the Federal Family Education Loan If you use a telecommunications record for these proposed regulations. If (FFEL) Program. device for the deaf, call the Federal you want to schedule an appointment DATES: We must receive your comments Relay Service, toll free, at 1–800–877– for this type of aid, please contact one on or before August 19, 2010. 8339. of the persons listed under FOR FURTHER ADDRESSES: Individuals with disabilities can Submit your comments INFORMATION CONTACT. through the Federal eRulemaking Portal obtain this document in an accessible or via postal mail, commercial delivery, format (e.g., braille, large print, Negotiated Rulemaking or hand delivery. We will not accept audiotape, or computer diskette) on Section 492 of the HEA requires the comments by fax or by e-mail. Please request to one of the contact persons Secretary, before publishing certain submit your comments only one time, in listed under FOR FURTHER INFORMATION proposed regulations for programs order to ensure that we do not receive CONTACT. authorized by Title IV of the HEA, to duplicate copies. In addition, please SUPPLEMENTARY INFORMATION: obtain public involvement in the include the Docket ID at the top of your development of the proposed Invitation To Comment comments. regulations. After obtaining advice and • Federal eRulemaking Portal: Go to As outlined in the section of this recommendations from the public, http://www.regulations.gov to submit notice entitled Negotiated Rulemaking, including individuals and your comments electronically. significant public participation, through representatives of groups involved in Information on using Regulations.gov, three public hearings and three the Federal student financial assistance including instructions for finding a negotiated rulemaking sessions, has programs, the Secretary in many cases regulation, submitting a comment, occurred in developing this notice of must subject the proposed regulations to finding a comment, and signing up for proposed rulemaking (NPRM). In a negotiated rulemaking process. e-mail alerts, is available on the site accordance with the requirements of the Proposed regulations that the under ‘‘How To Use Regulations.gov’’ in Administrative Procedure Act, we invite Department publishes on which the the Help section. you to submit comments regarding these • negotiators reached consensus must Postal Mail, Commercial Delivery, proposed regulations on or before conform to final agreements resulting or Hand Delivery. If you mail or deliver August 19, 2010. To ensure that your from that process unless the Secretary your comments about these proposed comments have maximum effect in reopens the process or provides a regulations, address them to Wendy developing the final regulations, we written explanation to the participants Macias, U.S. Department of Education, urge you to identify clearly the specific stating why the Secretary has decided to 1990 K Street, NW., room 8017, section or sections of the proposed depart from the agreements. Further Washington, DC 20006–8502. regulations that each of your comments information on the negotiated Privacy Note: The Department’s policy for addresses and to arrange your comments rulemaking process can be found at: comments received from members of the in the same order as the proposed http://www.ed.gov/policy/highered/leg/ public (including those comments submitted regulations. hea08/index.html. by mail, commercial delivery, or hand We invite you to assist us in On May 26, 2009, the Department delivery) is to make these submissions complying with the specific published a notice in the Federal available for public viewing in their entirety on the Federal eRulemaking Portal at http:// requirements of Executive Order 12866, Register (74 FR 24728) announcing our www.regulations.gov. Therefore, commenters including its overall requirements to intent to establish two negotiated should be careful to include in their assess both the costs and the benefits of rulemaking committees to prepare comments only information that they wish to the proposed regulations and feasible proposed regulations. One committee make publicly available on the Internet alternatives, and to make a reasoned would focus on issues related to

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program integrity (Team I—Program Canadian Association of Student • Clarifying and revising the Integrity Issues). A second committee Financial Aid Administrators. definition of a foreign institution; would focus on issues related to the • Warren Ross and Jerry Thornton • Establishing a definition of eligibility of foreign institutions for (alternate), representing the nonprofit status specific to foreign participation in the Title IV, HEA International University of Nursing and institutions; programs (Team II—Foreign School the University of Medicine and Health • Establishing a financial Issues). On September 9, 2009, the Sciences. responsibility standard for foreign Department published a second notice • Cynthia Holden, American public institutions that is comparable to in the Federal Register (74 FR 46399) University of the Caribbean, and James the financial responsibility standard for listing the topics the committees were domestic public institutions; McIntyre (alternate), McIntyre Law • likely to address and requested Firm, PLLC, representing American Permitting a single legal nominations of individuals for University of the Caribbean. authorization for groups of foreign membership on the committees who • Nancy Perri, Ross University School institutions under the purview of a could represent the interests of key of Medicine, and William Clohan single government entity; • Establishing eligibility of training stakeholder constituencies on each (alternate), DeVry Inc., representing programs at foreign institutions; committee. Ross University School of Medicine. • Establishing institutional eligibility Team II—Foreign School Issues (Team • Steven Rodger, and Patrick criteria specific to foreign graduate II) met to develop proposed regulations Donnellan (alternate) representing R3 medical schools, foreign veterinary during the months of November 2009, Education Inc. schools, and foreign nursing schools; January 2010, and February 2010. • Ronald Blumenthal and Rebecca and The Department developed a list of Campoverde (alternate) representing • Revising the maximum certification proposed regulatory provisions based on Kaplan, Inc. period for some foreign institutions. the provisions contained in the HEOA • Charles Modica, representing St. and from advice and recommendations George’s University. Significant Proposed Regulations submitted by individuals and • Betsy Mayotte, American Student We group major issues according to organizations as testimony to the Assistance, and Jacqueline Fairbairn subject, with appropriate sections of the Department in a series of three public (alternate), Great Lakes Higher proposed regulations referenced in hearings held on— Education Guaranty Corporation, parentheses. We discuss other • June 15–16, 2009, at the representing guaranty agencies. substantive issues under the sections of Community College of Denver in • David Bergeron and Gail McLarnon the proposed regulations to which they Denver, Colorado; (alternate), U.S. Department of pertain. Generally, we do not address • June 18–19, 2009, at the University Education, representing the Federal proposed regulatory provisions that are of Arkansas in Little Rock, Arkansas; Government. technical or otherwise minor in effect. • June 22–23, 2009, at the The Committee’s protocols provided Until amended effective July 1, 2010, Community College of Philadelphia in that the Committee would operate by section 102(a)(1)(C) of the HEA Pennsylvania. consensus, meaning there must be no provided that foreign institutions may In addition, the Department accepted dissent by any member. Under the participate in the Title IV, HEA written comments on possible protocols, if the Committee reaches programs ‘‘only for purposes of part B of regulatory provisions submitted directly consensus on all issues, the Department Title IV.’’ Part B of Title IV contains the to the Department by interested parties will use the consensus-based language statutory requirements for the FFEL and organizations. A summary of all in the proposed regulations and Program. With the enactment of the comments received orally and in writing Committee members and the Health Care and Education is posted as background material in the organizations whom they represent will Reconciliation Act of 2010 (Pub. L. 111– docket for this NPRM. Transcripts of the refrain from commenting negatively on 152) (HCERA) on March 30, 2010, as of regional meetings can be accessed at the package, except as provided for in July 1, 2010, there will be no new http://www.ed.gov/policy/highered/leg/ the agreed upon protocols. originations of FFEL Program loans. All hea08/index.html. During the meetings, Team II new originations with a first Staff within the Department also reviewed and discussed drafts of disbursement on or after July 1, 2010, identified issues for discussion and proposed regulations. At the final will be made via the William D. Ford negotiation. meeting in February 2010, Team II Federal Direct Loan (Direct Loan) At its first meeting, Team II reached reached consensus on the proposed Program, including loans for students agreement on its protocols. The agenda regulations in this document. attending foreign institutions. At the included the issues identified for the More information on the work of time these proposed regulations were Committee’s consideration. Team II can be found at http:// negotiated, it was unclear whether the Team II included the following www2.ed.gov/policy/highered/reg/ proposed legislation that would end the members: hearulemaking/2009/negreg- FFEL Program would be enacted. As a • Harrison Wadsworth, representing summerfall.html. result, these proposed regulations the International Education Council. reference participation in the FFEL • Yvonne Oberhollenzer and John Summary of Proposed Changes Program, except as noted. When the Hayton (alternate), Australian Education These proposed regulations would Department publishes final regulations International North America, implement provisions related to the to implement these proposed representing the Embassy of Australia, eligibility of foreign institutions to regulations, it will correct those the Embassy of New Zealand, the British participate in the Title IV, HEA references in the regulations resulting Council and the German Academic programs including— from these proposed regulations to Exchange Service. • Establishing submission indicate participation in the Direct Loan • Judy Stymest, McGill University, requirements for compliance audits and Program, rather than the FFEL Program. and Alexander Leipziger (alternate), audited financial statements specific to Any substantive or technical changes to Canadian Embassy, representing the foreign institutions; the Title IV, HEA program regulations

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resulting from the HCERA will be would automatically accept that tax its institutions, the Department made addressed through future rulemaking authority’s determination of nonprofit clear during the negotiations that under efforts. For more information about the educational status for any institution the language proposed, the Secretary transition of foreign institutions to the located in that country. If a recognized may recognize more than one tax Direct Loan Program, contact the Office tax authority of the institution’s home authority in a country. Some non- of Federal Student Aid’s Foreign country is not recognized by the Federal negotiators suggested that the Schools Team at Secretary for purposes of making Department allow a determination of [email protected] or (202) 377– determinations of an institution’s nonprofit status to be made by an entity 3168. nonprofit status for Title IV, HEA other than a recognized tax authority of Part 600 Institutional Eligibility Under program purposes, a foreign institution the country. The Department noted that, the Higher Education Act of 1965, as would have to demonstrate to the as the proposed language was written, Amended. satisfaction of the Secretary that it is a information submitted by such entities Nonprofit Status for Foreign nonprofit educational institution. The would be taken into account by the Institutions (§ 600.2) proposed regulations would also make Department; however, this would be clear that a nonprofit foreign institution done as part of an individual Statute: Section 102(a)(2)(A) of the may not be owned by a for profit entity, determination of the eligibility of an HEA directs the Secretary to establish directly or indirectly. A foreign institution. The Department believes criteria by regulation for the institution that did not meet this that the only entities it should recognize determination that foreign institutions definition of a nonprofit foreign across the board for making are comparable to an institution of institution would not be eligible to determinations of nonprofit status are higher education as defined in section participate in the Title IV, HEA those that are responsible for 101 of the HEA—which specifies that an programs unless it was a medical, administering the country’s tax laws. institution of higher education must be veterinary, or nursing school. a public or other nonprofit institution— Definition of a Foreign Institution except that foreign graduate medical Reasons: As foreign institutions must (§§ 600.51, 600.52, 600.54, 682.200 and schools, foreign veterinary schools, and be nonprofit institutions to participate 682.611) foreign nursing schools may be for- in the Title IV, HEA programs, unless Statute: Section 102(a)(1)(C) of the profit. Sections 101(a)(4) and 101(b)(2) they are medical, veterinary, or nursing HEA provides that an ‘‘institution of of the HEA identify nonprofit schools, the Department believes it is higher education,’’ only for the purposes institutions as one type of institution necessary to delineate in regulations the of part B of Title IV, includes an that may be an institution of higher requirements for demonstrating institution outside the United States education and, therefore, may be nonprofit status for foreign institutions. that is comparable to an institution of eligible to apply to participate in the Some non-Federal negotiators originally higher education as that term is defined Title IV, HEA programs. suggested that the Department should in section 101 of the HEA and is an Current Regulations: Section 600.54 always defer to any determination by a institution that has been approved by provides that, to participate in the Title foreign country that an institution is the Secretary. Section 102(a)(2)(A) of the IV, HEA programs, a foreign institution nonprofit. The Department pointed out HEA requires the Secretary to establish must be a public or private nonprofit that a domestic institution must be regulatory criteria for the approval of educational institution. Foreign determined by the U.S. IRS to be a such institutions and for the graduate medical schools, foreign nonprofit organization in order to be determination that they are comparable. veterinary schools, and foreign nursing eligible as a nonprofit institution for Current Regulations: Subpart E of 34 schools are excepted from this participation in the Title IV, HEA CFR part 600 (§§ 600.51 through 600.57) requirement by section 102(a)(2)(A) of programs. The Department also noted contains the eligibility requirements the HEA. Section 600.2 defines a that certain countries may not have that a foreign institution must meet to nonprofit institution as an institution standards for the determination of participate in the FFEL Program. that— nonprofit status that are comparable to Current § 600.51 explains the purpose • Is owned and operated by one or those used in the United States, and and scope of subpart E and provides more nonprofit corporations or may not ensure that the institution’s net that a foreign institution is eligible to associations, no part of the net earnings earnings do not benefit any private participate in the FFEL Program if it is of which benefits any private shareholder or individual. Therefore, to comparable to an eligible institution of shareholder or individual; make the proposed regulations as higher education located in the United • Is legally authorized to operate as a comparable as possible to those States and has been approved by the nonprofit organization by each State in applicable to domestic institutions, the Secretary. Implementing a statutory which it is physically located; and Department proposed, and the provision in section 481(b)(4) of the • Is determined by the U.S. Internal Committee agreed, that a determination HEA, current § 600.51 also provides that Revenue Service (IRS) to be an that an institution is nonprofit by an a program offered by a foreign school organization to which contributions are entity in the institution’s foreign through any use of a tax-deductible in accordance with country would qualify an institution as telecommunications or correspondence section 501(c)(3) of the Internal Revenue nonprofit only if the determination is course or through a direct assessment Code (26 U.S.C. 501(c)(3)). made by a recognized tax authority of program is not an eligible program. Proposed Regulations: Under the country, and the Secretary has Current § 600.52 contains the proposed § 600.2, a new paragraph (2) of recognized that tax authority as one that definitions associated with subpart E the definition of a nonprofit institution can make a determination using criteria and defines foreign institution as an would provide that if a recognized tax that are similar to those used by the IRS. institution that is not located in a State. authority of a foreign institution’s home In response to non-Federal negotiators State is defined in § 600.2 as a State of country is recognized by the Secretary pointing out that some countries may the Union, American Samoa, the for purposes of making determinations have more than one recognized entity Commonwealth of Puerto Rico, the of an institution’s nonprofit status for for the purpose of making District of Columbia, Guam, the Virgin Title IV, HEA purposes, the Secretary determinations of the nonprofit status of Islands, the Commonwealth of the

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Northern Mariana Islands, the Republic extent those provisions are inconsistent would mean an enterprise consisting of of the Marshall Islands, the Federal with the HEA, 34 CFR part 600, or other two or more locations offering all or part States of Micronesia, and the Republic regulatory provisions specific to foreign of an educational program that are of Palau. institutions. Proposed § 600.51(c) would directly or indirectly under common Current § 600.54 contains the criteria also exempt foreign institutions from control. the Secretary uses to determine whether requirements that the Secretary The proposed regulations would a foreign institution is eligible to apply identifies through a notice in the amend the threshold criteria in § 600.54 to participate in the FFEL Program. A Federal Register. for determining whether a foreign public or private nonprofit foreign The proposed regulations would institution is comparable to a domestic institution may apply to participate in amend § 600.52 to include a detailed ‘‘institution of higher education’’ as that the FFEL Program if the institution— definition of foreign institution. Under term is defined in the HEA, and eligible • Admits as regular students only the definition proposed, foreign for Title IV, HEA program participation. those students with a secondary school institution would mean, for the Proposed § 600.54(a) states that to be completion credential or its recognized purposes of students who receive Title eligible, a foreign institution that is not equivalent; IV, HEA program aid, an institution a freestanding foreign graduate medical, • Is legally authorized by an that— veterinary, or nursing school must be a appropriate authority to provide an • Is not located in a State; public or private nonprofit educational eligible program beyond the secondary • Except with respect to clinical institution (i.e., a for-profit foreign school level in the country in which the training offered at foreign graduate institution may participate only if it is institution is located; and medical, veterinary, and nursing a freestanding foreign graduate medical, • Provides eligible programs for schools, has no U.S. locations; veterinary, or nursing school). Proposed which the institution is legally • Has no written arrangements, § 600.54(c)(1) would prohibit an eligible authorized to award the equivalent of an within the meaning of § 668.5, with foreign institution from entering into a associate, baccalaureate, graduate, or institutions or organizations located in written arrangement under which an professional degree awarded in the the U.S. for students at foreign ineligible institution or organization United States; provides an eligible institutions to take a portion of the provides any portion of one or more of program that is at least a two-academic program from institutions located in the the eligible foreign institution’s year program acceptable for full credit U.S.; programs. Written arrangements would toward the equivalent of a baccalaureate • Does not permit students to enroll not include affiliation agreements for degree awarded in the United States; or, in any course offered by the foreign the provision of clinical training for provides an eligible program that is institution in the U.S. except for foreign graduate medical, veterinary, equivalent to at least a one-academic independent research under very and nursing schools under this year training program in the United limited circumstances; proposed change. Proposed States that leads to a certificate, degree, • Is legally authorized by the § 600.54(c)(2) would require that an or other recognized educational education ministry, council, or additional location of a foreign credential and prepares students for equivalent agency of its home country to institution must separately meet the gainful employment in a recognized provide an education program beyond proposed definition of foreign occupation. the secondary level; institution in § 600.52 if it is located Currently, §§ 668.2 and 682.200 do • Awards degrees, certificates, or outside of the country in which the not contain a reference to the definition other recognized educational credentials main campus is located, except for of foreign institution in the list of in accordance with § 600.54(d) that are clinical locations of foreign graduate definitions set forth in 34 CFR part 600. officially recognized by the institution’s medical, veterinary, and nursing Lastly, current § 682.611 provides that home country; and schools, as provided for in a foreign school is required to comply • For any program designed to § 600.55(h)(1), § 600.56(b), with the provisions of part 682 unless prepare the student for employment in § 600.57(a)(2), § 600.55(h)(3), and except the regulations or other official a recognized occupation, provides a for locations at which independent Department of Education publications credential that satisfies the educational research is conducted as part of a or documents state otherwise. requirements in the institution’s home doctoral program as provided for in the Proposed Regulations: The proposed country for entry into that occupation, definition of foreign institution in regulations would remove and reserve including licensure; and satisfies the § 600.52. Under proposed § 600.52(c)(2), § 682.611, remove the definition of educational requirements for entry into an additional location of a foreign foreign school from § 682.200(b)(1), and that occupation in the U.S., including institution would also have to meet add references to §§ 668.2(a)(2) and licensure. separately the definition of foreign 682.200(a)(2) specifying that the The proposed definition of foreign institution, even if that location is definition of foreign institution is institution would also require that if an within the same country as the main contained in regulations for Institutional educational enterprise enrolls students campus, if it is not covered by the legal Eligibility under the HEA, as amended, both within a State and outside a State, authorization of the main campus. 34 CFR part 600. These proposed and the number of students who would Lastly, proposed § 600.54(e) would revisions would consolidate the be eligible to receive Title IV, HEA prohibit any portion of an eligible for- requirements and definitions related to program funds attending locations profit foreign graduate medical or the eligibility of foreign institutions to outside a State is at least twice the veterinary program from being offered at apply for Title IV, HEA program number of students enrolled within a what would be an undergraduate level participation in subpart E of 34 CFR part State, the locations outside a State must in the U.S. and would deny Title IV, 600. The proposed regulations would apply to participate as one or more HEA program eligibility to any joint revise § 600.51(c) to incorporate the foreign institutions and must meet all degree programs offered at for-profit provisions of removed § 682.611, i.e., requirements of the definition of foreign foreign graduate medical, veterinary, or that a foreign institution must comply institution and other requirements of 34 nursing schools. with all requirements for eligible and CFR part 600. Under the proposed Reasons: Proposed §§ 600.52 and participating institutions except to the regulations, educational enterprise 600.54, revising and adding detail to the

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definition of foreign institution, are the Department require foreign students enrolled in foreign locations as necessary to ensure that a foreign countries to recognize the degrees and those enrolled in domestic locations. institution is comparable to institutions licenses offered by a foreign institution. This provision would prevent a in the United States, in accordance with In the second round of negotiations, predominantly foreign educational section 102(a)(1)(C) of the HEA, before the Department responded with draft enterprise from establishing a minor the foreign institution is allowed to language that addressed many of the presence within the United States for apply for Title IV, HEA program non-Federal negotiators’ suggestions the purpose of circumventing the participation. The Department is from the first round of discussion. statutory provision limiting foreign concerned that a foreign institution that However, the Department’s inclusion of institution participation to the Direct is not comparable to a domestic provisions prohibiting foreign Loan program (or, before July 1, 2010, to institution, especially in terms of the institutions from entering into written the FFEL program), so as to provide quality of its educational programs, may arrangements with institutions located other Title IV grant, loan, and work- misuse Federal funds to the detriment of in the United States and preventing study funds to students at what are its students who may have to borrow foreign institution students from really foreign institutions. In addition, heavily in order to attend the foreign engaging in courses, research, work, and in response to requests by non-Federal institution. The proposed regulations other pursuits within the United States negotiators, the Department added also more fully implement the scheme drew objections from the non-Federal clarity to the paragraph by describing an of the HEA, which distinguishes negotiators. The Federal negotiator ‘‘educational enterprise’’ as an entity between foreign and domestic explained that these provisions that consists of two or more locations institutions and includes provisions addressed abuses witnessed by the offering all or part of an educational unique to each. For example, these Department whereby an institution sets program that are directly or indirectly regulations would prevent a domestic up an offshore campus to claim foreign under common ownership. Locations institution from claiming to be a foreign institution status and thus avoids are considered to be ‘‘indirectly’’ under institution by virtue of the fact that it domestic requirements even though the common ownership if, at any level, the has established an offshore location, institution is, for all intents and locations are owned and controlled by thereby avoiding the requirements purposes, a domestic institution. The the same parties, or related parties, applied to domestic institutions such as non-Federal negotiators felt the within the meaning of § 600.31. In draft recognized accreditation, but that sends language prohibiting students from § 600.54(c)(1), the Department clarified its students to the United States for the engaging in pursuits within the U.S. was that written arrangements do not majority of the required coursework. too broad and urged the Department to include affiliation agreements for the make exceptions for research conducted provision of clinical training. During the first round of negotiated in the United States by PhD students. rulemaking, the Federal negotiator The non-Federal negotiators also The non-Federal negotiators were explained the need for a more detailed requested that the Department clarify comfortable with the majority of the definition of foreign institution and what it meant by ‘‘written arrangements’’ Department’s proposed language but sought comments and feedback from the in the provision that would prohibit several non-Federal negotiators non-Federal negotiators. Several foreign institutions from having written continued to raise concerns about the negotiators urged the Department to arrangements with U.S. institutions or proposed language prohibiting U.S. define foreign institution in a way that organizations, noting that many foreign locations of foreign institutions and ensures quality control through high institutions have multiple types of written arrangements with institutions academic standards and avoids abuse of written arrangements with institutions located in the United States. The the Title IV, HEA programs. The non- in the U.S. Federal negotiator stated that foreign Federal negotiators suggested requiring Based on comments received from the institutions are free to establish U.S. that foreign institutions be subject to non-Federal negotiators at the second locations and have written arrangements accreditation by accreditors recognized round of negotiated rulemaking, the with institutions located in the United by the Department as a means of Department returned to the last round States, but that such locations and ensuring comparability with domestic with language that added a cross- institutions would need to be separately institutions. The Federal negotiator reference to § 668.5 in draft paragraph certified and meet the requirements explained that the Department does not (1)(iii) of the definition of foreign applicable to domestic institutions in recognize U.S. accreditors for institution to clarify the meaning of order for U.S. students attending them accreditation of institutions outside the written arrangements. The proposed to receive Title IV, HEA program funds. United States. In light of this fact, the language also added an exception in In this regard, the Department does not non-Federal negotiators suggested a draft paragraph (1)(iv) of the definition want a foreign institution to send its requirement that foreign institutions be of foreign institution for independent U.S. students to a U.S. location of a ‘‘legally authorized’’ by an appropriate research done under certain foreign institution, or to a U.S. authority in the country in which the circumstances during the dissertation institution with which it has an institution is located, such as a Ministry phase of a doctoral program from the agreement for their training, because of Education or other governmental general prohibition on enrolling students enrolled in a foreign institution agency. Other non-Federal negotiators students in courses offered by a foreign are only eligible for Direct Loan program also urged the Department to be flexible institution in the United States. In draft (or, before July 1, 2010, FFEL program) in this area because such authority paragraph (2) of the definition of foreign loans. Instead the Department wants could reside in different branches of institution, the Department sought to U.S. students attending postsecondary government depending on the country. further distinguish between foreign and institutions in the United States to be Recognizing that there might be domestic institutions by prohibiting eligible for the full range of Title IV, pressure on some foreign governments foreign locations of an educational HEA program funds available to to set minimal standards because enterprise from being considered domestic institutions. The Federal educational institutions are an additional locations of a domestic negotiator noted that it would be important part of their economy, several location of the educational enterprise if acceptable for a U.S. student to transfer non-Federal negotiators suggested that the enterprise has at least twice as many officially from a foreign institution to an

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institution in the U.S. that would be school in § 600.52. In addition, the clarify the distinction between separately certified as a domestic proposed regulations would modify the ‘‘freestanding’’ graduate medical, institution. The non-Federal negotiators regulations governing certification veterinary, and nursing schools and asked the Department to clarify that the procedures in § 668.13. graduate medical, veterinary, and proposed definition of foreign The proposed definition of foreign nursing schools that are components of institution would apply only for the graduate medical school in § 600.52 a larger foreign institution. purposes of students who receive Title would be modified by removing the IV, HEA program funds. For example, a reference to the World Directory of The NCFMEA also recommended that foreign institution would not be Medical Schools (see the discussion all foreign graduate medical schools be prohibited from having U.S. locations, under Foreign Graduate Medical certified for a period of no more than but the locations would not be Schools below) and replacing it with three years (Recommendation 14(b)). recognized as part of the institution for language specifying that a foreign The Department initially proposed Title IV purposes, so no student graduate medical school is a foreign reducing the certification period for all attending the location, or enrolled in a institution or component of a foreign foreign institutions from six years to program designed to be offered there in institution that has, as its sole mission, three years to provide the Department whole or in part, would be eligible to providing an educational program that with more oversight over foreign receive Title IV, HEA program funds. leads to a degree of medical doctor, institutions. Non-Federal negotiators Similarly, a foreign institution may also doctor of osteopathy, or its equivalent. noted that the Department’s proposal to maintain agreements with a U.S. The proposed definition would clarify decrease the certification period would institution or organization so that that references to a foreign graduate be administratively burdensome for students of the foreign institution may medical school as ‘‘freestanding’’ pertain institutions. Some non-Federal continue to engage in exchange solely to a school that qualifies by itself negotiators felt that the increased opportunities offered by U.S. as a foreign institution, and not to a administrative burden might lead school that is a component of a larger institutions, but the agreement would foreign institutions that enroll small university that qualifies as a foreign not be recognized for Title IV, HEA numbers of Title IV borrowers to purposes, so no student attending the institution. Similar language is included reconsider participating in the Title IV, U.S. institution, or enrolled in a in the proposed definitions for the terms HEA programs. Non-Federal negotiators program designed to be offered there in foreign nursing school and foreign whole or in part, would be eligible to veterinary school. also noted that for-profit foreign receive Title IV, HEA program funds. The proposed regulations would institutions might have difficulty raising The Department noted that the Title IV, amend § 668.13(b)(1) to specify that the capital based on three-year certifications HEA program regulations are always period of participation for a private, for- rather than six-year certifications. applicable for Title IV, HEA program profit foreign institution expires three Non-Federal negotiators also purposes only, but agreed to add the years after the date the institution is contended that the reduction in the clarification. certified by the Secretary, rather than certification period would not provide the current six years. much benefit to the Department. They Certification of Foreign Institutions Reasons: The National Committee on felt that the relevant information for an (§§ 600.52 and 668.13) Foreign Medical Education and institution would not be likely to Statute: Section 102(a)(5) of the HEA Accreditation (NCFMEA) recommended requires the Secretary to certify an that a foreign graduate medical school change significantly in three years. The institution’s qualifications as an that is a component of a larger foreign non-Federal negotiators also pointed out institution of higher education in institution be certified as a separate that this change would increase the accordance with subpart 3, part H of institution of higher education from the workload for the Department staff who Title IV. Under section 498(g)(1) of the larger institution (Recommendation review and approve institutional HEA, the Secretary is authorized to 14(a)). The Department initially eligibility applications for foreign certify an institution’s eligibility for proposed implementing this institutions. purposes of participating in the Title IV, recommendation and applying it to The Department continues to believe HEA programs for a period of up to six foreign nursing and veterinary schools that reducing the certification period years. as well. Under that proposal, a graduate will give the Department better Current Regulations: Section 600.52 of medical, nursing, or veterinary school oversight over foreign institutions, the Institutional Eligibility regulations that is part of a larger institution would particularly over institutions that enroll defines foreign graduate medical school be given its own OPEID number. Cohort large numbers of Title IV borrowers. default rates for the graduate medical, as a foreign institution that is listed in However, the Department acknowledges nursing, or veterinary school would be the most current edition of the World that decreasing the certification period calculated independently of the cohort Directory of Medical Schools. Foreign from six to three years would be nursing school and foreign veterinary default rate for the larger foreign unnecessary for certain types of school are not currently defined in institution. institutions. Therefore, the Department § 600.52. After discussions with the non- Section 668.13(b)(1) of the General Federal negotiators regarding the revised its proposal by limiting the Provisions regulations specifies that an administrative burdens that separate three-year certification period to private, institution’s period of participation certification of non-freestanding for-profit medical, veterinary, and expires six years after the date of graduate medical, veterinary, and nursing schools. These institutions, certification, except that the Secretary nursing schools would entail, the among all participating foreign may specify a shorter period. Department decided to withdraw this institutions, continue to receive by far Proposed Regulations: The proposed proposal. Instead, the Department will the largest amounts of Title IV, HEA regulations would modify the definition track such graduate medical, veterinary, program funds. Under the revised of foreign graduate medical school and and nursing schools separately from the proposal, public and nonprofit add definitions for the terms foreign larger institution. To facilitate this, the institutions would continue to be nursing school and foreign veterinary Department proposed regulations that recertified every six years.

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Single Legal Authorization for Groups should not have to rely on a national to a U.S. degree, or be at least a two- of Foreign Institutions (§ 600.54) government to develop a nationwide list academic-year program acceptable for Statute: Section 101(a)(2) of the HEA of institutions legally authorized to full credit toward the equivalent of a requires a domestic institution of higher provide postsecondary education in the U.S. baccalaureate degree, or be education to be legally authorized by country. They contended that some equivalent to at least a one-academic- the State in which it is located to national governments might not have year training program that leads to a provide a program of postsecondary the resources to develop and maintain certificate, degree, or other recognized education. Section 102(a)(2)(A) of the such a list. The non-Federal negotiators educational credential and prepares argued that for institutions in some students for gainful employment in a HEA requires the Secretary, through countries, it might be cumbersome and recognized occupation. regulation, to develop eligibility criteria time-consuming to obtain such a list Section 668.3 defines an academic for foreign institutions of higher from the national government. This year as— education that are comparable to the would have the effect of slowing down • For a program offered in credit eligibility criteria for U.S. institutions of the eligibility certification processes for hours, a minimum of 30 weeks of higher education. Section 498(a) and (b) some foreign institutions. These non- instructional time and, for an of the HEA require the Secretary to Federal negotiators recommended that undergraduate program, an amount of determine whether an institution is institutions retain the option of instructional time whereby a full-time legally authorized and to prepare and providing the Department with their student is expected to complete at least prescribe an application form for own individual legal authorizations, 24 semester or trimester credit hours or purposes of determining that the rather than relying on a nationwide list. 36 quarter credit hours; or requirements of eligibility, Other non-Federal negotiators • For a program offered in clock accreditation, financial responsibility, believed that it was too constricting to hours, a minimum of 26 weeks of and administrative capability are met. limit the authority for developing the instructional time and, for an Current Regulations: Section list of institutions to an agency of the undergraduate program, an amount of 600.54(b) of the current regulations national government. They noted that in instructional time whereby a full-time requires a foreign institution to be some countries, such as Canada, legal student is expected to complete at least legally authorized by an appropriate authorization to provide postsecondary 900 clock hours. authority to provide postsecondary education is provided by the provincial Proposed Regulations: Under the education in the country where the governments, not by the national proposed regulations, a foreign institution is located. government. These non-Federal institution would have to demonstrate Proposed Regulations: Proposed negotiators requested that the to the satisfaction of the Secretary (who § 600.54(f) would provide three different Department make provision for legal would make program-by-program methods for a foreign institution to authorizations from government entities determinations of comparability) that prove that it is legally authorized to at a provincial level, not at the national the amount of academic work required provide postsecondary education in the level. by a program it seeks to qualify as country where the institution is located. The Department agreed with these eligible is at least a one-academic-year The documentation from a foreign recommendations. In addition to training program that is equivalent to— country’s education ministry, council, allowing proof of legal authorization to • For a program offered in credit or equivalent agency may either be— be provided on a nationwide basis, the hours, a minimum of 30 weeks of • A single legal authorization that proposed regulations allow for proof of instructional time and, for an covers all eligible foreign institutions in legal authorization to be provided for all undergraduate program, an amount of the country; eligible institutions in a jurisdiction instructional time whereby a full-time • A single legal authorization that within the country, and continue to student is expected to complete at least covers all eligible foreign institutions in allow proof of legal authorization to be 24 semester or trimester credit hours or a jurisdiction within the country; or provided separately for each eligible 36 quarter credit hours; or • Separate legal authorizations for institution in a country. • For a program offered in clock each eligible foreign institution in the hours, a minimum of 26 weeks of country. Eligibility of Training Programs at instructional time and, for an Reasons: To ease administrative Foreign Institutions (§ 600.54) undergraduate program, an amount of burden for foreign institutions, the Statute: Section 101(b)(1) of the HEA instructional time whereby a full-time Department sought to determine if provides, in part, that one type of student is expected to complete at least compliance with any of the foreign educational program that a Title IV 900 clock hours. institution eligibility criteria could be ‘‘institution of higher education’’ may Reasons: The Department believes the demonstrated at a nationwide level, for provide to be eligible to apply to proposed regulations are necessary all eligible institutions within a country, participate in the Title IV, HEA because many foreign institutions use rather than at the individual institution programs is a training program of at educational measurements other than level. After discussions with the non- least one year that prepares students for conventional U.S. semester, trimester, Federal negotiators and our own gainful employment in a recognized quarter credits and clock-hours. As the internal review of the Title IV occupation. Section 102(a)(2)(A) definition of an academic year—the institutional eligibility criteria, the provides for participation in the Title program length measurement used Department determined that the IV, HEA programs by entities that are here—specifically references these U.S. requirement for proof of legal comparable to such institutions under measurements, it is necessary to make authorization to provide postsecondary regulations prescribed by the Secretary. some sort of comparability education could be provided this way. Current Regulations: Section 600.54 determination in order to determine the Non-Federal negotiators were provides that, in order to be eligible to eligibility of these programs at foreign generally supportive of the apply to participate in the Title IV, HEA institutions, and the eligibility of those Department’s proposal. However, they programs, a foreign institution must foreign institutions that do not offer any did raise some concerns. Some non- provide an eligible educational program other type of Title IV, HEA eligible Federal negotiators felt that institutions that leads to a degree that is equivalent program. The non-Federal negotiators

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provided the Department with the United States Medical Licensing submission of the report, and may issue information regarding the definition of Examination (USMLE) administered by final regulations no earlier than one year non-degree programs by different the Educational Commission for Foreign after the issuance of the NPRM. countries, units of measurement for Medical Graduates (ECFMG) must have Current Regulations: Neither § 600.20, programs in other countries, and received a passing score in that which addresses the application evaluation and comparability preceding year. procedures for establishing, determinations made by private entities. Effective July 1, 2010, the HEOA reestablishing, maintaining, or The information provided consistently amended sections 102(a)(2)(A) and (B) expanding institutional eligibility and indicates that the assignment of credits of the HEA to (1) increase the pass rate certification, nor § 600.21, which or other measures of academic work by threshold for the USMLE from 60 addresses when and how an institution foreign institutions vary greatly. As a percent to 75 percent; (2) allow a foreign must update application information, result, under the proposed regulations, graduate medical school that was currently include any provisions the Secretary would make eligible based on having a clinical specific to foreign graduate medical determinations of comparability on a training program approved by a State as schools. Section 600.52 defines a foreign program-by-program basis, based on of July 1, 1992, to continue to be eligible graduate medical school as a foreign information provided by a foreign as long as it has continuously operated institution that qualifies to be listed in, institution to demonstrate that the a clinical training program in at least and is listed as a medical school in, the amount of academic work required by a one State that approves the program; most current edition of the World program it seeks to qualify as eligible is and (3) allow for the promulgation, Directory of Medical Schools published comparable to at least a one-academic- through regulations, of new eligibility by the World Health Organization year training program that is equivalent criteria for foreign graduate medical (WHO). The regulations do not currently to the academic work required for schools that have a clinical training include a definition of clinical training, eligibility of these programs at domestic program approved by a State prior to the NCFMEA, or a post-baccalaureate/ institutions. January 1, 2008, but that would not equivalent medical program. Section Two of the issues under negotiation meet the otherwise—applicable 600.55(a)(5) contains the additional by the Team I negotiating committee requirement that at least 60 percent of criteria for determining whether a (Program Integrity Issues)—the their students and graduates not be foreign graduate medical school is definition of what it means to ‘‘provide persons described in section 484(a)(5) of eligible to apply to participate in the gainful employment in a recognized the HEA in the year preceding the year Title IV, HEA programs. Currently, a occupation’’ and the definition of a for which students are seeking Title IV, foreign graduate medical school credit hour for Title IV, HEA program HEA program loans. Section generally must, in addition to satisfying purposes—could impact the eligibility 102(a)(2)(B)(iii)(IV)(aa) of the HEA the criteria in § 600.54 for determining of all programs, offered at foreign and provides that such new eligibility a foreign institution’s eligibility (except domestic institutions, that are eligible criteria must be based on the the criterion that the institution be because they are at least one academic recommendations contained in a report public or private nonprofit), satisfy all year in length and prepare students for to be prepared by August 14, 2009, by of the following criteria: gainful employment in a recognized the NCFMEA. The NCFMEA is a panel • Provide, and require its students to occupation. These Team I issues are of medical experts that evaluates the complete a program of clinical and distinct from the issue negotiated here medical school accrediting agency classroom medical instruction of not by Team II—i.e., the translation of standards used in the foreign country less than 32 months that is supervised credits or other measures of academic where medical education is provided to closely by members of the school’s work by foreign institutions for determine comparability to the faculty and that is provided either (1) purposes of determining program length standards of accreditation applied to Outside the United States, in facilities (a measure of both weeks and credit medical schools in the United States. adequately equipped and staffed to hours). The statute required the NCFMEA’s afford students comprehensive clinical report to address: entrance and classroom medical instruction; or Foreign Graduate Medical Schools requirements; retention and graduation (2) In the United States, through a (§§ 600.20, 600.21, 600.52, 600.55) rates; successful placement of students training program for foreign medical Statute: Section 102(a)(2)(A) of the in U.S. medical residency programs; students that has been approved by all HEA provides that the Secretary shall passage rate of students on the USMLE; medical licensing boards and evaluating establish criteria by regulation for the the assessment of program quality by bodies whose views are considered approval of institutions outside the State medical boards; the extent to relevant by the Secretary. United States and for the determination which graduates would be unable to • Have graduated classes during each that such institutions are comparable to practice medicine in one or more States, of the two twelve-month periods an ‘‘institution of higher education’’ as based on the judgment of a State immediately preceding the date the defined in section 101 of the HEA, medical board; any areas recommended Secretary receives the school’s request except that a foreign graduate medical, by the Comptroller General (i.e., head of for an eligibility determination. veterinary or nursing school may be for- the Government Accountability Office • Employ only those faculty members profit. That section also provides that, (GAO)) under section 1101 of the whose academic credentials are the except for foreign graduate medical HEOA; and any additional areas the equivalent of credentials required of schools that had a clinical training Secretary may require. The statute faculty members teaching the same or program that was approved by a State as provides that the regulations must, at a similar courses at medical schools in the of January 1, 1992, at least 60 percent minimum, require a USMLE pass rate of United States; of students and graduates must not be at least 75 percent. • Be approved by an accrediting body persons described in section 484(a)(5) of The HEOA also provides that the (1) that is legally authorized to evaluate the HEA in the year preceding the year Department may issue an NPRM the quality of graduate medical school for which students are seeking Title IV, addressing the new eligibility criteria educational programs and facilities in HEA program loans, and that at least 60 for foreign graduate medical schools no the country where the school is located; percent of students and graduates taking earlier than 180 days after the and (2) whose standards of accreditation

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of graduate medical schools have been approved comparable foreign country Proposed § 600.20(a)(3)(i)(A) and evaluated by the advisory panel of other than the country in which the § 600.20(b)(3)(i)(A) would provide that, medical experts established by the main campus is located, the institution’s for initial certification or for Secretary and have been determined to medical accrediting agency must have recertification, a foreign graduate be comparable to standards of conducted an on-site evaluation and medical school (i.e., a freestanding accreditation applied to medical schools specifically approved the clinical foreign graduate medical school or a in the United States. training sites in order for students foreign institution that includes a In addition, current regulations attending the site to be eligible to foreign graduate medical school) would provide that foreign graduate medical borrow Title IV, HEA program funds. be required to list on the application to schools that do not have a clinical Furthermore, clinical instruction offered participate all educational sites and training program that has been at a site in a foreign NCFMEA-approved where they are located, except for those continuously approved by a State since country must be offered in conjunction locations that are not used regularly, but January 1, 1992, must— with medical educational programs instead are chosen by individual • During the academic year preceding offered to students enrolled in students who take no more than two the year for which any of the school’s accredited medical schools located in electives at the location for no more students seeks a FFEL program loan, that approved foreign country. The two than a combined total of eight weeks. have at least 60 percent of those exceptions are that these criteria would In § 600.52, the proposed regulations enrolled as full-time regular students in not have to be met if the clinical would add a definition of clinical the school and at least 60 percent of the training location is included in the training. Clinical training would be school’s most recent graduating class be accreditation of a medical program defined as the portion of a graduate persons who did not meet the accredited by the Liaison Committee on medical education program that counts citizenship and residency criteria Medical Education (LCME), or if no as a clinical clerkship for purposes of contained in section 484(a)(5) of the individual student takes more than two medical licensure. Proposed HEA, 20 U.S.C. 1091(a)(5); and • electives at the clinical training location §§ 600.20(a)(3)(i)(B) and (b)(3)(i)(B) For a foreign graduate medical and the combined length of the electives school outside of Canada, have at least would require freestanding foreign does not exceed eight weeks. 60 percent of the school’s students and graduate medical schools, and foreign Proposed § 600.55(e)(1) would require graduates who took any step of the institutions that include a foreign USMLE administered by the ECFMG a foreign graduate medical school to graduate medical school, to identify, for (including the ECFMG English test) in have: (1) A formal affiliation agreement each clinical site reported in the the year preceding the year for which with any hospital or clinic at which all certification or recertification any of the school’s students seeks a or a portion of the school’s core clinical application as required under FFEL program loan to have received training or required clinical rotations §§ 600.20(a)(3)(i)(A) and (b)(3)(i)(A), the passing scores on the exams. In are provided; and (2) either a formal type of clinical training (core, required performing the calculation, a foreign affiliation agreement or other written clinical rotation, not required clinical graduate medical school must count as arrangements with any hospital or clinic rotation) offered at that site. a graduate each person who graduated at which all or a portion of its clinical Proposed § 600.20(c)(5) would require from the school during the three years rotations that are not required are a foreign graduate medical school (i.e., preceding the year for which the provided, except for those locations that a freestanding foreign graduate medical calculation is performed. are not used regularly, but instead are school or a foreign institution that Proposed Regulations: Location of a chosen by individual students who take includes a foreign graduate medical graduate medical education program, no more than two electives at the school) that adds a location that offers affiliation agreements, and application location for no more than a combined all or a portion of the school’s core and notification procedures for foreign total of eight weeks. clinical training or required clinical graduate medical schools The proposed regulations would rotations to apply to the Secretary and Section 600.55(h)(2) of the proposed require these affiliation agreements or wait for approval if it wishes to provide regulations would provide that no other written arrangements to state how Title IV, HEA program funds to the portion of the medical education the following will be addressed at each students at that location, except for program offered to U.S. students by a site: (1) Maintenance of the school’s those locations that are included in the foreign graduate medical school, other standards; (2) appointment of faculty to accreditation of a medical program than the clinical training portion of the the medical school staff; (3) design of accredited by the LCME. If a foreign program, would be allowed to be the curriculum; (4) supervision of graduate medical school (i.e., a located outside of the country in which students; (5) provision of liability freestanding foreign graduate medical the main campus of the school is insurance; and (6) evaluation of student school or a foreign institution that located. performance. includes a foreign graduate medical For clinical training sites located Proposed § 600.20(a)(3)(iii) and school) adds a location that offers all or outside the United States, proposed § 600.20(b)(3)(iii) would require a a portion of the school’s clinical § 600.55(h)(1) would require that, with foreign graduate medical school (i.e., a rotations that are not required, proposed two exceptions, all portions of the freestanding foreign graduate medical § 600.21(a)(10) would require the school medical education program offered to school or a foreign institution that to notify the Secretary no later than 10 U.S. students must be located in a includes a foreign graduate medical days after the location is added, except country whose medical school school) to provide copies of the for those locations that are included in accrediting standards are comparable to affiliation agreements with hospitals the accreditation of a medical program standards used in the United States, as and clinics that it is required to have accredited by the LCME, or that are not determined by the NCFMEA. Under under proposed § 600.55(e)(2) as a part used regularly, but instead are chosen proposed § 600.55(h)(3), with the same of any application for initial by individual students who take no two exceptions, if any portion of the certification or recertification to more than two electives at the location clinical training portion of the participate in the Title IV, HEA for no more than a combined total of educational program is located in an programs. eight weeks.

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In addition, proposed student at a site located in a foreign submit the data on MCAT scores and § 600.20(a)(3)(ii) and § 600.20(b)(3)(ii) country other than the country in which placement in a U.S. residency program would require that, for initial the main campus is located or in the to the Secretary only upon request. In certification or for recertification, a United States, unless that location is addition, proposed § 600.55(d) would foreign graduate medical school (i.e., a included in the accreditation of a require a foreign graduate medical freestanding foreign graduate medical medical program that is accredited by school to obtain, at its own expense and school or a foreign institution that the LCME. by September 30 of each year submit to includes a foreign graduate medical Proposed § 600.55(a)(3) would require the Secretary, unless the Secretary school) indicate whether it offers (1) that a foreign graduate medical school notifies schools that it will receive the only post-baccalaureate/equivalent appoint, rather than employ, only those information directly from the ECFMG, medical programs; (2) other types of faculty members whose academic or other responsible third parties, programs that lead to employment as a credentials are the equivalent of USMLE scores earned during the doctor of osteopathic medicine or doctor credentials required of faculty members preceding award year by at least each of medicine; or (3) both. Proposed teaching the same or similar courses at student who is a U.S. citizen, national, § 600.52 would define a post- medical schools in the United States. or eligible permanent resident, and each baccalaureate/equivalent medical Finally, proposed § 600.55(a)(4) graduate who is a U.S. citizen, national, program as a program that consists would continue to require that a foreign or eligible permanent resident who solely of courses and training leading to graduate medical school have graduated graduated during the three preceding employment as a doctor of medicine or classes during each of the two twelve- years, and the date each student took doctor of osteopathic medicine, and is month periods immediately preceding each test, including any failed tests. The offered by a foreign graduate medical the date the Secretary receives the USMLE scores submitted would have to school that requires, as a condition of school’s request for an eligibility be disaggregated by step/test for Step 1, admission, that its students have determination. which assesses knowledge and already completed their non-medical Accreditation application of basic science concepts; undergraduate studies. Step 2–Clinical Skills (Step 2–CS), The proposed regulations would make which assesses knowledge of clinical General no substantive changes to the science principles; and Step 2–Clinical Proposed § 600.52 would replace the accreditation requirements for foreign Knowledge (Step 2–CK), which tests a definition of a foreign graduate medical graduate medical schools. student’s ability to examine and interact school and clarify that a foreign Admission Criteria and Collection and with patients and colleagues, and by graduate medical school can be free- Submission of Data attempt. A school would not be required standing or a component of an eligible to submit data on the USMLE Step 3, foreign institution. Section 668.55(c) would require a which provides a final assessment of a Proposed § 600.55(a)(1) would foreign graduate medical school with a physician’s ability to assume continue to provide that, in addition to post-baccalaureate/equivalent medical independent delivery of general medical satisfying the general criteria for program to require students accepted for care. All foreign graduate medical determining a foreign institution’s admission who are U.S. citizens, schools would be required to submit eligibility (except the criterion that the nationals, or permanent residents to these data, even those that are not institution be public or private have taken the Medical College required to meet the 60 percent/75 nonprofit), a foreign graduate medical Admission Test (MCAT) and to have percent USMLE pass rate requirement. school would have to satisfy all reported their scores to the school. In applicable criteria in this section, except addition, § 600.55(c) would require a Notification to Accrediting Body that the proposed regulations would foreign graduate medical school to Proposed § 600.55(e)(2) would require clarify that the general criteria that must determine the consent requirements for a foreign graduate medical school to be satisfied are all applicable criteria in and require the necessary consents of all notify its accrediting body within one part 600, rather than just § 600.55. students accepted for admission who year of any material changes in (1) the Proposed § 600.55(a)(2) would require are U.S. citizens, nationals, or eligible educational programs, including a foreign graduate medical school to permanent residents to enable the changes in clinical training programs; provide, and require its students to school to comply with the collection and (2) the overseeing bodies in the complete, a program of clinical training and submission requirements in formal affiliation agreements with and classroom medical instruction of proposed § 600.55(d) for MCAT scores, hospitals and clinics. not less than 32 months, that is residency placement, and USMLE supervised closely by members of the scores. Citizenship and USMLE Pass Rate school’s faculty, and that is both (1) Proposed § 600.55(d) would require a Percentages provided in facilities adequately foreign graduate medical school to Proposed § 600.55(f)(1)(i)(B) would equipped and staffed to afford students obtain, at its own expense, and by allow a foreign graduate medical school comprehensive clinical and classroom September 30 of each year submit to its to be exempt from the existing medical instruction; and (2) approved accrediting authority: (1) MCAT scores citizenship requirement (in proposed by all medical licensing boards and for all students who are U.S. citizens, § 600.55(f)(1)(i)(A)) that at least 60 evaluating bodies whose views are nationals, or eligible permanent percent of the school’s students and considered relevant by the Secretary, residents admitted during the preceding recent graduates not be U.S. citizens, regardless of whether it is located award year and the number of times nationals, or eligible permanent outside or inside the United States. each student took the exam; and (2) the residents if it had a clinical training In addition, the proposed regulations percentage of students who are U.S. program approved by a State as of would make clear that a foreign citizens, nationals, or eligible January 1, 2008, and continues to graduate medical school may offer, as permanent residents graduating during operate a clinical training program in at part of its clinical training, no more than the preceding award year who are least one State that approves the two electives consisting of a combined placed in an accredited U.S. medical program. In addition, proposed total of no more than eight weeks per residency. A school would have to § 600.55(f)(2)(ii) would allow a foreign

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graduate medical school that was and require that a student complete his dollars in Federal student loans eligible to participate in the Title IV, or her educational program within 150 disbursed annually to foreign graduate HEA programs and exempt from the percent of the published length of the medical schools that are already USMLE pass rate requirement based on educational program. In addition, participating in the FFEL program. If having a clinical training program proposed § 600.55(g)(2) would require a performance levels are set to ensure approved by a State as of January 1, foreign graduate medical school to quality, they should apply to all.’’ The 1992, to continue to be eligible and document the educational remediation Department in general agrees with this exempt from the USMLE pass rate it provides to assist students in making recommendation; thus, these proposed requirement as long as it continues to satisfactory academic progress. Finally, regulations for foreign graduate medical operate a clinical training program in at proposed § 600.55(g)(3) would require a schools would apply to all foreign least one State that approves the foreign graduate medical school to graduate medical schools, except where program. Proposed § 600.55(f)(1)(ii) publish all the languages in which noted. Some non-Federal negotiators would make the following changes to instruction is offered. believed the NCFMEA report contains a the USMLE pass rate requirement: Reasons: As required by statute, the contradictory statement indicating the • Increase the USMLE pass rate recommendations of the 2009 Report to NCFMEA’s desire to limit its threshold from 60 percent to 75 percent the U.S. Congress by the National recommendations for change to a (§ 600.55(f)(1)(ii)). Committee on Foreign Medical specific group of schools (‘‘The foreign • Limit the pass rate requirement to Education and Accreditation medical schools that are subject to the Step 1, Step 2–CS, and Step 2–CK, Recommending Institutional Eligibility recommendations contained within this excluding Step 3. Criteria for Participation by Certain report are identified as * * * having • Require a foreign graduate medical Foreign Medical Schools in the Federal American citizens/permanent residents school to have at least a 75 percent pass Family Education Loan Program constitute more than 40 percent of its rate on each step/test of the USMLE (NCFMEA report) that could be fulltime enrollment and/or graduates (limited to Step 1, Step 2–CS, and Step implemented through regulations were from the preceding year.’’ page five). 2–CK), rather than a combined pass rate taken into consideration in the These non-Federal negotiators were for all steps/tests. development of these proposed concerned about the large overall • Require foreign graduate medical regulations. The report is available at administrative burden that the proposed schools to include in the calculation http://www2.ed.gov/about/bdscomm/ regulations as a whole would have on only U.S. citizens, nationals, or eligible list/ncfmea-dir/ foreign graduate medical schools with permanent residents, rather than all reporttocongress2009.pdf. The small numbers of U.S. students with students taking the USMLE. Department determined that the Title IV, HEA program loans. The • Require foreign graduate medical following recommendations made by Department made clear during the schools to include only first time test the NCFMEA could be addressed negotiations that it believes the takers in the calculation. through regulatory change: 1(a), 1(b), 3, statement identified by the non-Federal For example, the award year 2011– 4(a), 4(b), 4(c), 9(a), 9(b), 10, 12(a), 12(b), negotiators is merely a restating of the 2012 pass rate for the USMLE–Step 1 14(a) and 14(b). The Committee’s statute. Regardless, the Department would be calculated as follows: consideration of these recommendations believes that these proposed regulations Those from the denominator who is discussed below in relation to the are important to the integrity of the Title passed Step 1. areas of the proposed regulations to IV, HEA programs and should apply to All U.S. citizens, nationals, and which they pertain, except for all foreign graduate medical schools, eligible permanent residents who are Recommendations 14(a) and 14(b), except where noted. students during award year 2010–2011, which are discussed under Certification or who graduated in award year 2008– of Foreign Institutions (§§ 600.52, and Location of a Graduate Medical 2009, 2009–2010, or 2010–2011, and 668.13) above. Education Program, Affiliation took Step 1 of the exam for the first time Although the HEOA specified that the Agreements, and Application and in award year 2010–2011. NCFMEA was to take into account in Notification Procedures for Foreign Under proposed § 600.55(f)(4), if the the development of their Graduate Medical Schools result of any step/test pass rate would recommendations the results of the Under section 102(a)(2)(B) of the be based on fewer than eight students, GAO report related to foreign graduate HEA, a foreign graduate medical school a single pass rate would be determined medical schools, the HEOA specified a must be accredited or preaccredited by for the school based on the performance later deadline for the issuance of the an accrediting agency recognized by the of U.S. citizens, nationals, and eligible GAO report than for the NCFMEA Secretary, or approved under foreign permanent residents on Step 1, Step 2– recommendations. As a result, the GAO accrediting standards found comparable CS and Step 2–CK combined. If that report was not completed in time for the by the NCFMEA to standards applied in combined pass rate would be based on NCFMEA to take it into account. The the United States. In order for this fewer than eight step/test results, the GAO report was published June 2010. provision to have effect, and as the school would be deemed to have no The Department will take the GAO Department’s implementing regulations pass rate for that year, and the results report into consideration as the have always provided, an accrediting for the year would be combined with rulemaking process continues. Although body approved by NCFMEA must be each subsequent year until a pass rate the statute directed the NCFMEA to legally authorized to evaluate the based on at least eight step/test results make recommendations for a specific quality of the medical school could be derived. group of schools, the NCFMEA stated on educational programs and facilities in page seven of its report, ‘‘It also suggests the country in which those schools are Other Criteria the recommendations contained within located. The Department generally Proposed § 600.55(g)(1) would require the report be applied to all foreign construes this requirement for a foreign graduate medical school to graduate medical schools participating comparable accreditation to mean that apply existing § 668.16(e)(2)(ii)(B), (C), in the FFEL program. The NCFMEA (except for clinical training locations in and (D) for establishing a quantitative does not believe that two sets of criteria the U.S. that are provided for in the satisfactory academic progress policy should be applied, given the millions of statute) the graduate medical program

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must be located in the country in which non-Federal negotiators felt was negotiators suggested various ways of the main campus of the school is sufficient oversight to permit a portion achieving what they felt was sufficient located. Although a medical accrediting of the basic science part of the program oversight of these locations: e.g., body may accredit locations of to be located in a non-NCFMEA limiting the amount of the program that institutions in other countries, the approved foreign country other than the could be offered there, limiting the Department believes this is the best country in which the main campus is amount of the program an individual interpretation of the statute because, located: Limiting a school to the student could take at the location, and with limited exceptions, an accrediting establishment of one such site, limiting limiting the number of students who body’s actual authority does not extend the amount of the program that could be could attend the location. The non- beyond the country in which it is offered there, requiring a visit and Federal negotiators pointed to language established. The Department currently approval by the school’s accrediting in the September 2009 NCFMEA does not approve for participation in the body, setting cohort default rate and Guidelines for Requesting a Title IV, HEA programs any educational USMLE pass rate thresholds, requiring Comparability Determination (page 17) program in which a portion of what is specific evaluations by the school’s that omits any mention of non-core commonly referred to as the basic accrediting body, requiring a formal portions of a clinical training program science part of the program is located agreement/recognition of the accrediting in its discussion of the site visits that outside of the country in which the body’s authority by the country in the school’s accrediting body is required main campus is located. However, the which the site was located, and to make (the document is available at Department has allowed for the clinical requiring an NCFMEA determination http://www2.ed.gov/about/bdscomm/ training part of the program to be that the accrediting body has list/ncfmea-dir/ncfmea-guidelines.pdf). located in an approved comparable demonstrated its capacity to conduct In addition, some non-Federal foreign country other than the country off-site and on-site reviews of the site negotiators felt that locations that are in which the main campus is located, if that are comparable to the reviews included in the accreditation of a the site is located in an NCFMEA conducted of the main campus and medical program accredited by the approved country, the institution’s additional locations within the country LCME, such as locations of some medical accrediting agency has in which the main campus is located. Canadian schools, should be exempt conducted an on-site evaluation and Others suggested that a portion of the because the LCME accrediting standards specifically approved the site, and the basic science part of the program be are those that are applied to medical clinical instruction is offered in allowed to be located in a country other schools in the United States. The conjunction with medical educational than the country in which the main Department agreed. programs offered to students enrolled in campus is located if the location is Because of the lack of direct authority of accrediting bodies from different accredited medical schools located in accredited by a comparable accrediting countries, the Department held firm on that foreign country. The Department’s agency. initial proposal reflected this policy, limiting the location of the basic science Non-Federal negotiators also argued which is also the approach portion of the program to the for more leniency regarding the offering recommended by NCFMEA institution’s home country. The Recommendation 12(a). of the clinical training part of the Department reiterated its belief that the Several non-Federal negotiators felt program in countries other than the basic sciences part of a graduate medical this initial proposal was too limiting. country in which the main campus is program should be located in the same The Committee discussed at length the located. While some felt that all clinical country as the main campus so that the different parts of a graduate medical training should be permitted to be majority of the classroom instruction program and the characteristics of each located in another country without as part of the program will be under the part that might justify different much oversight as the Department direct authority of the school’s treatment. In addition to distinguishing proposed, others felt that leniency was accrediting body. In one draft of the between the basic science and the appropriate only for the clinical rotation proposed regulations, the Department clinical training parts of the program, part because exposure to different referred to this part of the program as the Committee discussions medical environments and cultures was the ‘‘didactic components.’’ A non- distinguished between the different most important during the hospital- Federal negotiator pointed out that this parts of clinical training referred to in based part of the clinical training where term could be construed to include these proposed regulations as the core the students are in direct contact with lectures and other instruction that take rotations, the required clinical rotations patients and medical residents. Other place during the clinical training (the electives that students are required non-Federal negotiators felt that portion of the program. The non-Federal to take), and the not required clinical leniency was appropriate only for the negotiator argued that blurring the line rotations (the electives that students can not-required-clinical-rotation part, between the ‘‘basic science’’ and the choose). because that is when a student will most ‘‘clinical training’’ portions of the In general, some non-Federal benefit from the exposure without the programs could lead to an interpretation negotiators felt that matriculating in program losing coherence. The of the regulations whereby a foreign different countries as part of a graduate Committee discussed how the not- graduate medical school would offer medical program would benefit students required-clinical-rotation part of the parts of what is really the basic science by exposing them to medical education program may be very individualized, portion of the program in the United and practice in different environments with numerous sites, sometimes States. As a result, the Committee and cultures. One non-Federal suggested by students, at which agreed to add a definition of clinical negotiator argued that allowing a students study for short periods of time. training to the proposed regulations to portion of the basic science part of the They pointed out that, as a result, some make clear that only parts of the program to be located in the United sites are only used for a short period of program that meet that definition may States would assist in providing a time. They noted that an accrediting be located in the United States. The smooth transition to clinical training in body would not have the time or definition was also added to clarify the the United States. The negotiator also resources to visit and approve these terminology that the proposed proposed a way of achieving what some short-term sites. Non-Federal regulations are using for the

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components of clinical training, as than two electives at the location for no instead are chosen by individual provisions both here and elsewhere in more than a combined total of eight students who take no more than two the proposed regulations differentiate weeks. Also, in accordance with electives at the location for no more among these components. NCFMEA Recommendation 12(b), than a combined total of eight weeks, do The Department agreed that it was proposed § 600.20(a)(3)(iii) and not have to be listed. The Department acceptable to balance less oversight of a § 600.20(b)(3)(iii) would require a believes it is essential for the short-term location at which individual foreign graduate medical school to Department to be aware of all locations students were taking a small portion of provide as a part of any application for of an institution to which Title IV, HEA the not-required-clinical-rotation part of initial certification or recertification to program funds are provided, and agreed the program, with the benefits of participate in the Title IV, HEA to make an exception only for sites that exposure to other medical environments programs, copies of the affiliation are not used regularly and, therefore, and cultures. The Department believes agreements that it is required to have for would be difficult and burdensome to this is warranted because of the locations that offer the core and track. Some non-Federal negotiators individualized nature of the not- required-clinical-rotation parts of the indicated that most institutions can and required-clinical-rotation part of the clinical training, but not copies of do track the locations the proposed program, when individual sites are often written arrangements for locations regulations would require them to used for short periods of time. The offering the not-required-clinical- report to the Department, so providing Department also agreed that locations in rotation part of the program. The this information to the Department countries other than the country in Department was persuaded by the non- would not be unduly burdensome. which the main campus is located that Federal negotiators who noted that it Consistent with these proposed are included in the accreditation of a would be quite burdensome for regulations, proposed § 600.20(c)(5) medical program accredited by the institutions to execute formal affiliation would require a foreign graduate LCME should also be exempt from agreements with the sites of rotations medical school that adds a location that meeting the three criteria (i.e., required that are not required, because there are offers all or a portion of the school’s to be located in an approved comparable often so many of them and use is often core clinical training or required clinical country, required on-site evaluation and for the short-term. They assured the rotations to apply to the Secretary and specific approval of the site by the Department that other written wait for the Secretary’s approval before institution’s medical accrediting agency, arrangements, such as letters of good providing Title IV, HEA program funds and the requirement that instruction standing, insurance arrangements, and to the students at the location. In must be offered in conjunction with other documents specific to a particular proposed 600.21(a)(10), they would medical educational programs offered to student, are made with these locations allow a foreign graduate medical school students enrolled in accredited medical that cover the elements of formal that adds a location that offers all or a schools located in that approved foreign affiliation agreements. Because of the portion of the school’s clinical rotations country) because the LCME accrediting multitude of documentation comprising that are not required to provide Title IV, standards are those that are applied to the written arrangements with these HEA program funds to the students at medical schools in the United States. often short-term sites, the Department the location without waiting for Therefore, the Department’s final did not believe it was necessary to approval from the Secretary, provided proposal, which was agreed to by the require a regular submission to the the school notifies the Secretary no later than 10 days after the location is added. Committee, provided that clinical Department. In accordance with training may be offered outside the As with the proposed exceptions to the NCFMEA Recommendation 12(b), to United States and the country in which requirements for offering a portion of ensure continuity of the eligible the main campus is located without the the clinical training portion of the program from the main campus to site meeting the three criteria, if the program outside of the country in which remote locations, the proposed location is included in the accreditation the main campus of the school is regulations would require that all of a medical program accredited by the located, and the proposed regulations required affiliation agreements or other LCME, or if no individual student takes specifying when affiliation agreements written arrangements address more than two electives at the location would be required, an exception from maintenance of the school’s standards, and the combined length of the electives the prior approval requirement for appointment of faculty, design of the does not exceed eight weeks. adding locations offering core/required Because of the importance and more curriculum, provision of liability rotations would be allowed for those standardized nature of core and insurance, and supervision and locations that are included in the required clinical rotations, proposed evaluation of student performance. accreditation of a medical program § 600.55(e)(1) would require a foreign Although an institution would not be accredited by the LCME. No notification graduate medical school to have a required to have formal affiliation to the Department would be required for formal affiliation agreement with any agreements with locations that offer the adding LCME locations, or locations hospital or clinic at which all or a not-required-clinical-rotation part of the offering only non-core, non-required portion of the school’s core clinical clinical training, proposed rotations that are not used regularly, but training or required clinical rotations § 600.20(a)(3)(i) and § 600.20(b)(3)(i) instead are chosen by individual are provided. However, for any hospital would provide that, for initial students who take no more than two or clinic at which only clinical rotations certification or for recertification, a electives at the location for no more that are not required are provided, a foreign graduate medical school would than a combined total of eight weeks. school would be permitted to have other be required to list these locations and So that the Department may track and written arrangements instead of a formal where they are located on the enforce provisions specific to post- affiliation agreement, and the proposed application to participate, along with baccalaureate/equivalent medical regulations would not require a school the sites at which the non-clinical, core programs, proposed §§ 600.20(a)(3)(ii) to have any written arrangements for clinical, and required-clinical-rotation and 600.20(b)(3)(ii) would require that, those locations that are not used parts of the program are offered, except for initial certification or for regularly, but instead are chosen by that those not-required-clinical-rotation recertification, a foreign graduate individual students who take no more locations that are not used regularly, but medical school (i.e., a freestanding

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foreign graduate medical school or a medical education program, affiliation Ultimately, the Department agreed to foreign institution that includes a agreements, and application and retain from Recommendations 1(a) and foreign graduate medical school) notification procedures for foreign 1(b) only the provision that would indicate whether it offers only post- graduate medical schools above), the require U.S. students who are admitted baccalaureate/equivalent medical proposed regulations would make clear to a school having a post-baccalaureate programs, other types of programs that that a foreign graduate medical school equivalent medical program to have lead to employment as a doctor of may offer, as part of its clinical training, taken the MCAT and to report the score. osteopathic medicine or doctor of no more than two electives consisting of This provision would not require a medicine, or both. a combined total of no more than eight foreign graduate medical school to give Finally, a proposed definition of weeks per student at a site located in a weight to a U.S. student’s score on the NCFMEA was added to make clear that foreign country other than the country MCAT as part of its admission the NCFMEA is the operational in which the main campus is located or requirements. Although some non- committee of medical experts in the United States, unless that location Federal negotiators expressed concern established by the Secretary to is included in the accreditation of a that the MCAT would not be readily determine whether the medical school medical program that is accredited by available to U.S. students who are accrediting standards used in other the LCME. Non-Federal negotiators residing outside of the United States countries are comparable to those noted that foreign graduate medical prior to enrolling in a foreign graduate applied to medical schools in the U.S., schools do not necessarily directly medical school, it was determined that for purposes of evaluating the eligibility employ faculty for the clinical training the MCAT is administered several times of accredited foreign graduate medical portion of the program, but rather schools to participate in the Title IV, appoint them and the individuals are during the year in countries around the HEA programs. usually employed by the hospital or world. The inclusion of the requirement that General clinic at which the clinical training takes place. The Committee agreed the a foreign graduate medical school Proposed § 600.52 would remove from regulations should be changed to reflect determine the consent requirements for, the definition of a foreign graduate actual practice. and require the necessary consents of, medical school the requirement that a all students accepted for admission who foreign graduate medical school be a Admission Criteria and Collection and Submission of Data are U.S. citizens, nationals, or eligible foreign institution that qualifies to be permanent residents to enable the listed in, and is listed as a medical The Department initially proposed school to comply with the collection school in, the most current edition of that, consistent with NCFMEA and submission requirements for MCAT the World Directory of Medical Schools Recommendations 1(a) and 1(b), a scores, residency placement, and published by the World Health foreign graduate medical school would USMLE scores reflects NCFMEA Organization (WHO) as the Department have to require students who it admits Recommendations 9(a), 3, and 4(a), but believes it is no longer a needed to have a specific educational limits the requirement to U.S. citizens, measure of comparability in light of the background (e.g., for a post- nationals, or eligible permanent proposed new criteria for foreign baccalaureate equivalent medical residents. These proposed regulations graduate medical schools as well as the program, students must have a would not establish eligibility proposed changes to the definition of a baccalaureate degree, or at least 90 thresholds for MCAT scores or foreign institution. semester credit hours or the equivalent, residency placement. As indicated in Proposed § 600.55(a)(1) would clarify in general education that includes, but the discussion of these that the general criteria that must be is not limited to, coursework in the recommendations in the NCFMEA satisfied is all applicable criteria in part social sciences, history, and languages). report, the NCFMEA believes, and the 600, rather than just § 600.54, to make Several of the non-Federal negotiators clear that, unless otherwise specified, felt that such provisions were unduly Department agrees, that successful all the provisions of part 600 apply to limiting. The Committee, including the performance by an institution in these foreign institutions, including foreign Department, ultimately agreed it would three areas may be valuable for the graduate medical schools. Current be more appropriate for the NCFMEA to evaluation of the quality of education regulations require only instruction that establish these provisions as guidelines being provided to students attending is offered outside of the United States to for accrediting bodies. The Department foreign graduate medical schools. The be provided in facilities adequately had also included as a part of its initial data will facilitate the NCFMEA’s equipped and staffed to afford students proposal, that a school having an further study of the issues, strengthen comprehensive clinical and classroom integrated program for a first the accreditation process, and allow for medical instruction, and require only professional program leading to a Doctor the potential development of additional the training located in the United States of Medicine (M.D.) degree, or its recommendations for regulatory change, to be approved by all medical licensing equivalent, must require students who and/or the NCFMEA standards for boards and evaluating bodies whose are U.S. citizens, nationals, or evaluating accrediting bodies of foreign views are considered relevant by the permanent residents to take the MCAT graduate medical schools. Non-Federal Secretary. Proposed § 600.55(a)(2) no later than three years after admission negotiators argued, and the Department would apply these provisions to all to the program. Although this provision agreed, that the Department’s main portions of the medical program, was consistent with NCFMEA concern is how well students from the regardless of whether the program is Recommendation 1(b), the Department United States, who represent potential located outside or inside the United was ultimately persuaded to remove the borrowers of Title IV, HEA funds, are States, as the Department believes they provision by non-Federal negotiators doing at these schools. The non-Federal are good requirements regardless of who pointed out that requiring students negotiators felt that it was inappropriate location. To provide consistency with to take the MCAT early in the program to include non-U.S. students who may the proposed provisions addressing the would distract them from the education not have as much at stake when they location of clinical training (see the that was preparing them to take the take the United States’ MCAT or discussion of Location of a graduate USMLE. USMLE, or attempt to be placed in a

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U.S. residency, and, thus, may skew the available, the Department will evaluate would allow a school’s accrediting body data. the appropriateness of these data for to assess any substantive impact the Some non-Federal negotiators meeting the proposed requirement. change would have on the school’s expressed concern that requiring foreign Although the Department originally operations. institutions to obtain student consent proposed requiring schools to submit for the release of information may be in data on all steps of the USMLE, non- Citizenship and USMLE Pass Rate violation of certain countries’ privacy Federal negotiators pointed out that it Percentages laws. In response to the Department’s would be extremely difficult for schools The proposed change in request for specific information, the to obtain data on Step 3. The non- § 600.55(f)(1)(i)(B) would allow a foreign Department was provided with an Federal negotiators noted that this graduate medical school to be exempt analysis of the privacy laws and difficulty stems from the fact that Step from the existing citizenship rate requirements of one country that had 3, which is administered by the requirement if it had a clinical training been identified as one that could have Federation of State Medical Boards program approved by a State as of problems in this area. After analyzing (FSMB), is taken by students after they January 1, 2008, and continues to the information, the Department have graduated from the institution and operate a clinical training program in at concluded that there would be several a student cannot sign a consent to least one State that approves the ways that institutions in that country provide information on Step 3 to third program reflects the statutory change could legally obtain the required parties until he or she is actually taking made by the HEOA. As a result, both information from students, and the test. Although the Department is foreign graduate medical schools that committed to working with those continuing to explore the collection of had a clinical training program schools and schools in any country that data from the FSMB for evaluating its approved by a State as of January 1, have concerns to facilitate compliance. use in the future, the Department agrees 1992, and those that had a clinical The Department noted, however, that that it would be unreasonable to require training program approved by a State as the Department cannot waive statutory institutions to be responsible for its of January 1, 2008, are exempt from the or regulatory requirements used to collection and submission at this time. citizenship rate provision, provided the determine institutional eligibility and As one of the purposes of the data school continues to operate a clinical that if a foreign country’s privacy laws submission provision is to provide data training program in at least one State did preclude obtaining the information for the evaluation of whether additional that approves the program. The increase and materials necessary for establishing performance measures should be in the USMLE pass rate threshold from compliance the institutions located in required of foreign graduate medical 60 percent to 75 percent also reflects a those countries would not be able to schools, all foreign graduate medical change made by the HEOA, as does qualify for participation in the Title IV, schools, even those that are exempt proposed § 600.55(f)(2)(ii), which would HEA programs. from meeting the 60 percent/75 percent allow a foreign graduate medical school The proposed regulations state that USMLE pass rate requirement, would that was eligible and exempt from the collection and submission of data must have to submit the data under proposed USMLE pass rate requirement based on be done at the institution’s own expense § 600.55(d). having a clinical training program to emphasize that the institution is The Department believes that the approved by a State as of January 1, ultimately responsible for providing this proposed periods for which data must 1992, to continue to be eligible and information. In the future, the be collected and the proposed annual exempt from the USMLE pass rate Department may be able to obtain the September 30 submission deadline will requirement as long as it continues to necessary USMLE pass rates directly provide for consistent submission of operate a clinical training program in at from the ECFMG. However, unless and data by all schools, taking into least one State that approves the until the Secretary notifies institutions consideration the timing of the events program. that this is the case, an institution for which data must be obtained. As Although the Department originally would be required to take whatever these data, other than the USMLE data, proposed requiring pass rate steps are necessary to obtain and are to be collected for the use of the information for all steps of the USMLE, provide the data to its accrediting accrediting bodies and, indirectly, by as stated previously in the discussion of agency and the Secretary. Currently, an the NCFMEA, schools would be the submission of USMLE pass data institution can obtain a student’s required to make submissions of the under Admission criteria and collection consent for USMLE pass rate data on data to their accrediting bodies but, and submission of data above, the Steps 1 and 2 by requiring students to except for data on the USMLE, would be Department believes that it would be sign ECFMG’s Institutional Request for required to submit such data to the unreasonable to require institutions to an Official USMLE Transcript Form 173. Secretary only upon request. The obtain data on Step 3 of the USMLE for The form and information on its use are Secretary would collect the USMLE data inclusion in the pass rate at this time. available at the ECFMG’s Web site at on a regular basis in support of the As suggested by NCFMEA http://www.ecfmg.org/usmle/ requirement in § 600.55(f)(1)(ii) that an Recommendations 4(b) and 4(c), the transcripts/index.html. We also note institution have at least a 75 percent proposed regulations would require a that the ECFMG has established an pass rate on the USMLE. foreign graduate medical school to have online procedure by which schools can at least a 75 percent pass rate on each obtain data on Steps 1 and 2 directly Notification to Accrediting Body step/test of the USMLE (limited to Step from the ECFMG (see the ECFMG’s Web Proposed § 600.55(e)(2), which would 1, Step 2–CS, and Step 2–CK), rather site at http://www.ecfmg.org/ require a foreign graduate medical than a combined pass rate for all steps/ emswp.html). As this procedure is still school to notify its accrediting body tests. This approach would provide an new, the Committee was not able to within one year of any material changes assessment of the sequential ascertain whether the data provided to in educational programs and the performance of students on the USMLE, schools in this manner would be overseeing bodies in the formal which the NCFMEA and the Department sufficient for schools to meet the affiliation agreements with hospitals believe provides a better measure of a requirements of these proposed and clinics, would reflect NCFMEA medical program’s effectiveness by regulations. As information becomes Recommendations 12(a) and 12(b) and evaluating how well it prepares students

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for each step/test of the USMLE and, in participation could be put at risk by the satisfactory academic progress particular, will allow for the judgment failure of just a small number of standards. of the performance of each institution in students, or even one student, for those Although the Committee agreed with preparing students for future clinical with fewer than four students who the NCFMEA that there is merit to performance. would be included in the cohort for the requiring institutions to document the The Committee decided to limit the calculation. The non-Federal negotiators remediation it provides to assist USMLE pass rate calculation to U.S. felt that schools with small numbers of students in making satisfactory citizens, nationals, and eligible students should be exempt from this academic progress so that, as needed, permanent residents for the reasons requirement or, at the very least, the the Department, the NCFMEA, or the discussed for limiting the collection and regulations should provide an accrediting body may collect and submission of data related to MCAT alternative way for these institutions to examine the data to see if this is an area scores, placement in a U.S. medical comply. The Department noted that the of concern that may need to be residency program, and the USMLE in statute does not provide for exempting addressed, they did not believe it was the same manner (see Admission criteria institutions from this requirement. necessary or cost effective to require the and collection and submission of data However, in response to these concerns, regular submission of these data to the above). That is, the Committee desired the Department proposed an alternative Department. to focus the pass rate on the students the way to comply in § 600.55(f)(4) to allow Finally, proposed § 600.55(g)(3), Department is most concerned about, for the use of a rate that would combine which would require a foreign graduate students from the United States, who the performance of U.S. students on medical school to publish all the represent potential borrowers of Title Step 1, Step 2–CS and Step 2–CK, if the languages in which instruction is IV, HEA funds, and to prevent a school’s result of any step/test pass rate would offered, would provide information to rate from being lowered by non-U.S. be based on fewer than eight students. students that could be essential to a students who may not be as invested in If that combined pass rate would be student’s success in the program. passing the USMLE as U.S. students. based on fewer than eight step/test Although NCFMEA Recommendation As for the actual calculation used to results, the school would be deemed to 10 suggested requiring schools to determine the pass rate for each step/ have no pass rate for that year, and the publish the primary language of test of the USMLE, the Department had results for the year would be combined instruction, and if not English, identify suggested a rate that would have with each subsequent year until a pass any alternate language of instruction, required an institution to count an rate based on at least eight step/test the Committee agreed that requiring individual student in the denominator results could be derived. The schools to publish all languages in for each time the student took Step 1, Department believes that this approach which instruction is offered would be Step 2–CS and Step 2–CK. The applies the pass rate provision to all more beneficial and no more Department believed this approach was institutions, while appropriately burdensome. consistent with NCFMEA mitigating the unduly harsh effect a Foreign Veterinary Schools (§ 600.56) Recommendation 4(b) and was a better small number of failures could have on measure of how well prepared students the pass rate calculation for schools Statute: Section 102(a)(2)(A)(ii) of the were by the medical education program with small numbers of U.S. students. HEA stipulates that Title IV borrowers because it would reflect failures on attending a foreign for-profit veterinary repeated attempts. Some non-Federal Other Criteria school must complete clinical training negotiators felt that this approach was The proposed requirements in at an approved veterinary school located too burdensome and not an appropriate § 600.55(g)(1) and (g)(2) that would in the United States. The HEA does not means of achieving the Department’s require a foreign graduate medical establish additional eligibility criteria goal. They argued that the pass rates of school to include in its satisfactory specific to foreign veterinary schools. students in subsequent attempts is academic progress standards a Section 102(a)(2)(A) of the HEA requires typically quite low; thus, such a requirement that a student complete his the Secretary, through regulations, to measure would be redundant and not or her educational program within 150 develop eligibility criteria for foreign more indicative of the quality of the percent of the published length of the institutions that are comparable to the institution’s instruction. Eventually, the educational program and document the eligibility criteria for domestic non-Federal negotiators suggested that educational remediation it provides to ‘‘institutions of higher education.’’ the calculation be limited to first time assist students in making satisfactory Current Regulations: Section 600.56 of test takers only. The non-Federal academic progress adopts NCFMEA the Institutional Eligibility regulations negotiators noted that reports issued in Recommendation 9(b), but requires includes additional eligibility criteria other contexts about pass rates for schools to document, rather than submit for foreign veterinary schools. Under domestic schools have included only to the Department as the NCFMEA § 600.56(a)(1)(i), foreign veterinary first time test takers. Ultimately, the recommended, any educational school facilities outside the United Department was persuaded that a remediation provided. States must be adequately equipped and proposed regulation that would require For consistency with current staffed to provide students foreign graduate medical schools to regulations, in adopting NCFMEA comprehensive clinical and classroom include only first time test takers in the Recommendation 9(b), suggesting that a veterinary instruction. Under calculation provided a better evaluation student’s enrollment prior to graduation § 600.56(a)(1)(ii), foreign veterinary of an institution’s performance than that must not exceed 150 percent of the school programs provided inside the required under current regulations, and normal length of the program, the United States must be approved by all had the benefit of being comparable to proposed regulations refer to existing veterinary licensing boards and rates published for domestic schools. §§ 668.16(e)(2)(ii)(B), (C), and (D). These evaluating bodies that the Secretary The non-Federal negotiators raised regulations, currently applicable to considers to be relevant. Under strong concerns about the pass rate’s undergraduate programs, provide § 600.56(a)(3), the credentials of faculty applicability to schools with small additional requirements as to the members employed by the foreign numbers of U.S. students. They pointed quantitative aspect of a foreign graduate veterinary school must be equivalent to out that such a school’s eligibility for medical school’s institutional the credentials of faculty members

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teaching the same or similar courses in detailed and specific, and the AVMA veterinary schools often have State the United States. has the expertise and resources to sources of funding for research Proposed Regulations: The proposed evaluate veterinary schools that the programs, while for-profit veterinary regulations would combine the Department lacks. In addition, the schools do not. The expense of requirements in § 600.56(a)(1)(i) and AVMA has a history of accrediting establishing a research program § 600.56(a)(1)(ii) into one paragraph, foreign veterinary school academics. For acceptable to AVMA could be eliminating the distinction in those example, veterinary schools in Canada, prohibitive for most for-profit veterinary sections between portions of veterinary Australia, and the Netherlands are schools. These non-Federal negotiators programs provided inside and outside of currently accredited by the AVMA. contended that, for purposes of the United States. Proposed Non-Federal negotiators generally preparing students for employment as § 600.56(a)(4) would require a foreign acknowledged the high quality of the competent veterinarians in most non- veterinary school to be accredited or AVMA’s accreditation standards and research venues, it is not necessary to provisionally accredited by an procedures. One non-Federal negotiator include a research component of the organization acceptable to the Secretary. agreed that it was logical to require kind required by AVMA. Proposed § 600.56(a)(4) would also AVMA accreditation of foreign In addition, non-Federal negotiators specify that the requirement for veterinary schools, as most U.S. expressed concerns that foreign accreditation or provisional students studying at those schools veterinary schools without AVMA accreditation does not take effect until ultimately practice as veterinarians in accreditation that currently participate July 1, 2015. Finally, proposed the United States. However, several in the Title IV, HEA programs might be § 600.56(b)(2)(i) would require that, for non-Federal negotiators had concerns forced out of the Title IV, HEA programs a for-profit veterinary school, the about requiring AVMA accreditation as if the Department went forward with its school’s students must complete their a condition for participation in the Title proposal. The effective date for most of clinical training at an approved IV, HEA programs. the regulations in this NPRM is veterinary school located in the United Some non-Federal negotiators pointed expected to be July 1, 2011. As the States. Under proposed out that the process for receiving AVMA accreditation process can take several § 600.56(b)(2)(ii), for a veterinary school accreditation is lengthy and expensive. years, even a school that ultimately that is public or private nonprofit, the Non-Federal negotiators asserted that receives AVMA accreditation might not school’s students may complete their the standards of foreign accrediting be able to obtain AVMA accreditation clinical training at an approved agencies such as the Veterinary Schools before the regulations become effective. veterinary school located in the United Accreditation Advisory Committee Although AVMA offers provisional States or in the home country, and may (VSAAC), which accredits veterinary accreditation for schools in the U.S. or also take clinical training at a location schools in Australia and New Zealand, Canada that are on track to become outside of the United States or the home and the Royal College of Veterinary accredited, it currently does not offer country if no individual student takes Surgeons (RCVS), which accredits provisional accreditation to other more than two electives at the location veterinary schools in the United schools. and the combined length of the Kingdom, are comparable to the As an alternative, non-Federal elective(s) does not exceed eight weeks. AVMA’s standards. These non-Federal negotiators recommended using other Reasons: The Department proposed negotiators contended that it would be measures, such as pass rates on revising the regulations governing unnecessarily burdensome to require a licensing exams, licensure rates, or eligibility criteria for foreign veterinary veterinary school that has already been default rates, to determine eligibility of schools to improve the Department’s accredited by an agency such as VSAAC a foreign veterinary school. In addition, process for making determinations of to also obtain AVMA accreditation to non-Federal negotiators recommended eligibility of foreign veterinary schools participate in the Title IV, HEA that the Department delay the effective to participate in the Title IV, HEA programs. The non-Federal negotiators date for the accreditation provision of programs. The Department’s expertise cautioned the Department that foreign the proposed regulations for up to ten with regard to making independent veterinary schools that enroll small years, if the Department goes forward evaluations of the academic quality of numbers of Title IV borrowers may with the AVMA requirement. veterinary programs is limited, and determine that obtaining AVMA The Department noted that using currently the Department relies heavily accreditation is not cost effective, and measures such as pass rates on licensing on information provided to us by the may choose to end their participation in examinations can be operationally foreign veterinary school to make the Title IV, HEA programs. This would complicated, raising concerns over eligibility determinations. If the school have the effect of limiting the options of privacy rights, obtaining exam results, has been accredited or reviewed by the U.S. students considering attending and calculating pass rates in ways that American Veterinary Medical foreign veterinary schools. are not disadvantageous to schools with Association (AVMA), the Department Other non-Federal negotiators low numbers of Title IV students. In considers reports provided by the contended that it is extremely difficult addition, pass rates would not AVMA to the school to assist in making for for-profit veterinary schools to necessarily be a reliable indicator of the eligibility determinations. obtain AVMA accreditation. Although academic credentials of the faculty at a The Department initially proposed to they felt that for-profit veterinary foreign veterinary school, and would build on the Department’s current schools can meet AVMA’s standards provide no indication that the facilities practice by requiring AVMA around facilities, curriculum, and at the veterinary school are adequate accreditation for foreign veterinary faculty, the AVMA standards also and safe for the students or for the schools applying to participate in the require veterinary schools to have a animals housed in the facilities. Title IV, HEA programs. We believed strong research component. These Instead, the Department accepted the that requiring AVMA accreditation negotiators stated that for-profit recommendation of some of the non- would provide the Department with an veterinary schools tend not to have the Federal negotiators to replace the assurance of the academic quality of the resources to pursue research to the proposed requirement that a foreign veterinary program. AVMA standards extent required by AVMA. These veterinary school be accredited or for accrediting veterinary schools are negotiators pointed out that public provisionally accredited by the AVMA,

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with a requirement that the school be of the United States and of the country Nurses (NCLEX–RN) in the year accredited or provisionally accredited in which the main campus of the school preceding the year for which the school by an agency acceptable to the is located. Proposed § 600.57(b) would is certifying a Title IV, HEA program Secretary. Although the Department permit students who attend a public or loan, received a passing score on the continues to believe that AVMA private nonprofit foreign veterinary NCLEX–RN. accreditation is the most desirable school to take no more than two Current Regulations: Current standard for foreign schools that train electives at the clinical training location regulations do not define foreign students for veterinary practice in the per student, as long as the elective(s) nursing school, or specify Title IV United States, we recognize that other have a combined length of not more eligibility criteria unique to foreign accrediting agencies may also be than eight weeks. This provision could nursing schools. satisfactory for this purpose. Under the not be extended to for-profit veterinary Proposed Regulations: The proposed revised regulations, foreign veterinary schools because the statute requires regulations would add several new schools must still be accredited or students who attend these schools to definitions relating to foreign nursing provisionally accredited by an agency complete their clinical training in the schools to § 600.52, would redesignate with expertise in accrediting veterinary United States. current § 600.57 as § 600.58, and would education programs, but the agency add a new § 600.57 specifying Foreign Nursing Schools (§ 600.57) does not have to be the AVMA. This additional Title IV eligibility criteria for gives the Department some flexibility in Statute: The HEOA amended section foreign nursing schools. The proposed evaluating schools’ compliance with the 102(a)(2)(A) of the HEA to provide regulations would add definitions to accreditation requirement, and gives specific standards for foreign nursing § 600.52 for associate degree school of schools some flexibility with regard to schools. The amendments are effective nursing, collegiate school of nursing, obtaining accreditation. beginning July 1, 2010, except that, for and diploma school of nursing. The In addition, the Department delayed nursing schools that were eligible for proposed new definitions are derived the effective date of the accreditation Title IV, HEA program participation on from definitions relating to nursing requirement until July 1, 2015, giving August 13, 2008 (the day before schools in section 801 of the Public foreign veterinary schools that are enactment of the HEOA), they are Health Service Act, as amended (42 currently in the Title IV, HEA programs effective July 1, 2012. U.S.C. 201 et seq.), as required by the approximately five years after final The HEA, as amended by the HEOA HEA as amended by the HEOA. regulations are published to obtain and HCERA, provides that a foreign Under the proposed definitions, the accreditation from an acceptable nursing school, including a for-profit primary distinction between the three accrediting agency. The Department nursing school, may not participate in types of nursing schools is the type of believes that five years should be the Title IV, HEA programs unless the degree offered by the school. For an sufficient time for a school to obtain school— associate degree school of nursing, the accreditation or provisional • Has an agreement with a hospital or nursing program must lead to a degree accreditation from an acceptable accredited school of nursing (as those equivalent to an associate degree in the accrediting agency. In addition, Title IV terms are defined in section 801 of the U.S. For a collegiate school of nursing, borrowers who are currently enrolled in Public Health Service Act (42 United the nursing program must lead to a a foreign veterinary school should be States Code 296)) located in the United degree equivalent to a bachelor of arts, able to complete their education States that requires the students of the a bachelor of science, or a bachelor of programs before the five years elapses. nursing school to complete the students’ nursing in the U.S, or to a degree Newly enrolled Title IV borrowers clinical training at the hospital or equivalent to a graduate degree in coming into those schools after this accredited school of nursing; nursing in the U.S. For a diploma school NPRM is published should be advised • Has an agreement with an of nursing, the nursing program must by the school’s financial aid officers that accredited school of nursing located in lead to the equivalent of a diploma in there is a possibility that the school the United States providing that the the U.S. or to other indicators could lose Title IV, HEA program students graduating from the foreign equivalent to a diploma that eligibility after July 1, 2015, so those nursing school also receive a degree demonstrate that the student has borrowers can plan accordingly. from the accredited U.S. school of satisfactorily completed the program. The Department proposed combining nursing; Proposed new § 600.57 would require the requirements in § 600.56(a)(1)(i) and • Certifies only Federal Direct a foreign nursing school to meet the in § 600.56(a)(1)(ii) into one paragraph Stafford loans under section applicable eligibility criteria elsewhere to simplify the regulations, and to 455(a)(2)(A) of the HEA, Federal Direct in part 600. In addition, a foreign eliminate the distinction between Unsubsidized loans under section nursing school must— veterinary school activities in the 455(a)(2)(D) of the HEA, or Federal • Meet the definition of associate United States and outside the United Direct PLUS loans under section degree school of nursing, collegiate States for purposes of these particular 455(a)(2)(B) of the HEA for students school of nursing, or diploma school of requirements. The Department did not attending the school; and nursing; believe that this distinction in the • Reimburses the Secretary for the • Have an agreement with a hospital current regulations served any useful cost of any loan defaults for current and located in the United States or an purpose. The non-Federal negotiators former students included in the accredited school of nursing located in did not express concerns about this calculation of the school’s cohort the United States that requires students modification to the existing regulations. default rate during the previous fiscal of the nursing school to complete the Regarding the provisions addressing year. student’s clinical training at the hospital the location of a foreign veterinary In addition, the HEOA amendments to or accredited school of nursing; school in proposed § 600.57(b), the the HEA require that at least 75 percent • Have an agreement with an Committee agreed to be consistent with of the individuals who were students or accredited school of nursing located in provisions that would permit some graduates of a foreign nursing school, the United States providing that clinical training locations of foreign and who took the National Council students graduating from the nursing graduate medical schools to be outside Licensure Examination for Registered school located outside of the United

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States also receive a degree from the • Have graduated classes during each several of the provisions unique to accredited school of nursing located in of the two twelve-month periods foreign nursing schools. the United States; immediately preceding the date the The non-Federal negotiators believed • Only certify Federal Stafford Loan Secretary receives the school’s request that the new requirements in program loans or Federal PLUS program for an eligibility determination; and §§ 600.57(a)(2) and 600.57(a)(3), loans for students attending the nursing • Employ only those faculty members requiring agreements between foreign school; whose academic credentials are the nursing schools and U.S nursing schools • Reimburse the Secretary for the cost equivalent of credentials required of and hospitals, would force many foreign of any loan defaults for current and faculty members teaching the same or nursing schools that currently former students included in the similar courses at nursing schools in the participate in the Title IV, HEA calculation of the institution’s cohort United States. programs out of the Title IV, HEA default rate during the previous fiscal In addition, the proposed regulations programs. The non-Federal negotiators year; stated that most foreign nursing schools • would specify that for purposes of Determine the consent requirements reimbursing the Secretary for defaulted do not currently have such agreements for, and require the necessary consents loans, the cost of a loan default is the and could not revamp their nursing of, all students accepted for admission sum of the defaulted loan’s— programs to provide clinical training in who are U.S. citizens, nationals, or • Outstanding principal; the U.S. for their Title IV students. This eligible permanent residents, to enable • Accrued interest; issue was of special concern with regard the school to comply with the • Unpaid late fees and collection to foreign nursing schools that enroll requirements for collection and costs; relatively small numbers of Title IV submission of NCLEX–RN results or • Special allowance payments; borrowers. The Title IV loan amounts pass rates; • Reinsurance payments; and such schools receive might not be • Annually, at its own expense, sufficient enough to justify the expense • Any related or similar payments the obtain all results on the NCLEX–RN of revamping their nursing programs. Secretary is obligated to make on the achieved by students and graduates who The Department noted that the are U.S. citizens, nationals, or eligible loan. proposed regulations reflect the statute, permanent residents, together with the The proposed regulations also would and that any regulations developed by dates the student has taken the specify that after a school reimburses the Department must be consistent with examination (including any failed the Secretary for the cost of a loan statutory requirements. examinations) and provide the results to default, the loan is assigned to the Non-Federal negotiators also had the Secretary; school. The borrower remains liable to concerns about the statutory provision, • As an alternative to obtaining the the school for the outstanding balance of reflected in proposed § 600.57(a)(5), NCLEX results individually, the school the loan, under the terms and requiring a foreign nursing school to may obtain a report or reports from the conditions specified in the promissory reimburse the Secretary for the cost of National Council of State Boards of note. loan defaults for loans included in the Nursing (NCSB), or an NCSB affiliate or Finally, proposed § 600.57(d) would calculation of a school’s cohort default NCSB contractor, reflecting the provide that no portion of the foreign rate. Discussion of the reimbursement percentage of the school’s students and nursing program offered to U.S. students requirement centered around two major graduates taking the NCLEX–RN in the may be located outside of the country in topics: the cost of a loan default and the preceding year who passed the which the main campus of the foreign status of the loan after the school examination, or the data from which the nursing school is located, except for reimburses the Secretary. Proposed percentage could be derived, and clinical sites located in the United §§ 600.57(b) and 600.57(c) address these provide the report to the Secretary; States. two issues. • Demonstrate at least a 75 percent Reasons: The Department modeled At the time that these proposed pass rate on the NCLEX–RN for all of the proposed language in new § 600.57 regulations were being negotiated, it the U.S. citizens, nationals, or eligible on the provisions in the HEOA was unclear whether foreign institutions permanent residents who were students regarding foreign nursing schools, as would continue to participate in the or graduates of the school and who took well as on language in existing FFEL program or be required to switch the NCLEX–RN in the year preceding §§ 600.55 and 600.56, which provide over to the Direct Loan Program. Given the year for which the institution is additional eligibility criteria for foreign this uncertainty, the Department drafted certifying Federal Stafford or Federal graduate medical schools and foreign proposed §§ 600.57(b) and 600.57(c) in Plus loans; veterinary schools. In addition, in an such a way that the regulations could • Provide a program of clinical and effort to alleviate some of the burden apply to either a FFEL loan or a Direct classroom nursing instruction, which entailed in demonstrating compliance Loan. students are normally required to with the NCLEX–RN pass rate The cost of a loan default, as specified complete, that is supervised closely by requirement, the Department provided in proposed § 600.57(b), includes some members of the school’s faculty. The leeway for the school to obtain and items that only apply to FFEL loans, program, which includes programs submit, if available, reports on NCLEX– such as special allowance payments, provided through agreements with RN results from the NCSB, or one of its reinsurance payments, and payments of nursing schools in the United States, affiliates or contractors, showing the other fees. For a Direct Loan, the must be provided in facilities percentage of students from the school calculation of cost of a loan default adequately equipped and staffed to who passed the NCLEX–RN. would not include such costs. The cost afford students comprehensive clinical In most cases, the non-Federal of loan default for a Direct Loan would and classroom nursing instruction, negotiators did not have concerns or include such items as outstanding through a training program for foreign questions regarding the proposed principal, accrued interest, and unpaid nursing students that has been approved language in § 600.57 that was modeled late fees or collection costs. by all nurse licensing boards and on language in sections §§ 600.55 and Proposed § 600.57(c) would specify evaluating bodies whose views are 600.56. However, non-Federal that after a school reimburses the considered relevant by the Secretary; negotiators did have concerns relating to Secretary for the cost of a loan default,

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the loan would be assigned to the foreign school’s faculty, in light of the Part 668 Student Assistance General school. The borrower would be required fact that that training would already be Provisions Audited Financial to repay the loan to the school, under supervised by faculty of the U.S. school. Statements (§ 668.23) the terms and conditions of the The Department noted that faculty at the Statute: Section 487(c)(1)(A)(i) of the promissory note. The reimbursement by U.S. clinical training facility could be HEA was amended by the HEOA to give the school would not change the appointed as faculty of the foreign the Secretary the authority to modify the school’s official cohort default rate or school as well, and that, in any event, exempt the school from the financial and compliance audit the foreign graduate medical school requirements for foreign institutions, consequences of its cohort default rate. needs to have its own faculty supervise In the initial discussions with the and the authority to waive the audit its entire program. The Department non-Federal negotiators, the non- requirements for foreign institutions Federal negotiators emphasized the emphasized that Title IV eligibility is that receive less than $500,000 in Title importance of borrowers remaining based on a school offering an eligible IV, HEA program funds in the preceding liable for repayment of the loan after the program, not a portion of an eligible year. school has reimbursed the Department program. The foreign school would have Current Regulations: Currently, under for the loan default. The non-Federal to develop agreements with U.S. schools § 668.23(a)(2), an annual submission of negotiators stressed that if the that ensure continuity between the both a compliance audit and audited reimbursement is deemed to have paid training offered at the foreign school financial statements is required of all off the loan, the borrower’s obligation to and at the U.S. school. institutions participating in the Title IV, repay the loan would effectively be Non-Federal negotiators also HEA programs. Section 668.23(d)(1) discharged. This would provide a questioned the provision in requires that an institution’s audited perverse incentive for borrowers to § 600.57(a)(8) requiring a training financial statements must be prepared default deliberately on their Title IV program to be approved ‘‘by all licensing on an accrual basis in accordance with loans. boards and evaluating bodies whose U.S. generally accepted accounting The Department agreed with the non- views are considered relevant by the principles (U.S. GAAP), and audited by Federal negotiators. Initially we an independent auditor in accordance proposed that after the Secretary is Secretary.’’ Non-Federal negotiators asked how a nursing program could be with U.S. generally accepted reimbursed, the loan would remain with government auditing standards (U.S. the loan holder, who would continue to expected to obtain approval from state licensing boards in all 50 states. The GAGAS) and other guidance contained collect on the loan. However, the in the Office of Management and Budget Department responded that the Department determined that after it Circular A–133 and A–128 regarding Department would focus on the received the reimbursement payment, it audits of States, Local Government and licensing boards and evaluating bodies would have no financial interest in the Non-Profit Organizations, or in audit loan, and would have no statutory basis applicable to the state where the guides developed by, and available for collecting on the loan. Accordingly, training program is located, not from, the Department of Education’s the Department modified the proposed licensing boards and evaluating bodies Office of Inspector General, whichever regulatory language to require that the for all of the states, in determining is applicable. Section 668.15(h) permits loan to be assigned to the school. compliance with this eligibility a foreign institution whose enrolled Although non-Federal negotiators requirement, although approval or students received less than $500,000 in supported borrowers remaining liable disapproval decisions from other states U.S. FFEL Program funds per fiscal year for the loan, some non-Federal would be considered if available. negotiators had concerns about how to have its required audited financial assigning the loan to the school would Proposed § 600.57(d) would provide statements prepared according to the affect the borrower. One non-Federal that no portion of the foreign nursing generally accepted accounting negotiator asked how NSLDS reporting, program offered to U.S. students may be principles and auditing standards of the loan rehabilitation, and total and located outside of the country in which institution’s home country. Current permanent disability discharges would the main campus of the foreign nursing regulations notwithstanding, on May 15, be handled for these loans. school is located, except for clinical 2009, the Department of Education The Department did not address in sites located in the United States, to published a Dear Colleague Letter detail operational matters with regard to protect the coherence of the educational (GEN–09–06) that announced that the Secretary was waiving the annual defaulted loans assigned to a school. program and ensure continuity of audited financial statements Instead, the Department pointed out that oversight by the foreign government. requirement for foreign institutions currently a FFEL loan can fall out of the The statute requires these nursing FFEL program, usually due to a due whose enrolled students received less programs to provide their clinical than $500,000 in U.S. FFEL Program diligence failure. The terms and training in the United States. conditions on the promissory note funds during the award year preceding remain in effect on these loans, and loan As negotiated, proposed § 600.57(d) the audit period. The waiver applies to holders continue to collect on them. does not reflect the inapplicability, any audited financial statements for Procedures currently in place for FFEL through June 30, 2012, to foreign such a foreign institution due on or after loans that have lost their eligibility nursing schools that were participating August 14, 2008, the effective date of would apply to defaulted Title IV loans in a Title IV, HEA program as of August the HEOA amendment described that are assigned to a foreign nursing 13, 2008, of the HEOA’s new eligibility previously, and renders unnecessary school. requirements for foreign nursing § 668.15(h), providing for submission of Non-Federal negotiators questioned schools. In the final regulations, the audits prepared under home country how foreign schools could comply with Department will specify that this section standards. proposed § 600.57(a)(8), which would becomes effective on July 1, 2012, with Proposed Regulations: Proposed require that the clinical training respect to foreign nursing schools that § 668.23 would establish new financial provided at a U.S. school or hospital be were participating in a Title IV, HEA audit submission requirements for ‘‘supervised closely’’ by members of the program as of August 13, 2008. foreign institutions as follows:

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• For a public or nonprofit foreign financial statements in the manner Title IV, HEA program funds, as well as institution that received less than specified by the Secretary. for any institution in its initial $500,000 in U.S. Title IV, HEA program In addition, the proposed regulations provisional period of participation. For funds during the institution’s most would: (1) Remove the superseded public foreign institutions, if an recently completed fiscal year, the language in § 668.15 addressing institution received at least $500,000 in audited financial statements submission submission of financial audits for U.S. Title IV, HEA program funds, but would be waived, unless the institution foreign institutions; (2) make technical less than $1,000,000 in U.S. Title IV, is in its initial provisional period of corrections to reflect the Office of HEA program funds during the participation and received Title IV, HEA Management and Budget’s (OMB’s) 2003 institution’s fiscal year preceding the program funds during that year, in rescission of Circular A–128 and audit period, the institution would have which case the institution must submit, expansion of Circular A–133 to include been allowed to submit audited in English, audited financial statements State and local governments and (3) add financial statements prepared in ‘‘ prepared in accordance with the issued by the Comptroller General of accordance with the generally accepted the United States’’ to § 668.23(d)(1) to generally accepted accounting accounting principles of the make clear that United States generally principles of the institution’s home institution’s home country in lieu of accepted government auditing standards country. financial statements prepared in • For a public or nonprofit foreign must be used for all submitted financial institution that received at least statements, including those from foreign accordance with U.S. GAAP. If there $500,000 but less than $3,000,000 in institutions. The removal of the was an unpaid liability due to the U.S. Title IV, HEA program funds superseded language in § 668.15(h) Secretary by any public institution during its most recently completed would not impact the Secretary’s ability controlled by the same government fiscal year, the institution would be to make a determination of financial entity, all public institutions controlled allowed to submit for that year, in responsibility for any foreign by that government entity would be English, audited financial statements institution. The Secretary would make required to submit audited financial prepared in accordance with the such a determination on the basis of statements prepared in accordance with generally accepted accounting financial statements submitted under U.S. GAAP. principles of the institution’s home proposed § 668.23(h). Upon hearing the Department’s initial country in lieu of financial statements These proposed regulations would proposal, some non-Federal negotiators prepared in accordance with U.S. supersede the May 15, 2009, Dear argued that nonprofit foreign GAAP. Colleague Letter (GEN–09–06). The institutions should be treated the same • For a public or nonprofit foreign proposed regulations would apply the as public foreign institutions. Others institution that received at least waiver of the annual audited financial opined that requiring the audited $3,000,000 but less than $5,000,000 in statements requirement to public or financial statements to be prepared in U.S. Title IV, HEA program funds nonprofit foreign institution that accordance with U.S. GAAP was cost during its most recently completed received less than $500,000 in U.S. Title prohibitive, and suggested that a non- fiscal year, the institution would be IV, HEA program funds during the U.S. GAAP financial statement such as required to submit once every three institution’s most recently completed the International Financial Reporting years audited financial statements fiscal year, instead of applying it to Standards (IFRS) would be comparable prepared in accordance with the foreign institutions that received less and provide the Department with the generally accepted accounting than $500,000 in U.S. Title IV, HEA information it needs. Another non- principles of both the institution’s home Program funds during the award year Federal negotiator suggested that the country and U.S. GAAP, but for the two preceding the audit period, as the Dear cost of preparing audited financial years in between would be allowed to Colleague Letter does. This would statements would be paid by students in submit, in English, audited financial match the Title IV, HEA program funds the form of higher tuition and fees. It statements prepared in accordance with being administered by a foreign the generally accepted accounting institution with the period of time was also suggested that a rating from a principles of the institution’s home covered in the audited financial financial rating agency such as Moody’s country in lieu of financial statements statements of the institution. If this or Standard and Poor’s could be used as prepared in accordance with U.S. proposed provision becomes final, the an indicator of financial solvency. GAAP. Department will provide Several non-Federal negotiators • For a public or nonprofit foreign implementation guidance to institutions suggested that the Department should institution that received $5,000,000 or addressing the change in the period accept audited financial statements more in U.S. Title IV, HEA program used to determine the amount of Title prepared under the institution’s home funds during its most recently IV, HEA program funds received by a country accounting standards from completed fiscal year, and for any for- foreign institution. nonprofit or public foreign institutions profit foreign institution, the institution Reasons: The negotiators reached where the Department determined those would be required to submit for that agreement on the proposed regulatory home country standards were year audited financial statements language only after extensive comparable to U.S. GAAP, regardless of prepared in accordance with the negotiations and significant the amount of U.S Title IV, HEA generally accepted accounting compromises. program funds that an institution may principles of both the institution’s home The Department initially proposed to have received in the fiscal year country and U.S. GAAP. require audited financial statements preceding the audit. Non-Federal Proposed § 668.23(h)(3)(i) would prepared in accordance with U.S. negotiators pointed out that no evidence allow the Secretary to issue a letter to GAAP, which is the requirement for had been presented during the a foreign institution that has been domestic institutions, for public foreign negotiating sessions that international identified as having problems with its institutions that received $1,000,000 or accounting principles are inferior to financial condition or financial more in U.S. Title IV, HEA program U.S. GAAP, and noted that an reporting that would require the foreign funds, or private foreign institutions institution’s compliance audit would institution to submit its audited that received $500,000 or more in U.S. continue to be used to demonstrate that

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Title IV, HEA program funds are being $1,000,000 to $3,000,000 in U.S. Title that receive less than $500,000 in Title handled appropriately. IV, HEA program funds. IV, HEA program funds in the preceding Other suggestions made by the non- The Department also clarified that a year. Federal negotiators included that the foreign institution required to submit Current Regulations: Section Department tie its requirement of U.S. audited financial statements prepared in 668.23(a)(2) of the current regulations GAAP financial statements to a foreign accordance with U.S. GAAP would be requires an annual submission of both a institution’s cohort default rate, given required also to submit a copy of the compliance audit and audited financial that such rates are generally lower than institution’s audited financial statements from all institutions those for domestic institutions, and that statements that were prepared under the participating in the Title IV, HEA public foreign institutions be relieved institution’s home country accounting programs. from submitting U.S. GAAP financial standards for the same period. By doing Sections 668.23(b)(1) and (2) require statements if the total number of U.S. so, the Department would be able to that an institution’s compliance audit students enrolled at that entity was less perform a comparative analysis between must cover, on a fiscal year basis, all than fifty, regardless of the amount of both sets of financial statements to Title IV, HEA program transactions, and U.S. Title IV, HEA program funds determine if the requirement to provide must cover all of those transactions that received during the institution’s fiscal U.S. GAAP financial statements could have occurred since the period covered year. be changed in the future. by the institution’s last compliance Upon hearing the revised regulatory audit. They also require that the The Department responded that it proposals, several non-Federal compliance audit under this section be believes there is a risk threshold of Title negotiators suggested that, in lieu of a conducted in accordance with the IV, HEA program dollars administered required annual submission of any general standards for compliance audits by foreign institutions where the audited financial statements, the contained in the U.S. GAO Government audited financial statements for those Department could simply rely on Auditing Standards and procedures for institutions should be provided in the applying the exception provided to the audits contained in audit guides same format and at the level of testing Secretary under § 668.23(h)(3)(i) and developed by the Department of required from domestic institutions. require an institution to submit audited Education’s Office of Inspector General. These submissions would be reviewed financial statements on only an ‘‘as The Inspector General’s current on an equal footing with domestic needed’’ basis. Some non-Federal Foreign School Audit Guide, as institutions, and allow the Department negotiators suggested raising the amended, includes an Alternative to evaluate efficiently and effectively threshold to as much as $10,000,000 in Compliance Engagement that may be the financial condition of those U.S. Title IV, HEA program funds. used for foreign institutions whose institutions. The Department explained Others suggested that a threshold enrolled students received less than the that financial statements prepared under should be based on a percentage of U.S. $500,000 threshold in U.S. Title IV, U.S. GAAP provide Department staff Title IV, HEA program funds received HEA program funds. with detailed information about the against the total student generated Proposed Regulations: The proposed financial condition and operation of an revenues by an institution. regulations would separate foreign institution. The additional information The Department responded to these institutions into two groups, comes from the analysis of the audited concerns with a final modification for establishing new compliance audit financial statements, the accompanying public and nonprofit institutions that requirements for foreign institutions audit opinion letters and related receive at least $3,000,000 but less than based upon whether the institution disclosures, and items in the footnote $5,000,000 in U.S. Title IV, HEA received less than $500,000 or $500,000 disclosures. Although the Department program funds annually. The or more in U.S. Title IV, HEA program explored the use of IFRS as an Department was unwilling to accept funds during the institution’s most alternative to U.S. GAAP, the only audited financial statements recently completed fiscal year. Department believes it is premature to prepared in the home country standards Under proposed § 668.23(h)(2)(ii) and consider doing so now because the on an ongoing basis for these (iii), foreign institutions that receive less adoption of IFRS by the U.S. and other institutions due to the unknown than $500,000 per year in U.S. Title IV, countries is proceeding slowly and comparability of these submissions to HEA program funds would be required inconsistently within the different audited financial statements prepared to submit compliance audits under an countries. under U.S. GAAP. However, the alternative compliance audit performed After consideration of the feedback Department proposed having these in accordance with the audit guide from from the non-Federal negotiators, the institutions submit U.S. GAAP financial the Department’s Office of Inspector Department agreed to treat nonprofit statements once every three years, rather General. The proposed regulations and public foreign institutions alike, than every year, which would allow the would require an annual submission of and removed the requirement that an Department to achieve the appropriate the compliance audit, except that, under unpaid liability due to the Secretary by level of monitoring while providing certain conditions as described in the related public institutions would some burden relief to these institutions. following paragraphs, an institution require the submission of audited This proposal was discussed in detail, would submit a compliance audit financial statements prepared in and consensus was reached on this annually for two consecutive years, accordance with U.S. GAAP. In order to issue. then, once notified by the Secretary, reach a compromise with the non- would be permitted to submit a Federal negotiators, the Department Compliance Audits (§ 668.23) cumulative compliance audit every agreed to raise the threshold for Statute: Section 487(c)(1)(A)(i) of the three years thereafter. nonprofit and public foreign institutions HEA was amended by the HEOA to give In order to submit a cumulative that would be allowed to submit audited the Secretary the authority to modify the compliance audit once every three years financial statements prepared in financial and compliance audit instead of annually, a foreign institution accordance with the generally accepted requirements for foreign institutions, would be required to have received less accounting principles of the and the authority to waive the audit than $500,000 U.S. in U.S. Title IV, HEA institution’s home country from requirements for foreign institutions program funds for its most recently

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completed fiscal year, be fully certified, must be covered. For institutions that financially responsible if the have timely submitted and had accepted are permitted to submit one compliance institution— compliance audits for two consecutive audit every three years, this requirement • Notifies the Secretary that it is fiscal years, and have no history of late ensures that the compliance audit is designated as a public institution by the submissions since then. cumulative. Also, when an institution is State, local, or municipal government Under an alternative compliance required to submit a compliance audit, entity, tribal authority, or other audit, the auditor performs prescribed the compliance audit must be submitted government entity that has the legal procedures and reports the findings, no later than six months after the last authority to make that designation; and but, unlike a standard compliance audit, day of the institution’s preceding fiscal • Provides a letter from an official of is not required to express an opinion of year. that State or other government entity the reliability of the institution’s Reasons: The Department believes confirming that the institution is a assertions concerning the institution’s that by allowing foreign institutions that public institution. In addition, the compliance with the requirements. The receive $500,000 or less in U.S. Title IV, institution may not be in violation of alternative compliance audit is HEA program funds per year to make any past performance requirement. performed as an agreed-upon less frequent audit submissions, the Proposed Regulations: The proposed procedures attestation engagement, and proposed regulations would provide a regulations would permit a foreign public institution to meet the financial the standard compliance audit is basis to establish a streamlined set of responsibility requirements in a manner performed as an examination-level compliance audit requirements that similar to domestic public institutions. attestation engagement. An alternative would provide flexibility and cost That is, the Secretary would consider a compliance audit is an agreed-upon benefits to a large number of relatively public foreign institution to be procedures attestation engagement, small foreign institutions and would financially responsible if the institution: which consists of specific procedures reduce the reporting burden for the (1) Notifies the Secretary that it is performed on a subject matter and is majority of foreign institutions that designated as a public institution by the substantially narrower in scope than a currently participate in the Title IV, country or other government entity that standard compliance audit, which is an HEA programs. examination-level attestation has the legal authority to make that The proposed regulations would also engagement. designation; and (2) provides Under proposed § 668.23(h)(2)(i), allow the Department to concentrate its documentation from an official of that foreign institutions that receive resources on reviewing compliance country or other government entity $500,000 or more per year in U.S. Title audits from larger volume institutions confirming that the institution is a IV, HEA program funds, as in the and institutions that have demonstrated public institution and is backed by the current regulations, would be required Title IV, HEA program problems, which full faith and credit of the country or to submit annual compliance audits represent the Department’s greatest other government entity. As with using the standard audit procedures for financial risk. It would also be more domestic public institutions, a foreign foreign institutions set out in the audit efficient to review the cumulative audit public institution would not meet this guide issued by the Office of Inspector submissions from lower-volume foreign standard of financial responsibility if it General. institutions. Approximately 75% of the was in violation of any past When an institution submits a foreign institutions that participate in performance requirement. standard compliance audit because it the Title IV, HEA programs are in this If a foreign public institution did not received more than $500,000 in U.S. lower-volume group, and these meet the new requirements, its financial Title IV, HEA program funds in its institutions account for less than 7.5% responsibility would be determined previous year, the institution must also of total Title IV, HEA program funds under the general requirements of submit any alternative compliance audit received by foreign institutions. Where financial responsibility, including the or audits for preceding years that were problems are identified with a foreign application of the equity, primary prepared in accordance with proposed institution, § 668.23(h)(3)(ii) of the reserve, and net income ratios. Although § 668.23(h)(2)(ii) for any preceding fiscal proposed regulations provides that the the full faith and credit provision would year or years in which the foreign Secretary may require the compliance provide an alternate way of meeting the institution received less than $500,000 audit to be performed at a higher level financial responsibility standards for in U.S. Title IV, HEA program funds. of engagement and may require the public foreign institutions, it would not Section 668.23(h)(3)(ii) of the compliance audit to be submitted excuse the institution from required proposed regulations would provide the annually. submissions of audited financial Secretary with the authority to require Public Foreign Institutions and statements (see the discussion under that a foreign institution’s compliance Financial Responsibility (§ 668.171) Audited Financial Statements above). If audit must be performed at a higher a government entity provided full faith level of engagement, and/or require that Statute: Section 487(c)(1)(B) of the and credit backing, the entity would be a compliance audit must be submitted HEA provides that the Secretary shall held liable for any Title IV, HEA to the Secretary annually, if the prescribe regulations, as necessary, to program liabilities that were not paid by institution has been notified by the provide for the establishment of the institution. Secretary about problems with its reasonable standards of financial Reasons: Current § 668.171(c) is not administrative capability or compliance responsibility for institutions that addressed to foreign institutions. reporting. participate in the Title IV, HEA Therefore, the proposed regulations Section 668.23(h)(2) of the proposed programs. Section 102(a)(2)(A) of the would establish a financial regulations would make clear that, as HEA provides that the Secretary shall responsibility standard for public under current regulations, a foreign prescribe regulations for determining foreign institutions that is comparable to institution’s compliance audit must be the comparability of foreign institutions public domestic institutions that done on a fiscal year basis, and all Title to Title IV ‘‘institutions of higher participate in the Title IV, HEA IV, HEA program transactions that have education.’’ programs. Although the Department has occurred since the period covered by Current Regulations: Section not identified specific countries that the institution’s last compliance audit 668.171(c) provides that an institution is would be willing to provide the

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proposed full faith and credit backing, training programs for foreign veterinary eligible programs for which the and one non-Federal negotiator reported schools, provisions for participation by institution is authorized to award the that a particular country with several for-profit foreign nursing schools, and equivalent of an associate, public institutions that participate in eligibility restrictions applicable to for- baccalaureate, graduate, or professional the Title IV, HEA programs did not profit (and, later, all) foreign nursing degree in the United States; or a two- think that it would be willing to provide schools. A brief description of the year program acceptable for full credit such backing, the Committee agreed that proposed rules, the reasons for adopting towards the equivalent of a it was a good idea to make this them, and an analysis of their effects is baccalaureate degree awarded in the alternative available. presented in the following sections of United States; or a program equivalent this NPRM: to a one-academic year training program Executive Order 12866 Definition of a Foreign Institution that leads to a certificate, degree, or Regulatory Impact Analysis (§§ 600.51, 600.52, 600.54, 682.200, other credential and prepares a student 682.611): Section 102(a)(2)(A) of the Under Executive Order 12866, the for gainful employment in a recognized HEA requires the Secretary to establish Secretary must determine whether the occupation. regulatory criteria for the approval of regulatory action is ‘‘significant’’ and The proposed regulations would foreign institutions and for the therefore subject to the requirements of consolidate the definitions and determination that they are comparable the Executive Order and subject to requirements related to the eligibility of to an institution of higher education review by the OMB. Section 3(f) of foreign institutions to apply for Title IV, within the United States. Proposed HEA program eligibility in subpart E of Executive Order 12866 defines a §§ 600.52 and 600.54 would include a ‘‘ ’’ 34 CFR 600. As is the current practice, significant regulatory action as an more detailed definition of foreign foreign institutions would be required to action likely to result in a rule that may institution to ensure that a foreign comply with all other requirements for (1) have an annual effect on the institution is comparable to institutions eligible and participating institutions economy of $100 million or more, or in the United States, in accordance with except to the extent the provisions are adversely affect a sector of the economy, HEA section 102(a)(1)(C), before inconsistent with the HEA, 34 part CFR productivity, competition, jobs, the allowing a foreign institution to 600, or other regulatory provisions environment, public health or safety, or participate in the Title IV, HEA specific to foreign institutions. Proposed State, local, or tribal governments or programs. The Department is concerned § 600.51(c) would also exempt foreign communities in a material way (also that a foreign institution that is not referred to as an ‘‘economically comparable to a domestic institution, institutions from requirements that the significant’’ rule); (2) create serious especially in terms of the quality of its Secretary identifies through a notice in inconsistency or otherwise interfere educational programs, may misuse the Federal Register. The proposed with an action taken or planned by Federal funds to the detriment of its regulations would amend § 600.52 to another agency; (3) materially alter the students who may have to borrow include a detailed definition of foreign budgetary impacts of entitlement grants, heavily in order to attend the foreign institution. Under the definition user fees, or loan programs or the rights institution. The proposed regulations proposed, foreign institution would and obligations of recipients thereof; or also more fully implement the scheme mean, for the purposes of students who (4) raise novel legal or policy issues of the HEA, which distinguishes receive Title IV, HEA program aid, an arising out of legal mandates, the between foreign and domestic institution that is not located in a State; President’s priorities, or the principles institutions and includes provisions has no U.S. locations except with set forth in the Executive order. unique to each. For example, these respect to clinical training for foreign Pursuant to the terms of the Executive regulations would prevent a domestic graduate medical, veterinary, and Order, it has been determined this institution from claiming to be a foreign nursing schools; has no written proposed regulatory action would not institution by virtue of the fact that it agreements with institutions or have an annual effect on the economy has established an offshore location, organizations located in the United of more than $100 million. Therefore, thereby avoiding the requirements States for students to take a portion of this action is not ‘‘economically applied to domestic institutions such as the program in the United States; does significant’’ and subject to OMB review recognized accreditation, but that sends not permit students to enroll in any under section 3(f)(1) of Executive Order its students to the United States for the course offered by the foreign institution 12866. Notwithstanding this majority of the required coursework. in the United States except for determination, the Secretary has As described in the preamble section independent research under very assessed the potential costs and benefits related to this provision, under current limited circumstances; is legally of this regulatory action and has regulations a foreign institution is authorized by an agency of its home determined that the benefits justify the eligible to participate if it is comparable country to provide an education costs. to an institution of higher education program beyond its secondary level; located in the United States; has been awards degrees that are officially Need for Federal Regulatory Action approved by the Secretary; does not recognized by the institution’s home These proposed regulations are offer its programs through any use of country; and, for a program designed to needed to implement provisions of the telecommunications, correspondence prepare a student for gainful HEA, as amended by the HEOA, course, or direct assessment program; is employment in a recognized particularly related to audit not located in a State as defined in occupation, provides a credential that requirements for foreign institutions, the § 600.2; admits as regular students only satisfies the education requirements in USMLE pass rate for foreign graduate those with a secondary school the institution’s home country for entry medical schools, clinical training credential or recognized equivalent; and into that occupation and satisfies the programs of foreign graduate medical is legally authorized by an appropriate educational requirements for entry into schools, eligibility criteria for foreign authority to provide an eligible program that occupation in the United States, graduate medical schools that have a beyond the secondary level in the including licensure. Proposed clinical training program approved by a country in which it is located. The § 600.54(a) clarifies that, with the State prior to January 1, 2008, clinical foreign institution must also provide exception of freestanding foreign

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graduate medical, veterinary, or nursing nonprofit organization in order to be application information, currently schools that may be for-profit, foreign eligible as a nonprofit institution for include any provisions specific to institutions must be public or private participation in the Title IV, HEA foreign graduate medical schools. nonprofit education institutions to be programs. Additionally, certain Foreign graduate medical schools eligible. countries may not have standards for generally must meet the criteria in Nonprofit Status for Foreign the determination of nonprofit status § 600.54 for determining a foreign Institutions (§ 600.2): As foreign that are comparable to those used in the institution’s eligibility (except the institutions must be public or private United States, and may not ensure that criterion that the institution be public or nonprofit institutions to participate in the institution’s net earnings do not private nonprofit), as well as the the Title IV, HEA programs, unless they benefit any private shareholder or additional criteria in § 600.55(a)(5). The are medical, veterinary, or nursing individual. Therefore, to make the additional criteria include the schools, the Department believes it is proposed regulations as comparable as following: (1) Providing and requiring necessary to delineate in regulations the possible to those applicable to domestic students to complete a program of requirements for demonstrating institutions, the Department proposed, clinical and classroom medical nonprofit status for foreign institutions. and the Committee agreed, that a instruction of not less than thirty-two Current section 600.2 defines a determination that an institution is months that is supervised closely by nonprofit institution as an institution nonprofit by an entity in the faculty and that is provided (a) outside that— institution’s foreign country would the United States in facilities adequately • Is owned and operated by one or qualify an institution as nonprofit only equipped and staffed to afford students more nonprofit corporations or if the determination is made by a comprehensive clinical and classroom associations, no parts of the net earnings recognized tax authority of the country, medical instruction, or (b) in the United of which benefits any private and the Secretary has recognized that shareholder or individual; States, through a training program for tax authority as one that can make a foreign medical students that has been • Is legally authorized to operate as a determination using criteria that are nonprofit organization by each State in approved by all medical licensing similar to those used by the U.S. IRS. boards and evaluating bodies whose which it is physically located; and The Secretary may recognize more than • views are considered relevant by the Is determined by the U.S. Internal one tax authority in a country. Secretary; (2) having graduated classes Revenue Service (IRS) to be an Information submitted by entities other during each of the two twelve-month organization to which contributions are than recognized tax authorities would periods immediately preceding the date tax-deductible in accordance with be taken into account by the the Secretary receives the school’s section 501(c)(3) of the Internal Revenue Department; however, this would be request for an eligibility determination; Code (26 U.S.C. 501(c)(3)). done as part of an individual (3) employing only those faculty Under proposed § 600.2, a new determination of the eligibility of an members whose academic credentials paragraph (2) of the definition of a institution. nonprofit institution would provide that Foreign Graduate Medical Schools are the equivalent of credentials if a recognized tax authority of a foreign (§§ 600.20, 600.21, 600.52, 600.55): As required of faculty members teaching institution’s home country is recognized discussed in the section of the preamble the same or similar courses at medical by the Secretary for purposes of making related to this provision, the proposed schools in the United States; and (4) determinations of an institution’s regulations reflect amendments made to being approved by an accrediting body nonprofit status for Title IV, HEA the sections 102(a)(2)(A) and (B) of the that is legally authorized to evaluate purposes, the Secretary would HEA by the HEOA and the requirement graduate medical schools in the country automatically accept that tax authority’s in 102(a)(2)(B)(iii)(IV)(aa) of the HEA where the school is located and whose determination of nonprofit educational that the regulations be based on the standards of accreditation have been status for any institution located in that recommendations of the 2009 NCFMEA evaluated by the advisory panel of country. If a recognized tax authority of report. The NCFMEA is a panel of medical experts established by the the institution’s home country is not medical experts that evaluates the Secretary and have been determined to recognized by the Secretary for purposes medical school accrediting agency be comparable to standards of of making determinations of an standards used in the country where accreditation applied to medical schools institution’s nonprofit status for Title medical education is provided to in the United States. In addition, current IV, HEA program purposes, a foreign determine comparability to the regulations provide that foreign institution would have to demonstrate standards of accreditation applied to graduate medical schools that do not to the satisfaction of the Secretary that medical schools in the United States. have a clinical training program that has it is a nonprofit educational institution. Current section 600.52 defines a been continuously approved by a State The proposed regulations would also foreign graduate medical school as a since January 1, 1992, must: (1) During make clear that a nonprofit foreign foreign institution that qualifies to be the academic year preceding the year for institution may not be owned by a for listed in, and is listed as a medical which any of the school’s students seeks profit entity, directly or indirectly. A school in, the most current edition of a FFEL program loan, have at least 60 foreign institution that did not meet this the World Directory of Medical Schools percent of those enrolled as full-time definition of a nonprofit foreign published by the World Health regular students in the school and at institution would not be eligible to Organization. The regulations do not least 60 percent of the school’s most participate in the Title IV, HEA define clinical training, the NCFMEA, or recent graduating class be persons who programs unless it was a medical, a post-baccalaureate/equivalent medical did not meet the citizenship and veterinary, or nursing school. degree. Neither section 600.20, which residency criteria contained in section The proposed regulations should addresses the application procedures for 484(a)(5) of the HEA, 20 U.S.C. increase comparability in the establishing, reestablishing, 1091(a)(5); and (2) for a foreign graduate determination of nonprofit status maintaining, or expanding institutional medical school outside of Canada, have between domestic and foreign eligibility and certification, nor at least 60 percent of the school’s institutions. A domestic institution § 600.21, which addresses when and students and graduates who took any must be determined by the IRS to be a how an institution must update step of the USMLE administered by the

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ECFMG (including the ECFMG English length of the electives does not exceed graduate medical school, removing the test) in the year preceding the year for eight weeks. requirement that a school qualify for which any of the school’s students seeks Proposed § 600.55(e)(1) would require listing in the World Directory of a FFEL program loan to have received a foreign graduate medical school to Medical Schools and clarifying that passing scores on the exams. have: (1) A formal affiliation agreement schools would have to meet all The proposed regulations would deal with any hospital or clinic at which all applicable criteria for foreign with location requirements for foreign or a portion of the school’s core clinical institution’s Title IV, HEA program medical education programs, affiliation training or required clinical rotations eligibility in part 600, not just the agreements, application and notification are provided; and (2) either a formal criteria in § 600.55. In its place, the procedures, accreditation, admission affiliation agreement or other written definition proposed would clarify that a criteria, collection and submission of arrangements with any hospital or clinic foreign graduate medical school can be data, citizenship and USMLE pass rate at which all or a portion of its clinical free-standing or a component of an percentages, maximum timeframes for rotations that are not required are eligible foreign institution. Current program completion, required provided, except for those locations that regulations require only clinical training documentation related to educational are not used regularly, but instead are and classroom instruction that is offered remediation a school provides as part of chosen by individual students who take outside of the United States to be a satisfactory academic progress policy, no more than two electives at the provided in facilities adequately and publication of the languages in location for no more than a combined equipped and staffed to afford students which instruction is offered. total of eight weeks. The proposed comprehensive clinical and classroom regulations would require these Proposed § 600.55(h) contains medical instruction, and require only affiliation agreements or other written regulations concerning the locations the clinical training and classroom arrangements to state how the following where a foreign graduate medical school instruction located in the United States will be addressed at each site: (1) can establish its program. No portion of to be approved by all medical licensing Maintenance of the school’s standards; the medical education program offered boards and evaluating bodies whose (2) appointment of faculty to the to United States students by a foreign views are considered relevant by the medical school staff; (3) design of the graduate medical school, other than the Secretary. Proposed § 600.55(a)(2) curriculum; (4) supervision of students; clinical training portion of the program, would apply these provisions to the (5) provision of liability insurance; and would be allowed to be offered outside entire medical program, regardless of (6) evaluation of student performance. whether a particular portion is located the country where the main campus of In addition, the proposed regulations the school is located. In addition to outside or inside the United States, as would require a foreign graduate the Department believes both are good distinguishing between the basic medical school to do the following in its science and the clinical training parts of requirements for medical education application for participation in Title IV, regardless of location. In § 600.52, the the program, the Committee discussions HEA programs: (1) To provide copies of distinguished between the different proposed regulations would add a the affiliation agreements with hospitals definition of clinical training. Clinical parts of clinical training; referred to in and clinics that it is required to have these proposed regulations as the core, training would be defined as the portion under proposed § 600.55(e)(2); (2) to list of a graduate medical education the required clinical rotation (the all educational sites associated with its electives that students are required to program that counts as a clinical program on its application for clerkship for purposes of medical take), and the not required clinical participation, except those not used licensure. Proposed §§ 600.20(a)(3)(i)(B) rotation (the electives that students can regularly that are chosen by individual and (b)(3)(i)(B) would require choose). The proposed regulations set students who take no more than two freestanding foreign graduate medical three criteria for clinical training sites electives there for no more than a schools, and foreign institutions that outside the United States—the combined total of eight weeks; (3) to include a foreign graduate medical requirement to be located in an apply for certification and wait for school, to identify, for each clinical site approved comparable country; required approval before dispensing Title IV, reported in the certification or on-site evaluation and specific approval HEA program funds at any additional recertification application as required of the site by the institution’s medical location that offers core clinical under §§ 600.20(a)(3)(i)(A) and accrediting agency if a location is in a training, except for those locations comparable foreign country outside the included in the accreditation of a (b)(3)(i)(A), the type of clinical training country of the program’s main campus; medical program accredited by the (core, required clinical rotation, not and the requirement that instruction be LCME; and (4) to indicate whether it required clinical rotation) offered at that offered in conjunction with medical offers only post-baccalaureate/ site. Proposed § 600.55(a)(3) would educational programs offered to equivalent medical programs, other require foreign graduate medical schools students enrolled in accredited medical types of programs that lead to to appoint, rather than employ, faculty schools located in that approved foreign employment as a doctor of osteopathic members with comparable academic country—but allow two exceptions. The medicine or doctor of medicine, or both. credentials to those teaching similar two exceptions would permit a foreign The Department believes that courses at U.S. medical schools. The graduate medical school to have a distinguishing between the parts of the proposed regulations make no clinical training program in a foreign medical education program allows a substantive changes to existing country other than the country in which balance between effective oversight and accreditation requirements for foreign the main campus is located or in the exposure to other medical environments graduate medical schools. United States without meeting these and cultures for short-term elective The proposed regulations also address three criteria if the clinical training training. admission criteria and collection and location is included in the accreditation Other proposed regulations address submission of data in order to provide of a medical program accredited by the general definitions and requirements data for the evaluation of whether LCME, or if no individual student takes related to foreign graduate medical additional performance measures more than two electives at the clinical programs. The proposed regulations should be required of foreign graduate training location and the combined would change the definition of a foreign medical schools. Proposed § 668.55(c)

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would require foreign graduate medical HEOA, as does proposed suggested requiring schools to publish school with a post-baccalaureate/ § 600.55(f)(2)(ii), which would allow a the primary language of instruction, and equivalent medical program to require foreign graduate medical school that if not English, identify any alternate U.S. citizens, nationals, or permanent was eligible to participate in the Title language of instruction, the Committee residents accepted as students to have IV, HEA programs and exempt from the agreed that requiring schools to publish taken the MCAT and have reported the USMLE pass rate requirement based on all languages in which instruction is scores to the school. To provide having a clinical training program offered would be more beneficial and no information valuable for the future approved by a State as of January 1, more burdensome. evaluation of the quality of education 1992, to continue to be eligible and Foreign Veterinary Schools (§ 600.56): being provided to students attending exempt from the USMLE pass rate Section 102(a)(2)(A)(ii) of the HEA foreign graduate medical schools, requirement as long as it continues to stipulates that Title IV borrowers foreign graduate medical schools must operate a clinical training program in at attending a foreign for-profit veterinary determine consent requirements, obtain least one State that approves the school must complete clinical training necessary consents from U.S. citizens, program. Proposed § 600.55(f)(1)(ii) at an approved veterinary school located nationals, or eligible permanent would make the following changes to in the United States. The HEA does not residents, and comply with the the USMLE pass rate requirement: (1) establish additional eligibility criteria collection and submission requirements Increase the USMLE pass rate threshold specific to foreign veterinary schools, in proposed § 600.55(d) for MCAT from 60 percent to 75 percent and requires the Secretary to develop, scores, residency placement, and (§ 600.55(f)(1)(ii)); (2) limit the pass rate through regulation, eligibility criteria for USMLE examination scores. Proposed requirement to Step 1, Step 2—CS, and foreign institutions that are comparable § 600.55(d) requires that schools obtain Step 2—CK, excluding Step 3; (3) to the eligibility criteria for domestic the required information at their own require a foreign graduate medical institutions of higher education. Under expense, submit MCAT scores and school to have at least a 75 percent pass current regulations, foreign veterinary medical residency data to their rate on each step/test of the USMLE school facilities outside the United accrediting agency by September 30 of (limited to Step 1, Step 2—CS, and Step States must be adequately equipped and each year, and submit the USMLE 2—CK), rather than a combined pass staffed to provide students scores for Step 1, Step 2—Clinical rate for all steps/tests; (4) require foreign comprehensive clinical and classroom Skills, and Step 2—Clinical Knowledge graduate medical schools to include in veterinary instruction, foreign to the Department annually by the calculation only U.S. citizens, veterinary school programs provided September 30 unless the Department nationals, or eligible permanent inside the United States must be informs the school that it will get the residents, rather than all students taking approved by all veterinary licensing USMLE scores from ECFMG. The the USMLE; and (5) require foreign boards and evaluating bodies that the provision in proposed § 600.55(e)(2) graduate medical schools to include Secretary considers to be relevant, and would require a foreign graduate only first time test takers in the the credentials of faculty members medical school to notify its accrediting calculation. As described in the employed by the foreign veterinary body within one year of any material preamble section related to this school must be equivalent to the changes in educational programs, and provision, under proposed credentials of faculty members teaching the overseeing bodies and in the formal § 600.55(f)(4), pass rates must be based the same or similar courses in the United States. affiliation agreements with hospitals on at least eight step/test results. and clinics would reflect NCFMEA The Department proposed revising the Recommendations 12(a) and 12(b) and Proposed § 600.55(g)(1) would require regulations governing eligibility criteria would allow a school’s accrediting body a foreign graduate medical school to for foreign veterinary schools to to assess any substantive impact the follow existing regulations currently improve the Department’s process for change would have on the school’s applicable to undergraduate programs making determinations of eligibility of operations. for establishing a maximum timeframe foreign veterinary schools to participate The proposed change in in which a student must complete his or in the Title IV, HEA programs. The § 600.55(f)(1)(i)(B) to allow a foreign her program of medical education and proposed regulations would apply the graduate medical school to be exempt require that a student complete his or current regulatory standards regarding from the existing citizenship her program within 150 percent of the facilities, approvals and faculty requirement if it had a clinical training published length of the program. This credentials without distinguishing program approved by a State as of adopts NCFMEA Recommendation 9(b). between portions of veterinary programs January 1, 2008, and continues to In addition, proposed § 600.55(g)(2) provided inside and outside of the operate a clinical training program in at would require a foreign graduate United States, and, as of July 1, 2015, least one State that approves the medical school to document the would require a foreign veterinary program, reflects a change made by the educational remediation it provides to school to be accredited or provisionally HEOA. As a result, both foreign assist students in making satisfactory accredited by an organization acceptable graduate medical schools that had a academic progress. In the future, the to the Secretary. As required by the clinical training program approved by a Department or the NCFMEA may collect HEA, the proposed regulations also State as of January 1, 1992, and those and examine the data to see if this is an distinguish between for-profit foreign that had a clinical training program area of concern that may need to be veterinary schools and those that are approved by a State as of January 1, addressed, but they did not believe it public or private nonprofit. Students 2008, are exempt from the citizenship was currently necessary or cost effective from a for-profit foreign veterinary rate provision, provided the school to require the regular submission of school must complete their clinical continues to operate a clinical training these data to the Department. Finally, training at an approved veterinary program in at least one State that proposed § 600.55(g)(3) would require a school located in the United States. approves the program. foreign graduate medical school to Students from public or private The increase in the USMLE pass rate publish all the languages in which nonprofit foreign veterinary schools threshold from 60 percent to 75 percent instruction is offered. Although may complete their clinical training at also reflects a change made by the NCFMEA Recommendation 10 an approved veterinary school located

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in the United States or in the home or specify Title IV, HEA program obtaining the NCLEX results country, and may also take clinical eligibility criteria unique to foreign individually, the school may obtain a training outside the United States or the nursing schools. report or reports from the National home country if no individual student The proposed regulations would add Council of State Boards of Nursing takes more than two electives at the several new definitions relating to (NCSB), or an NCSB affiliate or NCSB location and the combined length of the foreign nursing schools to § 600.52, and contractor, reflecting the percentage of elective does not exceed eight weeks. would add a new § 600.57 specifying the school’s students and graduates The Department agreed to be consistent additional Title IV eligibility criteria for taking the NCLEX–RN in the preceding with medical school provisions that foreign nursing schools. The proposed year who passed the examination, or the would permit some clinical training regulations would add definitions to data from which the percentage could locations of foreign graduate medical § 600.52 for the terms associate degree be derived, and provide the report to the schools to be outside of the United school of nursing, collegiate school of Secretary; (6) provide, a program of States and the country in which the nursing, and diploma school of nursing, clinical and classroom nursing main campus of the school is located. with the primary distinction between instruction, which students are This provision could not be extended to the three types of nursing schools being normally required to complete, that is for-profit veterinary schools because the the type of degree offered by the school. supervised closely by members of the statute requires students who attend For an associate degree school of school’s faculty. The program, which these schools to complete their clinical nursing, the nursing program must lead includes programs provided through training in the United States. to a degree equivalent to an associate agreements with nursing schools in the degree in the U.S. For a collegiate Foreign Nursing Schools (§ 600.57): United States, must be provided in school of nursing, the nursing program The HEOA amended section facilities adequately equipped and must lead to a degree equivalent to a 102(a)(2)(A) of the HEA to provide staffed to afford students comprehensive bachelor of arts, a bachelor of science, specific standards for foreign nursing clinical and classroom nursing or a bachelor of nursing in the U.S., or schools. The amendments are effective instruction, through a training program to a degree equivalent to a graduate beginning July 1, 2010, except that, for for foreign nursing students that has degree in nursing in the U.S. For a been approved by all nurse licensing nursing schools that were eligible for diploma school of nursing, the nursing boards and evaluating bodies whose Title IV, HEA program participation on program must lead to the equivalent of views are considered relevant by the August 13, 2008 (the day before a diploma in the U.S. or to other indicia Secretary; (7) have graduated classes enactment of the HEOA), they are equivalent to a diploma that during each of the two twelve-month effective July 1, 2012. The HEA, as demonstrates that the student has periods immediately preceding the date amended by the HEOA and HCERA, satisfactorily completed the program. the Secretary receives the school’s provides that a foreign nursing school, These definitions are drawn from the request for an eligibility determination; including a for-profit nursing school, Public Health Service Act, as required and (8) employ only those faculty may not participate in the Title IV, HEA by the foreign nursing school provisions members whose academic credentials programs unless the school: (1) Has an of the HEOA amendments to the HEA. are the equivalent of credentials clinical training agreement with a Proposed new § 600.57 would require required of faculty members teaching hospital or accredited school of nursing a foreign nursing school to meet the the same or similar courses at nursing located in the United States; (2) has an applicable eligibility criteria elsewhere schools in the United States. agreement with an accredited school of in part 600. In addition, a foreign The proposed regulations also would nursing located in the United States nursing school must meet the statutory specify that after a school reimburses providing that the students graduating requirements described above as well as the Secretary for the cost of a loan from the foreign nursing school also the following eligibility criteria: (1) default, the loan is assigned to the receive a degree from the accredited Meet the definition of associate degree school. The borrower remains liable to U.S. school of nursing; (3) certifies only school of nursing, collegiate school of the school for the outstanding balance of Federal Direct Stafford Loans under nursing, or diploma school of nursing; the loan, under the terms and section 455(a)(2)(A) of the HEA, Federal (2) reimburse the Department for the conditions specified in the promissory Direct Unsubsidized Stafford Loans cost of any loan defaults for current and note. under section 455(a)(2)(D) of the HEA, former students included in the Proposed § 600.56(b) would provide or Federal Direct PLUS loans under calculation of the institution’s cohort that no portion of the foreign nursing section 455(a)(2)(B) of the HEA for default rate during the previous fiscal program offered to U.S. students may be students attending the school; and (4) year; (3) determine the consent located outside of the country in which reimburses the Secretary for the cost of requirements for, and require the the main campus of the foreign nursing any loan defaults for current and former necessary consents of, all students school is located, except for clinical students included in the calculation of accepted for admission who are U.S. sites, which by statute must be located the school’s cohort default rate during citizens, nationals, or eligible in the United States. the previous fiscal year. In addition, the permanent residents, to enable the HEOA amendments to the HEA require school to comply with the requirements Single Legal Authorization for Groups that at least 75 percent of the for collection and submission of of Foreign Institutions (§ 600.54) individuals who were students or NCLEX–RN results or pass rates; (4) To ease administrative burden for graduates of a foreign nursing school, annually, at its own expense, obtain all foreign institutions, the Department and who took the National Council results on the NCLEX–RN achieved by sought to determine if compliance with Licensure Examination for Registered students and graduates who are U.S. any of the foreign institution Nurses (NCLEX–RN) in the year citizens, nationals, or eligible institutional eligibility criteria could be preceding the year for which the school permanent residents, together with the demonstrated at a nationwide level, for is certifying a Title IV, HEA program dates the student has taken the all eligible institutions within a country, loan, received a passing score on the examination (including any failed rather than at the individual institution NCLEX–RN. Current regulations do not examinations) and provide the results to level. After discussions with the non- define the term ‘‘foreign nursing school’’, the Secretary; (5) as an alternative to Federal negotiators and our own

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internal review of the Title IV to a U.S. degree, or be at least a two- eligible as comparable to at least a one- institutional eligibility criteria, the academic year program acceptable for academic-year training program is Department determined that the full credit toward the equivalent of a equivalent to the academic work requirement for proof of legal U.S. baccalaureate degree, or be required for eligibility of these programs authorization to provide postsecondary equivalent to at least a one-academic- at domestic institutions. education could be provided this way. year training program that leads to a Audited Financial Statements Section 600.54(b) of the current certificate, degree, or other recognized (§ 668.23): Section 487(c)(1)(A)(i) of the regulations requires a foreign institution educational credential and prepares HEA was amended by the HEOA to give to be legally authorized by an students for gainful employment in a the Secretary the authority to modify the appropriate authority to provide recognized occupation. financial and compliance audit postsecondary education in the country Under the proposed regulations, a requirements for foreign institutions and where the institution is located. foreign institution would have to the authority to waive the audit Proposed § 600.54(f) would provide demonstrate to the satisfaction of the requirements for foreign institutions three different methods for a foreign Secretary (who would make program- that receive less than $500,000 in Title institution to prove that it is legally by-program determinations of IV, HEA program funds in the preceding authorized to provide postsecondary comparability) that the amount of year. Currently, under § 668.23(a)(2), an education in the country where the academic work required by a program it annual submission of both a compliance institution is located. The seeks to qualify as eligible as at least a audit and audited financial statements documentation from a foreign country’s one-academic-year training program is is required of all institutions education ministry, council, or equivalent to— participating in the Title IV, HEA equivalent agency may either be: (1) A • For a program offered in credit programs. Section 668.23(d)(1) requires single legal authorization that covers all hours, a minimum of 30 weeks of that an institution’s financial statements eligible foreign institutions in the instructional time and, for an must be prepared on an accrual basis in country; (2) a single legal authorization undergraduate program, an amount of accordance with U.S. GAAP, and that covers all eligible foreign instructional time whereby a full-time audited by an independent auditor in institutions in a jurisdiction within the student is expected to complete at least accordance with U.S. GAGAS, or in country; or (3) separate legal 24 semester or trimester credit hours or compliance with guidance in Office of authorizations for each eligible foreign 36 quarter credit hours; or Management and Budget Circular A–133 institution in the country. • For a program offered in clock and A–128 or in audit guides developed The proposed regulations reflect hours, a minimum of 26 weeks of by, and available from, the Department recommendations made in response to instructional time and, for an of Education’s Office of Inspector concerns raised by non-Federal undergraduate program, an amount of General. negotiators about reliance on national instructional time whereby a full-time The proposed regulations categorize governments to produce lists of student is expected to complete at least foreign institutions by control and institutions legally authorized to 900 clock hours. amount of Title IV, HEA program funds provide postsecondary education The Department believes the received during the institution’s most because of efficiency and provincial proposed regulations are necessary recently completed fiscal year and level regulation of educational providers because many foreign institutions use establish new financial audit in some countries. In addition to educational measurements other than submission requirements. For a public allowing proof of legal authorization to conventional U.S. semester, trimester, or nonprofit foreign institution that be provided on a nationwide basis, the quarter credits and clock-hours. The received less than $500,000 in U.S. Title proposed regulations allow for proof of non-Federal negotiators provided the IV, HEA program funds during the legal authorization to be provided for all Department with information regarding institution’s most recently completed eligible institutions in a jurisdiction the definition of non-degree programs fiscal year, the audited financial within the country, and continue to by different countries, units of statements submission normally would allow proof of legal authorization to be measurement for programs in other be waived. However, if the institution is provided separately for each eligible countries, and evaluation and in its initial provisional period of institution in a country. comparability determinations made by participation, and received Title IV, Eligibility of Training Programs at private entities. The information HEA program funds during that year, Foreign Institutions (§ 600.54): Section provided consistently indicates that the the institution must submit, in English, 101(b)(1) of the HEA provides, in part, assignment of credits or other measures audited financial statements prepared in that one type of educational program of academic work by foreign institutions accordance with generally accepted that a Title IV ‘‘institution of higher vary greatly. As the definition of an accounting principles of the education’’ may provide to be eligible to academic year—the program length institution’s home country. For a public apply to participate in the Title IV, HEA measurement used here—specifically or nonprofit foreign institution that programs, is a training program of at references these U.S. measurements, it received at least $500,000 but less than least one year that prepares students for is necessary to make some sort of $3,000,000 in U.S. Title IV, HEA gainful employment in a recognized comparability determination in order to program funds during its most recently occupation. Section 102(a)(2)(A) determine the eligibility of these completed fiscal year, the institution provides for participation in the Title programs at foreign institutions, and in would be allowed to submit for that IV, HEA programs by entities that are some cases to determine the eligibility year, in English, audited financial comparable to such institutions under of the foreign institution itself. Under statements prepared in accordance with regulations prescribed by the Secretary. the proposed regulations, the Secretary the generally accepted accounting Current regulations provide that, in would make determinations of principles of the institution’s home order to be eligible to apply to comparability on a program-by-program country in lieu of financial statements participate in the Title IV, HEA basis, based on information provided by prepared in accordance with U.S. programs, a foreign institution must a foreign institution to demonstrate that GAAP. For a public or nonprofit foreign provide an eligible educational program the amount of academic work required institution that received at least that leads to a degree that is equivalent by a program it seeks to qualify as $3,000,000 but less than $5,000,000 in

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U.S. Title IV, HEA program funds be required to submit compliance audits must be covered. Also, a compliance during its most recently completed under an alternative compliance audit audit must be submitted no later than fiscal year, the institution would be performed in accordance with the audit six months after the last day of the required to submit once every three guide from the Department’s Office of institution’s fiscal year. years audited financial statements Inspector General. Under an alternative The Department believes the prepared in accordance with the compliance audit, the auditor performs proposed regulations provide a basis to generally accepted accounting prescribed procedures and reports the establish a streamlined set of principles of both the institution’s home findings, but, unlike a standard compliance audit requirements that country and U.S. GAAP, but, for the two compliance audit, is not required to would provide flexibility and cost years in between, would be allowed to express an opinion of the reliability of benefits to the large number of relatively submit in English, audited financial the institution’s assertions concerning small foreign institutions and reduce the statements prepared in accordance with the institution’s compliance with the reporting burden for the majority of the generally accepted accounting requirements. The alternative foreign institutions. Approximately 75% principles of the institution’s home compliance audit is performed as an of the foreign institutions that country in lieu of financial statements agreed-upon procedures attestation participate in the Title IV, HEA prepared in accordance with U.S. engagement, and the standard programs are in this lower-volume GAAP. Foreign institutions that receive compliance audit is performed as an group, and these institutions account for more than $5,000,000 or more annually examination-level attestation less than 7.5% of total Title IV, HEA would remain subject to current engagement. The proposed regulations program funds received by foreign requirements for audited financial would require an annual submission of institutions. The proposed regulations statements prepared in accordance with the compliance audit, except that, in should allow the Department to U.S. GAAP. specified circumstances, an institution concentrate its resources on reviewing The proposed regulations also allow would submit a compliance audit compliance audits from the larger the Secretary to issue a letter to a foreign annually for two consecutive years, volume institutions and institutions that institution that has been identified as then, once notified by the Department, have demonstrated Title IV, HEA having problems with its financial would be permitted to submit a program problems that represent the condition or financial reporting that compliance audit every three years Department’s greatest financial risk. requires the foreign institution to submit thereafter. To qualify for these less Public Foreign Schools and Financial its audited financial statements in the frequent submission requirements, a Responsibility (§ 668.171) manner specified by the Secretary. foreign institution would be required to Compliance Audits (§ 668.23): Current have received less than $500,000 in the Section 487(c)(1)(B) of the HEA regulations require an annual most recently completed fiscal year, be provides that the Secretary shall submission of both a compliance audit fully certified, have timely submitted prescribe regulations, as necessary, to and audited financial statements from and had accepted compliance audits for provide for the establishment of all institutions participating in the Title two consecutive fiscal years, and have reasonable standards of financial IV, HEA programs. An institution’s no history of late submissions since responsibility for institutions that compliance audit must cover on a fiscal then. participate in the Title IV, HEA year basis, all Title IV, HEA program Foreign institutions that receive programs. Section 102(a)(2)(A) provides transactions, and must cover all of those $500,000 or more in U.S. Title IV, HEA that the Secretary shall prescribe transactions that have occurred since program funds would be required to regulations for determining the the period covered by the institution’s submit an annual compliance audit comparability of foreign schools to Title last compliance audit and be conducted using the standard audit procedures for IV ‘‘institutions of higher education.’’ in compliance with the general foreign institutions in the audit guide Current section 668.171(c) provides that standards for compliance audits issued by the Office of Inspector an institution is financially responsible contained in the U.S. GAO Government General. The compliance audit would if the institution notifies the Secretary Auditing Standards and procedures for be submitted along with any alternative that it is designated as a public audits contained in audit guides compliance audits for any preceding institution by the State, local, or developed by the Department of fiscal years in which the institutions municipal government entity, tribal Education’s Office of Inspector General. received less than $500,000 in U.S. Title authority, or other government entity The current Inspector General’s Audit IV, HEA program funds. that has the legal authority to make that Guide concerning compliance audits for Section 668.23(h)(3)(ii) of the designation, and provides a letter from foreign institutions includes an proposed regulations would provide the an official of that State or other Alternative Compliance Engagement Secretary with the authority to require government entity confirming that the that may be used for foreign institutions that a foreign institution’s compliance institution is a public institution. In whose enrolled students received less audit be performed at a higher level of addition, the institution may not be in than the $500,000 threshold in U.S. engagement, and/or require that a violation of any past performance Title IV, HEA program funds. compliance audit must be submitted to requirement. Current § 668.171(c) is not The proposed regulations would the Secretary annually if it has been addressed to foreign institutions. The separate foreign institutions into two identified that the institution has proposed regulations would permit a groups, establishing new compliance problems with its administrative foreign public institution to meet the audit requirements for foreign capability or compliance reporting. financial responsibility in a manner institutions based upon whether the Section 668.23(h)(2) of the proposed similar to domestic public institutions institution received less than $500,000 regulations would make clear that, as as described above. If a foreign public or $500,000 or more in U.S. Title IV, under the current regulations, a foreign institution did not meet the new HEA program funds during the institution’s compliance audit must be requirements, its financial responsibility institution’s most recently completed done on a fiscal year basis, and all Title would be determined under the general fiscal year. For foreign institutions that IV, HEA program transactions that have requirements of financial responsibility, receive less than $500,000 per year in occurred since the period covered by including the application of the equity, U.S. Title IV, HEA program funds would the institution’s last compliance audit primary reserve, and net income ratios.

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Although the full faith and credit purposes, a domestic institution, but the Federal negotiators felt this initial provision would provide an alternate non-Federal negotiators felt the proposal was too limiting and that way of meeting the financial language was too broad and urged the matriculating in different countries as responsibility standards for public Department to make exceptions for part of a graduate medical program foreign institutions, it would not excuse research conducted in the United States would benefit students by exposing the institution from required by PhD students. In responding to these them to medical education and practice submissions of audited financial comments, the Department clarified the in different environments and cultures. statements. meaning of the terms written agreement After negotiations involving possible The following section addresses the and educational enterprise and sought locations for the basic science portion of alternatives that the Secretary to further distinguish between foreign the program as well as accreditation considered in implementing these and domestic institutions by prohibiting requirements for clinical training sites, regulations. These alternatives are also foreign locations of an educational the proposed framework that discussed in more detail in the Reasons enterprise from being considered distinguishes the basic science, required sections of this preamble related to the additional locations of a domestic clinical training, and elective clinical specific regulatory provisions. location of the educational enterprise if training was established. The Regulatory Alternatives Considered the enterprise has at least twice as many Department reiterated its belief that the students enrolled in foreign locations as basic sciences part of a graduate medical Definition of a Foreign Institution those enrolled in domestic locations. program should be located in the same (§§ 600.51, 600.52, 600.54, 682.200, The non-Federal negotiators were country as the main campus so that the 682.611): As described in the section of comfortable with the majority of the classroom instruction part of the the preamble related to this provision, Department’s proposed language but program will be under the direct there were extensive comments and several non-Federal negotiators authority of the school’s accrediting negotiations related to the definition of continued to raise concerns about the body. In addition, the Department a foreign institution. In response to the proposed language prohibiting U.S. agreed to the position of some non- Department’s position that a more locations of foreign institutions and Federal negotiators who felt that clinical detailed definition of foreign institution written arrangements with institutions locations that are included in the is necessary and request for comments, located in the United States. The accreditation of a medical program several non-Federal negotiators urged Department indicated that foreign accredited by the LCME, such as the Department to define the term to institutions can establish locations in locations of some Canadian schools, ensure quality control through high the United States, but that such should be eligible regardless of locale academic standards and suggested locations and institutions would need to because the LCME accrediting standards subjecting foreign institutions to be separately certified and meet the accreditation by accreditors recognized are those that are applied to medical requirements applicable to domestic schools in the United States. by the Department. When the institutions in order for U.S. students Department indicated that it does not attending them to receive Title IV, HEA The Department initially proposed recognize U.S. accreditors for funds. The Department does not want a that, consistent with NCFMEA accreditation of institutions outside the foreign institution to send its U.S. Recommendations 1(a) and 1(b), a United States, the non-Federal students to a U.S. location of a foreign foreign graduate medical school would negotiators suggested a requirement that institution or to a U.S. institution with have to require students who it admits foreign institutions be ‘‘legally which it has an agreement for their to have a specific educational authorized’’ by an appropriate authority training because students enrolled in a background (e.g., for a post- in the country in which the institution foreign institution are only eligible for baccalaureate/equivalent medical is located, with some negotiators urging Direct Loan program (or, before July 1, program, students must have a the Department to be flexible in this 2010, FFEL program) loans. Instead, the baccalaureate degree, or at least 90 area as such authority could reside in Department wants U.S. students semester credit hours or the equivalent, different branches of government attending postsecondary institutions in in general education that includes, but depending on the country. Several non- the United States to be eligible for the is not limited to, coursework in the Federal negotiators suggested that the full range of Title IV, HEA program social sciences, history, and languages). Department require foreign countries to funds available to domestic institutions. Several of the non-Federal negotiators recognize the degrees and licenses Foreign Graduate Medical Schools felt that such provisions were unduly offered by a foreign institution. (§§ 600.20, 600.21, 600.52, 600.55): The limiting, and ultimately the negotiators The Department drafted regulatory Department’s initial proposal related to agreed it would be more appropriate for language that responded to these the location of foreign graduate medical the NCFMEA to establish these suggestions and also included schools reflected the approach provisions as guidelines for accrediting provisions prohibiting foreign recommended by NCFMEA bodies. The Department had also institutions from entering into written Recommendation 12(a) and the included as a part of its initial proposal, arrangements with institutions located Department’s current policy of allowing that a school having an integrated in the United States and preventing clinical training sites outside of the program for a first professional program foreign institution students from program’s main country if the site is leading to a Doctor of Medicine (M.D.) engaging in courses, research, work, and located in an NCFMEA approved degree, or its equivalent must require other pursuits within the United States country, the institution’s medical students who are U.S. citizens, that drew objections from the non- accrediting agency has conducted an on- nationals, or permanent residents to Federal negotiators. The Department site evaluation and specifically take the MCAT no later than three years included these provisions to address approved the site, and the clinical after admission to the program. The abuses whereby an institution sets up an instruction is offered in conjunction Department was ultimately persuaded to offshore campus to claim foreign with medical educational programs remove the provision by non-Federal institution status and thus avoids offered to students enrolled in negotiators who pointed out that domestic requirements even though the accredited medical schools located in requiring students to take the MCAT institution is, for all intents and that foreign country. Several non- early in the program would distract

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them from the education that was on current practice by requiring AVMA the accreditation requirement until July preparing them to take the USMLE. accreditation for foreign veterinary 1, 2015, giving foreign veterinary Ultimately, the Department agreed to schools applying to participate in Title schools that are currently in the Title IV, retain from Recommendations 1(a) and IV, HEA programs. The AVMA’s HEA programs approximately five years 1(b) only the provision that would standards are detailed and specific, it after final regulations are published to require U.S. students who are admitted has the expertise to evaluate foreign obtain accreditation from an acceptable to a school having a post-baccalaureate/ veterinary programs that the Department accrediting agency. equivalent medical program to have lacks, and it has a history of accrediting Foreign Nursing Schools (§ 600.57): taken the MCAT and to report the score. foreign veterinary programs as As described in the preamble section This provision would not require a veterinary schools in Australia, Canada, related to this provision, the Department foreign graduate medical school to give the Netherlands and other foreign modeled the proposed language on weight to a U.S. student’s score on the countries are currently accredited by the portions of the HEOA related to foreign MCAT as part of its admission AVMA. Non-Federal negotiators nursing schools and on existing requirements. acknowledged the quality of the regulatory language related to foreign The Department originally proposed AVMA’s accreditation standards and the medical and veterinary schools. For the requiring schools to submit data on all logic of requiring it for foreign most part, the non-Federal negotiators steps of the USMLE, but non-Federal veterinary schools as most U.S. students accepted this approach, but had some negotiators pointed out that it would be at those schools eventually practice in concerns about the provisions specific extremely difficult for schools to obtain the United States. However, several to foreign nursing programs. In particular, the requirement for clinical data on Step-3 as it is taken by students non-Federal negotiators had concerns after they have graduated from the training to be provided in the United about requiring AVMA accreditation as institution and a student cannot sign a States, the requirement that a foreign it is a lengthy and expensive process, consent to provide information on Step nursing school reimburse the many foreign accrediting agencies have 3 to third parties until he or she is Department for the cost of loan defaults comparable standards, some schools actually taking the test. Although the for loans included in the calculation of with a small number of U.S. students Department is continuing to explore the a school’s cohort default rate, and the would opt out of receiving Title IV, HEA collection of data from the FSMB for status of loans post-default were subject program funds thus limiting the options evaluating its use in the future, the to extensive discussion. for U.S. students, and it is difficult for Department agrees that it would be Audited Financial Statements unreasonable to require institutions to for-profit veterinary schools to obtain (§ 668.23): The negotiators reached be responsible for its collection and AVMA accreditation because of the agreement on the proposed regulatory submission at this time. To focus the research component. The non-Federal language on financial audits only after USMLE pass rate on the students the negotiators suggested using other extensive negotiations and significant Department is most concerned about measures such as pass rates on licensing compromise. As detailed in the section and allow comparability to domestic exams, licensure rates, or default rates of the preamble related to this schools, the USMLE pass rate to determine eligibility of foreign provision, the Department initially calculation was limited to U.S. citizens, veterinary schools. The Department proposed to require audited financial nationals, and eligible permanent noted that using measures such as pass statements prepared in accordance with residents taking the tests for the first rates on licensing examinations can be the same requirements for domestic time. operationally complicated, raising institutions (U.S. GAAP) for public Some non-Federal negotiators concerns over privacy rights, obtaining institutions that received $1,000,000 or expressed concern that requiring foreign exam results, and calculating pass rates more in U.S. Title IV, HEA program institutions to obtain student consent in ways that are not disadvantageous to funds, or private foreign institutions for the release of information may be in schools with low numbers of Title IV, that received $500,000 or more in U.S. violation of certain countries’ privacy HEA program students. In addition, pass Title IV, HEA program funds, as well as laws. After reviewing an analysis of the rates would not necessarily be a reliable for any institution in its initial privacy laws and requirements of one indicator of the academic credentials of provisional period of participation. For country that had been identified as one the faculty at a foreign veterinary public foreign institutions, if an that could have problems in this area, school, and would provide no institution received at least $500,000 in the Department concluded that there indication that the facilities at the U.S. Title IV, program funds, but less would be several ways that institutions veterinary school are adequate and safe than $1,000,000 in U.S. Title IV, HEA in that country could legally obtain the for the students or for the animals program funds during the institution’s required information from students, and housed in the facilities. Instead, the fiscal year preceding the audit period, committed to working with those Department accepted the the institution would have been allowed schools and schools in any country that recommendation of some of the non- to submit audited financial statements have concerns to facilitate compliance. Federal negotiators to replace the prepared in accordance with the The Department noted, however, that proposed requirement that a foreign generally accepted accounting the Department cannot waive statutory veterinary school be accredited or principles of the institution’s home or regulatory requirements used to provisionally accredited by the AVMA, country in lieu of financial statements determine institutional eligibility and with a requirement that the school be prepared in accordance with U.S. that if a foreign country’s privacy laws accredited or provisionally accredited GAAP. If there was an unpaid liability did preclude obtaining the information by an agency acceptable to the due to the Secretary by any public and materials necessary for establishing Secretary. This gives the Department institution controlled by the same compliance, the institutions located in some flexibility in evaluating school’s government entity, all public those countries unfortunately would not compliance with the accreditation institutions controlled by that be able to qualify for participation in the requirement, and gives schools some government entity would be required to Title IV, HEA programs. flexibility with regard to obtaining submit audited financial statements Foreign Veterinary Schools (§ 600.56): accreditation. In addition, the prepared in accordance with U.S. The Department’s initial proposal built Department delayed the effective date of GAAP. Non-Federal negotiators argued

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that foreign nonprofit institutions least $3,000,000 but less than Costs should be treated the same as foreign $5,000,000 in U.S. Title IV, HEA Several of the provisions public institutions, the requirement to program funds annually. Pursuant to the implemented though this NPRM would submit audited financial statements revised proposal, institutions in this require regulated entities to update prepared in accordance with U.S. GAAP group would submit financial existing policies and procedures related was cost prohibitive, a non-U.S. GAAP statements prepared in accordance with to financial and compliance audits. financial statement such as one home country accounting standards and Other proposed regulations generally prepared in accordance with U.S. GAAP for one year, and then, if no would require discrete changes in International Financial Reporting problems were identified, submit specific parameters associated with Standards (IFRS) would be comparable financial statements prepared in existing requirements—such as changes and provide any information the accordance with the home country to clinical training programs, Department with the information it standards for the next two years and application procedures, USMLE pass needs, or that the audited financial once every three years, rather every rates, and notification requirements— statement requirement should be tied to year, U.S. GAAP financial statements. rather than wholly new requirements. cohort default rates. Accordingly, entities wishing to After consideration of the feedback Benefits continue to participate in the student from the non-Federal negotiators, the aid programs have already absorbed Department revised its initial proposal Benefits provided in these regulations many of the administrative costs related to treat nonprofit and public foreign include submission requirements for to implementing these proposed institutions alike, and eliminated the compliance audits and audited financial regulations. Marginal costs over this provision that would have required all statements specific to foreign public institutions controlled by the institutions; a revised definition of a baseline are primarily due to new same government entity to submit foreign institution and a definition of procedures that, while possibly audited financial statements prepared in nonprofit status specific to foreign significant in some cases, are an accordance with the same requirements institutions; the creation of a financial unavoidable cost of continued program for domestic institutions if there is an responsibility standard for foreign participation. As discussed above, unpaid liability due to the Secretary by public institutions that is comparable to foreign nursing schools would be any public institution controlled by the the financial responsibility standard for required to reimburse the Department same government entity. In addition, the domestic public institutions; permission for the costs of defaults for loans Department raised the threshold for for a single legal authorization for included in the calculation of the nonprofit and public foreign institutions groups of foreign institutions under the school’s cohort default rate for the that would be allowed to submit audited purview of a single government entity; previous year. This is estimated to cost financial statements prepared in the establishment of program eligibility the participating schools approximately accordance with the generally accepted requirements specific to training $3.1 to $3.9 million a year in gross accounting principles of the programs at foreign institutions; default costs. As the subsequent holders institution’s home country from institutional eligibility criteria specific of the loans, the schools would be able $1,000,000 to $3,000,000 in U.S. Title to foreign graduate medical schools, to pursue recovery of those funds, IV, program funds. The Department also foreign veterinary schools, and foreign reducing the anticipated net costs to clarified that it would require that nursing schools; and revised maximum approximately $1.7 to $2.2 million. foreign institutions that would be certification periods for some foreign Some foreign institutions could choose required to submit audited financial institutions. The revised requirements to withdraw from participation in the statements prepared in accordance with for audited financial statements improve Title IV, HEA programs as a result of U.S. GAAP would also be required to comparability between foreign and these provisions. However, the submit a copy of an institution’s audited domestic institutions and enhance the Department believes the flexibility and financial statements for the same period security of Title IV, HEA program funds targeting of the negotiated provisions that were prepared under the while taking into account the burden on should allow institutions to remain in institution’s home country standards, foreign institutions of different sizes. the programs while enhancing the security of Title IV, HEA program funds allowing a comparative analysis to The specific eligibility criteria for and ensuring compliance with statutory determine if the requirement to provide foreign graduate medical schools allow U.S. GAAP financial statements could requirements. students to benefit from exposure to In assessing the potential impact of be changed in the future. other medical environments and Non-Federal negotiators responded to these proposed regulations, the cultures while ensuring a comparable Department recognizes that certain this revised proposal with additional education to that available in domestic comments on the thresholds for audit provisions are likely to increase institutions. It is difficult to quantify requirements and a suggestion to workload for some program benefits related to the new institutional eliminate the $3,000,000 cap and rely participants, as described below. (This and other third-party requirements, as entirely upon ‘‘exceptions’’ that would additional workload is discussed in there is little specific data available on permit the Secretary to require U.S. more detail under the Paperwork the effect of the provisions on GAAP financial statements on a case-by- Reduction Act of 1995 section of this case basis. The Department reiterated its borrowers, institutions, or the Federal preamble.) Additional workload would view that did not view the matter in taxpayer. The Department is interested normally be expected to result in terms of rigor of accounting standards of in receiving comments or data that estimated costs associated with either other countries, but a level of risk that would support a more rigorous analysis the hiring of additional employees or justified requiring submission of U.S. of the impact of these provisions. independent auditors or opportunity GAAP financial statements. The As discussed in greater detail under costs related to the reassignment of Department offered a final revised Net Budget Impacts below, these existing staff from other activities. In proposal that modified the audit proposed provisions result in net costs total, these changes are estimated to submission requirements for public and to the government of $0.0 million over increase burden on entities participating nonprofit institutions that receive at 2011–2015. in the Federal Student Assistance

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programs by 18,684 hours. Of this These estimates were developed using this NPRM as there is no data indicating increased burden, 18,364 hours are the Office of Management and Budget’s that the provisions will have any impact associated with foreign institutions and Credit Subsidy Calculator. This on the volume or composition of 320 hours are associated with calculator will also be used for re- Federal student aid programs. The borrowers, generally reflecting the time estimates of prior-year costs, which will provision requiring foreign nursing required to read new disclosures or be performed each year beginning in FY schools to reimburse the Secretary for submit required information. 2009. The OMB calculator takes defaulted loans is expected to generate Approximately 95 percent of this projected future cash flows from the approximately $2.6 million in savings burden is associated with the financial Department’s student loan cost for the Department between 2011 and and compliance audit requirements in estimation model and produces 2015. proposed § 668.23. As described in the discounted subsidy rates reflecting the Assumptions, Limitations, and Data Paperwork Reduction Act section of this net present value of all future Federal Sources NPRM, if the regulatory changes had not costs associated with awards made in a been proposed, the burden associated given fiscal year. Values are calculated Impact estimates provided in the with the financial statement and using a ‘‘basket of zeros’’ methodology preceding section reflect a pre-statutory compliance audit requirements would under which each cash flow is baseline in which the HEOA changes be significantly higher. The monetized discounted using the interest rate of a implemented in these proposed cost of this additional burden, using zero-coupon Treasury bond with the regulations do not exist. Costs have been loaded wage data developed by the same maturity as that cash flow. To quantified for five years. In general, Bureau of Labor Statistics and used for ensure comparability across programs, these estimates should be considered domestic institutions, is $466,569 of this methodology is incorporated into preliminary; they will be reevaluated in which $461,321 is associated with the calculator and used government- light of any comments or information foreign institutions and $5,248 with wide to develop estimates of the Federal received by the Department prior to the individuals. The wage data for foreign cost of credit programs. Accordingly, publication of the final regulations. The institutions was assumed to be the Department believes it is the final regulations will incorporate this comparable to domestic institutions as appropriate methodology to use in information in a revised analysis. many are located in developed developing estimates for these proposed In developing these estimates, a wide economies with wages similar to those regulations. That said, however, in range of data sources were used, in the United States, institutions located developing the following Accounting including data from the National in countries with lower wage scales Statement, the Department consulted Student Loan Data System; operational have to compete for employees familiar with OMB on how to integrate our and financial data from Department of with the lending programs, and discounting methodology with the Education systems, including especially substituting U.S. wage rates for those in discounting methodology traditionally the Fiscal Operations Report and lower wage countries results in a used in developing regulatory impact Application to Participate (FISAP); and conservative estimate. For institutions, analyses. data from a range of surveys conducted an hourly rate of $24.88 was used to Absent evidence on the impact of by the National Center for Education monetize the burden of these these proposed regulations on student Statistics such as the 2008 National provisions. This was a blended rate behavior, budget cost estimates were Postsecondary Student Aid Survey, the based on wages of $15.51 for office and based on behavior as reflected in 1994 National Education Longitudinal administrative staff and $36.33 for various Department data sets and Study, and the 1996 Beginning managers and financial professionals, longitudinal surveys listed under Postsecondary Student Survey. Data assuming that office staff would perform Assumptions, Limitations, and Data from other sources, such as the U.S. 55 percent of the work affected by these Sources. Program cost estimates were Census Bureau, were also used. Data on regulations. Given the limited data generated by running projected cash administrative burden at participating available, the Department is particularly flows related to each provision through institutions are extremely limited; interested in comments and supporting the Department’s student loan cost accordingly, as noted earlier in this information related to possible burden estimation model. Student loan cost discussion, the Department is stemming from the proposed estimates are developed across five risk particularly interested in receiving regulations. Estimates included in this categories: two-year proprietary comments in this area. notice will be reevaluated based on any institutions, two-year public and private Elsewhere in this SUPPLEMENTARY information received during the public institutions, not-for-profit; freshman and INFORMATION section we identify and comment period. sophomore at four-year institutions, explain burdens specifically associated junior and senior at four-year with information collection Net Budget Impacts institutions, and graduate students. Risk requirements. See the heading The provisions implemented by these categories have separate assumptions Paperwork Reduction Act of 1995. proposed regulations are estimated to based on the historical pattern of Accounting Statement have a net budget impact of ¥$2.6 behavior—for example, the likelihood of million over FY 2011–2015, from default or the likelihood to use statutory As required by OMB Circular A–4 savings associated with the assignment deferment or discharge benefits—of (available at http:// of defaulted loans from foreign nursing borrowers in each category. www.Whitehouse.gov/omb/Circulars/ schools. Consistent with the Estimates indicate that three foreign a004/a-4.pdf), in Table 2, we have requirements of the Credit Reform Act graduate medical schools may become prepared an accounting statement of 1990, budget cost estimates for the eligible under these provisions in the showing the classification of the student loan programs reflect the next few years but that this would expenditures associated with the estimated net present value of all future potentially shift volume among schools provisions of these proposed non-administrative Federal costs but not significantly increase the total regulations. This table provides our best associated with a cohort of loans. (A volume of loans. The Department estimate of the changes in Federal cohort reflects all loans originated in a estimates no budgetary impact for most student aid payments as a result of these given fiscal year.) of the proposed regulations included in proposed regulations. Expenditures are

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classified as transfers from the Federal These proposed regulations would affect • List on the application to government to student loan borrowers. foreign institutions that participate in participate all educational sites and Title IV, HEA programs and loan where they are located, except for those TABLE 2—ACCOUNTING STATEMENT: borrowers. The definition of ‘‘small locations that are not used regularly, but CLASSIFICATION OF ESTIMATED EX- entity’’ in the Regulatory Flexibility Act instead are chosen by individual PENDITURES encompasses ‘‘small businesses,’’ ‘‘small students who take no more than two [In millions] organizations,’’ and ‘‘small governmental electives at the location for no more jurisdictions.’’ The definition of ‘‘small than a total of eight weeks; • Category Transfers business’’ comes from the definition of Identify, for each clinical site ‘‘small business concern’’ under section reported in the certification or Annualized Monetized $3.9. 3 of the Small Business Act as well as recertification application, the type of Costs. regulations issued by the U.S. Small clinical training (core, required clinical Cost of defaults for Business Administration. The SBA rotation, not required clinical rotation) foreign nursing defines a ‘‘small business concern’’ as offered at that site; • schools and cost of one that is ‘‘organized for profit; has a Indicate whether it offers only post- compliance with baccalaureate/equivalent medical paperwork require- place of business in the U.S.; operates primarily within the U.S. or makes a programs, other types of programs that ments. lead to employment as a doctor of Annualized Monetized $0. significant contribution to the U.S. Transfers. economy through payment of taxes or osteopathic medicine, doctor or medicine, or both; From Whom To Federal Government use of American products, materials or • Whom? To Student Loan labor * * *’’ ‘‘Small organizations,’’ are Provide copies of the affiliation Borrowers. further defined as any ‘‘not-for-profit agreements with hospitals and clinics enterprise that is independently owned that it is required to have as a part of Clarity of the Regulations and operated and not dominant in its any application for initial certification field.’’ For the purposes of the or recertification to participate in the Executive Order 12866 and the Title IV, HEA programs. Presidential memorandum on ‘‘Plain Regulatory Flexibility Act analysis, the foreign institutions would not fall Proposed § 600.20(c)(5) would require Language in Government Writing’’ a foreign graduate medical school that require each agency to write regulations within the definition of small businesses or small organizations based adds a location that offers all or a that are easy to understand. portion of the school’s core clinical The Secretary invites comments on upon this definition of ‘‘small business concern.’’ training or required clinical rotations, to how to make these proposed regulations apply to the Secretary and wait for ‘‘ ’’ easier to understand, including answers The definition of small entity also approval if it wishes to provide Title IV, ‘‘ to questions such as the following: includes small governmental HEA program funds to the students at • ’’ ‘‘ Are the requirements in the jurisdictions, which includes school that location, except for those locations proposed regulations clearly stated? districts with a population less than that are included in the accreditation of • ’’ ‘‘ Do the proposed regulations contain 50,000. The definition of small a medical program accredited by the ’’ technical terms or other wording that governmental jurisdictions is not LCME. interferes with their clarity? applicable to this rule. The Secretary While we recognize that there would • Does the format of the proposed invites comments from small be burden assessed under regulations (grouping and order of institutions and other affected entities §§ 600.20(a)(3) and 600.20(c)(5), we do sections, use of headings, paragraphing, as to whether they believe the proposed not anticipate either an initial eligibility etc.) aid or reduce their clarity? changes would have a significant application or an application to expand • Would the proposed regulations be economic impact on them and, if so, eligibility at this time. easier to understand if we divided them requests evidence to support that belief. We estimate that 58 public into more (but shorter) sections? (A Paperwork Reduction Act institutions would take .58 hours (35 ‘‘section’’ is preceded by the symbol ‘‘§ ’’ minutes) per institution to submit a and a numbered heading; for example, Sections 600.20, 600.21, 600.54, reapplication, which would increase § 601.30.) 600.55, 600.56, 600.57, 668.13, 668.23, burden by 34 hours. We estimate that 10 • Could the description of the and 668.171 contain information private nonprofit institutions would proposed regulations in the collection requirements. Under the take .58 hours (35 minutes) per ‘‘Supplementary Information’’ section of Paperwork Reduction Act of 1995 (44 institution to submit a reapplication, this preamble be more helpful in U.S.C. 3507(d)), the Department has which would increase burden by 6 making the proposed regulations easier submitted a copy of these sections to hours. We estimate that 3 for-profit to understand? If so, how? OMB for its review. institutions would take .58 hours (35 • What else could we do to make the Section 600.20—Application minutes) per institution to submit a proposed regulations easier to Procedures for Establishing, reapplication, which would increase understand? Reestablishing, Maintaining, or burden by 2 hours. There would be a To send any comments that concern Expanding Institutional Eligibility and total 42 hours of burden associated with how the Department could make these Certification § 600.20(b)(3) in OMB Control Number proposed regulations easier to 1845–0012. understand, see the instructions in the Proposed § 600.20(a)(3) and ADDRESSES section of this preamble. § 600.20(b)(3) would provide that, for Section 600.21—Updating Application initial certification or for recertification, Information Regulatory Flexibility Act Certification a foreign graduate medical school (i.e., Proposed § 600.21(a)(10) would The Secretary certifies that these a freestanding foreign graduate medical require, if a foreign graduate medical proposed regulations would not have a school or a foreign institution that school adds a location that offers all or significant economic impact on a includes a foreign graduate medical a portion of the school’s clinical substantial number of small entities. school) be required to— rotations that are not required, that the

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school notify the Department no later are U.S. citizens, nationals, or eligible report and would increase burden by 73 than 10 days after the location is added, permanent residents to enable the hours. We estimate that 10 private except for those locations that are school to comply with the collection nonprofit institutions would require included in the accreditation of a and submission requirements in 1.25 hours (1 hour 15 minutes) to create medical program accredited by the proposed § 600.55(d) for Medical this annual report and would increase LCME, or those that are not used College Admission Test (MCAT) scores, burden 13 hours. We estimate that 3 for- regularly, but instead are chosen by residency placement, and U.S. Medical profit institutions would require 1.25 individual students who take no more Licensing Examination (USMLE) scores. hours (1 hour 15 minutes) to create this than two electives at the location for no We estimate that 58 public annual report and would increase more than a combined total of eight institutions would take .50 hours (30 burden by 4 hours. Therefore, the total weeks. This requirement mirrors the minutes) to develop this consent form proposed burden increase would be 90 requirement of proposed § 600.20(c)(5). and would increase burden by 29 hours. hours associated with § 600.55(d) in We estimate that 6 public institutions We estimate that 5 private nonprofit OMB 1845–NEWA. would take .17 hours (10 minutes) per institutions would take .50 hours (30 Proposed § 600.55(e)(2) would require institution to fulfill the reporting minutes) to develop this consent form a foreign graduate medical school to requirement, which would increase and would increase burden by 5 hours. notify its accrediting body within one burden by 1 hour. We estimate that 1 We estimate that 3 for-profit institutions year of any material changes in (1) the private nonprofit institution would take would take .50 hours (30 minutes) to educational programs, including .17 hours (10 minutes) to fulfill the develop this consent form and would changes in clinical training programs; reporting requirement, which would increase burden by 2 hours. We estimate and (2) the overseeing bodies and (3) the increase burden by 10 minutes. We that 2,800 individuals would take .08 formal affiliation agreements with estimate 1 for-profit institution would hours (5 minutes) to complete this hospitals and clinics. take .17 hours (10 minutes) to fulfill the consent form and would increase We estimate that 15 public reporting requirement, which would burden by 224 hours. Therefore, the institutions would require .82 hours (50 increase burden by 10 minutes. total proposed burden increase would minutes) to complete the accrediting Therefore, the proposed total increase in be 260 hours associated with agency clinical training notifications burden would be 1 hour and 20 minutes § 600.55(c)(2) in OMB 1845–NEWA. and would increase burden by 12 hours. associated with § 600.21(a)(10) in OMB Proposed § 600.55(d) would require a We estimate that 3 private nonprofit Control Number 1845–0012. foreign graduate medical school to institutions would require .82 hours (50 obtain, at its own expense, and by minutes) to complete the accrediting Section 600.54—Criteria for September 30 of each year submit to its agency clinical training notifications Determining Whether a Foreign accrediting authority for all students and would increase burden by 3 hours. Institution Is Eligible To Apply To who are U.S. citizens, nationals, or We estimate that 1 for-profit institution Participate in the FFEL Programs eligible permanent residents: (1) MCAT would require .82 hours (50 minutes) to Under proposed § 600.54(d)(3)(ii), a scores for students admitted during the complete the accrediting agency clinical foreign institution would have to preceding award year and the number of training notifications and would demonstrate to the satisfaction of the times each student took the exam; and increase burden by 1 hour. Therefore, Secretary (who would make program- (2) the percentage of students graduating the total proposed burden increase by-program determinations of during the preceding award year who would be 16 hours associated with comparability) that the amount of are placed in an accredited U.S. medical § 600.55(e) in OMB 1845–NEWA. academic work required by a program it residency. A school would have to Proposed § 600.55(g)(1) would require seeks to qualify as eligible as at least a submit the data on MCAT scores and a foreign graduate medical school to one-academic-year training program is placement in a U.S. residency program apply the existing satisfactory academic equivalent to an academic year as to the Department only upon request. In progress regulations in § 668.16(e) for defined in § 668.3. addition, proposed § 600.55(d) would establishing a maximum timeframe in We estimate that 93 public require a foreign graduate medical which a student must complete their institutions would take .17 (10 minutes) school to obtain, at its own expense and educational program and require that a to demonstrate the comparability of the by September 30 of each year submit to student complete their educational academic work and would increase the Department, unless the Department program within 150 percent of the burden by 16 hours. We estimate that 33 notifies schools that it will receive the published length of the educational private institutions would take .17 (10 information directly from the ECFMG, program. In addition, proposed minutes) to demonstrate the or other responsible third parties, § 600.55(g)(2) would require a foreign comparability of the academic work and USMLE scores earned during the graduate medical school to document would increase burden by 6 hours. preceding award year on the first the educational remediation it provides Therefore, the proposed total increase in attempt by at least each student, and to assist students in making satisfactory burden would be 22 hours associated each student who graduated during the academic progress. with § 600.54(d)(3)(ii) in OMB 1845– three preceding years, and the date each We estimate that 58 public NEWA. student/graduate took each test, institutions would require 2.5 hours including any failed tests. The USMLE (2 hours 30 minutes) to update the Section 600.55—Additional Criteria for scores submitted would have to be satisfactory academic policy and Determining Whether a Foreign disaggregated by step/test for Step 1, document remediation provided to Graduate Medical School Is Eligible To Step 2–Clinical Skills (Step 2–CS), and student and would increase burden by Apply To Participate in the Title IV, Step 2–Clinical Knowledge (Step 2–CK), 145 hours. We estimate that 10 for HEA Programs and by attempt. A school would not be private nonprofit institutions would Proposed § 668.55(c)(2) would require required to submit data on the USMLE require 2.5 hours (2 hours 30 minutes) a foreign graduate medical school to Step 3. to update the satisfactory academic determine the consent requirements for, We estimate that 58 public policy and document remediation and require the necessary consents of, institutions would require 1.25 hours (1 provided to student and would increase all students accepted for admission who hour 15 minutes) to create this annual burden by 25 hours. We estimate that 3

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for-profit institutions would require 2.5 Section 600.57—Additional Criteria for under the terms and conditions hours (2 hours 30 minutes) to update Determining Whether a Foreign specified in the promissory note. the satisfactory academic policy and Nursing School Is Eligible To Apply To While burden would normally be document remediation provided to Participate in the FFEL Program associated with notification and collection activity, because there is no student and would increase burden by The proposed regulations would add history of Federal borrowing for 7 hours and 30 minutes. The total a new § 600.57 specifying additional attendance at these schools and due to proposed burden for increase would be Title IV, HEA program eligibility criteria the extended period of time prior to a 177 hours and 30 minutes associated for foreign nursing schools. These student borrower defaulting on a Title with § 600.55(g)(1) and (2) in OMB criteria include § 600.57(a)(6)(i), where IV, HEA loan at a newly approved 1845–NEW2. the school must determine the consent foreign nursing school during the first Finally, proposed § 600.55(g)(3) requirements for, and require the year after the implementation of the would require a foreign graduate necessary consents of, all students final regulations, we believe that it medical school to publish all the accepted for admission who are U.S. would be inappropriate to project languages in which instruction is citizens, nationals, or eligible burden to schools and individuals at offered. permanent residents, to enable the this time. We estimate that 58 public school to comply with the requirements institutions would require .33 hours (20 for collection and submission of Section 668.13—Certification minutes) to publish the languages in National Council Licensure Procedures which instruction is provided Examination for registered Nurses The proposed regulations would increasing burden by 19 hours. We (NCLEX–RN) results or pass rates. amend § 668.13(b)(1) to specify that the estimate that 10 private nonprofit We estimate that 3 new nursing period of participation for a private, for- institutions would require .33 hours (20 institutions would require .50 hours (30 profit foreign institution expires three minutes) to publish the languages in minutes) to develop the consent form years after the date the institution is which instruction is provided increasing burden by 1 hour and 30 certified by the Department, rather than increasing burden by 3 hours. We minutes. We estimate that 1,200 the current six years. estimate that 3 for-profit institutions individuals would require .08 hours (10 While the duration of the approval would require .33 hours (20 minutes) to minutes) to respond to this consent form process is reduced from six years to publish the languages in which and increasing burden by 96 hours in three years and, therefore, the time instruction is provided increasing OMB Control Number 1845–NEWA. associated with the submission for burden by 1 hour. Therefore, the total The foreign nursing school eligibility recertification will be filed more often, proposed burden increase would be 23 also includes § 600.57(a)(6)(ii) where an this proposed change in the regulations hours associated with § 600.55(g)(3) in institution must annually, at its own does not represent a substantive impact OMB 1845–NEWA. expense, obtain all results on the on the amount of annual burden NCLEX–RN achieved by students and In total, we estimate that proposed generated by these regulations. We do graduates who are U.S. citizens, § 600.55 would increase by 389 hours in not estimate a change in the burden as nationals, or eligible permanent OMB 1845–NEWA, and 177 hours and a result of the proposed regulations to residents, together with the dates the 30 minutes in OMB 1845–NEW2. OMB 1845–0022. student has taken the examination Section 600.56—Additional Criteria for (including any failed examinations) and Section 668.23—Compliance Audits Determining Whether a Foreign provide the results to the Department. and Audited Financial Statements Veterinary School Is Eligible To Apply As an alternative to obtaining the The proposed regulation in To Participate in the FFEL Programs NCLEX results individually, the school § 668.23(h)(1) would revise financial may obtain a report or reports from the statement submission requirements for Proposed § 600.56(a)(4) would require National Council of State Boards of foreign institutions receiving Title IV, a foreign veterinary school to be Nursing (NCSB), or an NCSB affiliate or HEA program funds in the most recently accredited or provisionally accredited NCSB contractor, reflecting the completed fiscal year. by an organization acceptable to the percentage of the school’s students and • In § 668.23(h)(1)(i)—For a public or Secretary. Proposed § 600.56(a)(4) graduates taking the NCLEX–RN in the nonprofit foreign institution that would also specify that the requirement preceding year who passed the received less than $500,000 in U.S. Title for accreditation or provisional examination, or the data from which the IV, HEA program funds during the accreditation does not take effect until percentage could be derived, and institution’s most recently completed July 1, 2015. provide the report to the Department. fiscal year, the audited financial The Department has delayed the We estimate that 3 new nursing statements submission would be effective date of the accreditation institutions would require 1.5 hours waived, unless the institution is in its requirement until July 1, 2015. This (1 hour 30 minutes) to compile this initial provisional period of allows foreign veterinary schools that annual report submission increasing participation and received Title IV, HEA are currently in the Title IV, HEA burden by 4 hours 30 minutes in OMB program funds during that year, in programs approximately five years after Control Number 1845–NEWA. In total, which case the institution must submit, final regulations are published to obtain we estimate there would be 102 hours in English, audited financial statements accreditation from an acceptable of burden associated with § 600.57(a)(6) prepared in accordance with the accrediting agency. Therefore, no in OMB Control Number 1845–NEWA. generally accepted accounting burden assessment has been made at In addition, proposed § 600.57(c) principles of the institution’s home this time, but the issue will be reviewed would specify that after a school country. closer to the effective date of this reimburses the Department for the cost • In § 668.23(h)(1)(iii)(A)—For a section of the regulations thereby of a loan default, the loan would be public or nonprofit foreign institution enabling the Department to use a more assigned to the school. The borrower that received $500,000 or more in U.S. accurate number of participating would remain liable to the school for Title IV, HEA program funds, but less veterinary schools in its assessment. the outstanding balance of the loan, than $3,000,000 in U.S. Title IV, HEA

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program funds during its most recently Proposed § 668.23(h)(2) would prepared in accordance with proposed completed fiscal year, the institution separate foreign institutions into two § 668.23(h)(2)(ii) for any preceding fiscal would be allowed to submit for that groups, establishing new compliance year or years in which the foreign year, in English, audited financial audit requirements for foreign institution received less than $500,000 statements prepared in accordance with institutions based upon whether the in U.S. Title IV, HEA program funds. the generally accepted accounting institution received less than $500,000 We estimate 90 public institutions principles of the institution’s home or $500,000 or more in U.S. Title IV, would require 40 hours to submit a full country in lieu of financial statements HEA program funds during the compliance audit increasing burden by prepared in accordance with U.S. institution’s most recently completed 3,600 hours. We estimate 29 private GAAP. fiscal year. nonprofit institutions would require 40 • In § 668.23(h)(1)(iii)(B)—For a For foreign institutions that receive hours to submit a full compliance audit public or nonprofit foreign institution less than $500,000 per year in U.S. Title increasing burden by 1,160 hours. We that received at least $3,000,000 but less IV, HEA program funds, under proposed estimate 4 for-profit institutions would than $5,000,000 in U.S. Title IV, HEA § 668.23(h)(2)(ii) and (iii) they would be require 40 hours to submit a full program funds during its most recently required to submit compliance audits compliance audit increasing burden by completed fiscal year, the institution under an alternative compliance audit 160 hours for a total of 4,920 hours. would be required to submit once every performed in accordance with the audit Collectively, we estimate that there three years audited financial statements guide from the Department’s Office of would be 13,670 hours of increased prepared in accordance with the Inspector General. The alternative burden associated with § 668.23(h)(2)(i) generally accepted accounting compliance audit is performed as an in OMB Control 1845–0038. principles of both the institution’s home agreed-upon procedures attestation In total, we estimate that the burden country and U.S. GAAP, but for the two engagement, and the standard related to proposed § 668.23(h) would years in between would be allowed to compliance audit is performed as an increase by 17,920 hours in OMB submit, in English, audited financial examination-level attestation Control Number 1845–0038. statements prepared in accordance with engagement. An alternative compliance Although audited financial statements the generally accepted accounting audit is an agreed-upon procedures and compliance audits have long been principles of the institution’s home attestation engagement, which consists required of foreign schools, no separate of specific procedures performed on a country in lieu of financial statements calculation of the burden of those subject matter and is substantially prepared in accordance with U.S. requirements had been done until now. narrower in scope than a standard GAAP. As a result, by and large the burdens compliance audit, which is an • In § 668.23(h)(1)(ii)—For a public or estimated are not new. What is new is examination level attestation. nonprofit foreign institution that The proposed regulations would the reduction in already-existing received $5,000,000 or more in U.S. require an annual submission of the burdens that would result from the Title IV, HEA program funds during its compliance audit, except that, under proposed regulations if finalized. most recently completed fiscal year, and certain conditions as described in the In relation to the proposed for any for-profit foreign institution, the following paragraphs, an institution requirement to submit audited financial institution would be required to submit would submit a compliance audit statements, if the proposed regulations for that year audited financial annually for two consecutive years, (allowing for alternate submissions for statements prepared in accordance with then, if notified by the Department, institutions with funding over $500,000 the generally accepted accounting would be permitted to submit a in U.S. Title IV, HEA program funds) principles of both the institution’s home cumulative compliance audit every had not been offered, there would have country and U.S. GAAP. three years thereafter as long as the been 123 foreign institutions required to We estimate that 15 public institution continued to receive less submit annually audited financial institutions would require 35 hours for than $500,000 in U.S. Title IV funds statements prepared in accordance with the translation of financial statements to each fiscal year being audited. U.S. GAAP at a burden of 12,300 hours English increasing burden by 525 hours. We anticipate 269 public institutions (123 institutions × 100 hours = 12,300 We estimate that 15 private institutions would require 25 hours to provide the hours). The proposed regulations reduce would require 35 hours for the alternate compliance audit increasing that burden by 9,100 hours (proposed translation of financial statements to burden by 6,725 hours. We anticipate 81 burden of 3,200 hours subtracted from English increasing burden by 525 hours private institutions would require 25 estimated burden of 12,300 hours for a total of 1,050 hours. hours to provide the alternate required under current regulations). We estimate 20 public institutions compliance audit increasing burden by In relation to the proposed would require 100 hours for the 2,025 hours. Collectively we anticipate requirement to submit a compliance preparation of the U.S. GAAP financial a total of 8,750 hours of increased audit, if the proposed regulations had statement increasing burden by 2,000 burden for § 668.23(h)(2)(ii) and (iii) in not been offered, there would have been hours. We estimate that 8 private OMB Control Number 1845–0038. an annual standard compliance audit nonprofit institutions would require 100 For foreign institutions that receive submission requirement burden of hours for the preparation of the U.S. $500,000 or more per year in U.S. Title 17,500 hours over two years (350 GAAP financial statement increasing IV, HEA program funds, as in the institutions × 25 hours annual burden × burden by 800 hours. We estimate that current regulations, under proposed 2 years) that foreign institutions four for-profit institutions require 100 § 668.23(h)(2)(i) they would be required disbursing less than $500,000 in U.S. hours for the preparation of the U.S. to submit annual compliance audits Title IV, HEA program funds would GAAP financial statement increasing using the standard audit procedures for have had to complete. The proposed burden by 400 hours for a total of 3,200 foreign institutions set out in the audit regulations decrease burden by allowing hours. Collectively, we estimate that guide issued by the Office of Inspector for submission of alternative there would be 4,250 hours of burden General. This compliance audit would compliance audits once every three associated with proposed § 668.23(h)(1) be submitted together with an years upon notification from the in OMB Control Number 1845–0038. alternative compliance audit or audits Department.

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Section 668.171—General (Subpart L— full faith and credit of the country or financial responsibility standards for Financial Responsibility) other government entity. A foreign public foreign institutions, it would not public institution would not meet this excuse the institution from required Proposed § 668.171 would consider a standard of financial responsibility if it submissions of audited financial public foreign institution to be was in violation of any past statements. In addition, if a government financially responsible if the institution: performance requirements in § 668.174. entity provided full faith and credit (1) Notifies the Secretary that it is If a foreign public institution did not backing, the entity would be held liable designated as a public institution by the meet the new requirements, its financial for any Title IV, HEA program liabilities country or other government entity that responsibility would be determined that were not paid by the institution. has the legal authority to make that under the general requirements of We estimate 13 public institutions designation; and (2) provides financial responsibility, including the would require 16 hours to obtain documentation from an official of that application of the equity, primary documentation from the applicable country or other government entity reserve, and net income ratios. Although government entity at an increase in confirming that the institution is a the full faith and credit provision would burden of 208 hours in OMB Control public institution and is backed by the provide an alternate way of meeting the Number 1845–0022.

COLLECTION OF INFORMATION

Regulatory section Information collection Collection

600.20—Application procedures for estab- This proposed regulation change would add OMB 1845–0012. The burden would increase lishing, reestablishing, maintaining, or ex- information that must be collected to deter- by 42 hours. panding institutional eligibility and certification. mine the eligibility of foreign graduate med- This regulatory change may require changes ical schools to participate in Title IV pro- to the form, but they cannot be completed grams. until the language of the final rule is deter- mined. 600.21—Updating application information ...... This proposed regulation would identify when OMB 1845–0012. The burden would increase a foreign graduate medical school must no- by 1 hour and 20 minutes. tify the Department of specific changes in This regulatory change may require changes locations used by the school. to the form, but they cannot be completed until the language of the final rule is deter- mined. 600.54—Criteria for determining whether a for- This proposed regulation would require that OMB 1845–NEWA. This would be a new col- eign institution is eligible to participate in the the foreign institution demonstrate that its lection. A separate 60-day Federal Reg- FFEL programs. academic work for training program of at ister notice will be published to solicit com- least one-academic-year is equivalent to an ment. The burden would increase by 22 academic year as defined for domestic in- hours. stitutions. 600.55—Additional criteria for determining This proposed regulation would require the OMB 1845–NEWA. This would be a new col- whether a foreign graduate medical school is schools to provide a consent form allowing lection. A separate 60-day Federal Reg- eligible to apply to participate in the Title IV, the school to receive a copy of the stu- ister notice will be published to solicit com- HEA programs. dents’ MCAT score; would require a med- ment. The burden would increase by 389 ical school to produce annually and to pro- hours. vide to its accrediting agency a report with data regarding its students who are US citi- zens, nationals, or eligible permanent resi- dents, some of which data would be re- quired to be submitted to the Department on an annual basis; and would require the school to notify their accrediting body within one year of material changes to its edu- cational program and formal affiliation agreements. This section also would re- quire schools to identify the languages in which it provides instruction. 600.55(g)(2)—Additional criteria for determining This proposed regulation would require the OMB 1845–NEW2. This would be a new col- whether a foreign graduate medical school is foreign graduate medical schools to expand lection. A separate 60-day Federal Reg- eligible to apply to participate in the Title IV, the satisfactory academic progress policy ister notice will be published to solicit com- HEA programs. requirements to include foreign graduate ment. The burden would increase by 177 medical schools and calculations of max- hours and 30 minutes. imum timeframes to complete the program, and document any student remediation re- garding SAP. 600.57—Additional criteria for determining This proposed regulation would require the OMB 1845–NEWA. This would be a new col- whether a foreign nursing school is eligible to schools to provide a consent form allowing lection. A separate 60-day Federal Reg- apply to participate in the FFEL program. the school to receive a copy of the stu- ister notice will be published to solicit com- dents’ NCLEX–RN results or pass rate and ment. The burden would increase by 102 would require a nursing school to annually hours. produce and provide to the Department a report with data regarding the results of the NCLEX–RN exam taken by its students and graduates.

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COLLECTION OF INFORMATION—Continued

Regulatory section Information collection Collection

668.13—Certification procedures ...... The proposed regulation would change the OMB 1845–0022. We do not anticipate a certification time frame for for-profit schools change in burden. from 6 to 3 years. 668.23(h)(1)—Compliance audits and audited The proposed regulation would change the re- OMB 1845–0038. The burden would increase financial statements. quirements of institutions for submission of by 17,920 hours. audited financial statements to the Depart- ment and would change the requirements of institutions for submission of compliance audits to the Department. 668.171—General (Subpart L—Financial Re- The proposed regulation would provide an al- OMB 1845–0022. The burden would increase sponsibility). ternate method to show financial responsi- by 208 hours. bility by showing that it is a public institution designated by the proper governing author- ity in the country and by providing docu- mentation of the full faith and credit of that country.

If you want to comment on the Intergovernmental Review and recordkeeping requirements, proposed information collection Student aid, Vocational education. requirements, please send your These programs are not subject to 34 CFR Part 668 comments to the Office of Information Executive Order 12372 and the and Regulatory Affairs, OMB, Attention: regulations in 34 CFR part 79. Administrative practice and Desk Officer for U.S. Department of Assessment of Educational Impact procedure, Aliens, Colleges and Education. Send these comments by universities, Consumer protection, e-mail to [email protected] In accordance with section 411 of the Grant programs—education, Loan or by fax to (202) 395–6974. You may General Education Provisions Act, 20 programs—education, Reporting and also send a copy of these comments to U.S.C. 1221e–4, the Secretary recordkeeping requirements, Selective the Department contact named in the particularly requests comments on Service System, Student aid, Vocational ADDRESSES section of this preamble. whether these proposed regulations education. would require transmission of We consider your comments on these information that any other agency or 34 CFR Part 682 proposed collections of information in— authority of the United States gathers or Administrative practice and • Deciding whether the proposed makes available. procedure, Colleges and universities, collections are necessary for the proper Electronic Access to This Document: Education, Loan programs—education, performance of our functions, including You can view this document, as well as Reporting and recordkeeping whether the information will have all other Department of Education requirements, Student aid. practical use; documents published in the Federal Dated: July 12, 2010. • Evaluating the accuracy of our Register, in text or Adobe Portable Arne Duncan, estimate of the burden of the proposed Document Format (PDF) on the Internet collections, including the validity of our at the following site: http://www.ed.gov/ Secretary of Education. methodology and assumptions; news/fedregister. To use PDF you must For the reasons discussed in the • Enhancing the quality, usefulness, have Adobe Acrobat Reader, which is preamble, the Secretary proposes to and clarity of the information we available free at this site. If you have amend parts 600, 668, and 682 of title collect; and questions about using PDF, call the U.S. 34 of the Code of Federal Regulations as • Government Printing Office (GPO), toll follows: Minimizing the burden on those free, at 1–888–293–6498; or in the who must respond. This includes Washington, DC, area at (202) 512–1530. PART 600—INSTITUTIONAL exploring the use of appropriate ELIGIBILITY UNDER THE HIGHER automated, electronic, mechanical, or Note: The official version of this document EDUCATION ACT OF 1965, AS other technological collection is the document published in the Federal Register. Free Internet access to the official AMENDED techniques or other forms of information edition of the Federal Register and the Code 1. The authority citation for part 600 technology (e.g., permitting electronic of Federal Regulations is available on GPO submission of responses). Access at: http://www.gpoaccess.gov/nara/ continues to read as follows: OMB is required to make a decision index.html. Authority: 20 U.S.C. 1001, 1002, 1003, concerning the collections of 1088, 1091, 1094, 1099b, and 1099c, unless Catalog of Federal Domestic Assistance otherwise noted. information contained in these Numbers: 84.063 Federal Pell Grant Program; proposed regulations between 30 and 60 84.033 Federal Work-Study Program; 84.379 2. Section 600.2 is amended by days after publication of this document TEACH Grant Program; 84.069 LEAP). revising paragraphs (1) and (2) of the in the Federal Register. Therefore, to definition of Nonprofit institution. ensure that OMB gives your comments List of Subjects The revision reads as follows: full consideration, it is important that 34 CFR Part 600 OMB receives the comments within 30 § 600.2 Definitions. days of publication. This does not affect Colleges and universities, Foreign * * * * * the deadline for your comments to us on relations, Grant programs—education, Nonprofit institution: An institution the proposed regulations. Loan programs—education, Reporting that—

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(1)(i) Is owned and operated by one or that includes a foreign graduate medical (c) * * * more nonprofit corporations or school, must include in its application (5) For a freestanding foreign graduate associations, no part of the net earnings to participate— medical school, or a foreign institution of which benefits any private (i)(A) A list of all educational sites that includes a foreign graduate medical shareholder or individual; and where they are located, including school, add a location that offers all or (ii) Is legally authorized to operate as all sites at which its students receive a portion of the school’s core clinical a nonprofit organization by each State in clinical training, except those clinical training or required clinical rotations, which it is physically located; and training sites that are not used regularly, except for those locations that are (iii) Is determined by the U.S. Internal but instead are chosen by individual included in the accreditation of a Revenue Service to be an organization to students who take no more than two medical program accredited by the which contributions are tax-deductible electives at the location for no more Liaison Committee on Medical in accordance with section 501(c)(3) of than a total of eight weeks; and Education (LCME); or the Internal Revenue Code (26 U.S.C. (B) The type of clinical training (core, * * * * * 501(c)(3)); or required clinical rotation, not required 4. Section 600.21 is amended by (2) For a foreign institution— clinical rotation) offered at each site adding paragraph (a)(10) to read as (i) An institution that is owned and listed on the application in accordance follows: operated only by one or more nonprofit with paragraph (a)(3)(i)(A) of this corporations or associations; and section; and § 600.21 Updating application information. (ii)(A) If a recognized tax authority of (ii) Whether the school offers— (a) * * * the institution’s home country is (A) Only post-baccalaureate/ (10) For a freestanding foreign recognized by the Secretary for purposes equivalent medical programs, as defined graduate medical school, or a foreign of making determinations of an in § 600.52; institution that includes a foreign institution’s nonprofit status for title IV (B) Other types of programs that lead graduate medical school, the school purposes, is determined by that tax to employment as a doctor of adds a location that offers all or a authority to be a nonprofit educational osteopathic medicine or doctor of portion of the school’s clinical rotations institution; or medicine; or that are not required, except for those (B) If no recognized tax authority of (C) Both; and that are included in the accreditation of the institution’s home country is (iii) Copies of the formal affiliation a medical program accredited by the recognized by the Secretary for purposes agreements with hospitals or clinics Liaison Committee on Medical of making determinations of an providing all or a portion of a clinical Education (LCME), or that are not used institution’s nonprofit status for title IV training program required under regularly, but instead are chosen by purposes, the foreign institution § 600.55(e)(1). individual students who take no more demonstrates to the satisfaction of the (b) * * * than two electives at the location for no Secretary that it is a nonprofit (3) A freestanding foreign graduate more than a total of eight weeks. educational institution. medical school, or a foreign institution * * * * * * * * * * that includes a foreign graduate medical 5. Section 600.51 is amended by 3. Section 600.20 is amended by: school, must include in its reapplication revising paragraph (c) to read as follows: A. Revising paragraph (a). to participate— § 600.51 Purpose and scope. B. Adding a new paragraph (b)(3). (i)(A) A list of all educational sites C. In paragraph (c)(4), removing the and where they are located, including * * * * * word ‘‘or’’. all sites at which its students receive (c) A foreign institution must comply D. Redesignating paragraph (c)(5) as clinical training, except those clinical with all requirements for eligible and paragraph (c)(6). training sites that are not used regularly, participating institutions except— (1) To the extent those provisions are E. Adding a new paragraph (c)(5). but instead are chosen by individual inconsistent with this subpart or other The revision and additions read as students who take no more than two provisions of these regulations or the follows: electives at the location for no more HEA specific to foreign institutions; or than a total of eight weeks; and § 600.20 Application procedures for (2) When the Secretary, through a (B) The type of clinical training (core, establishing, reestablishing, maintaining, or notice in the Federal Register, identifies required clinical rotation, not required expanding institutional eligibility and specific provisions as inapplicable to clinical rotation) offered at each site certification. foreign institutions. (a) Initial eligibility application. listed on the application in accordance with paragraph (b)(3)(i)(A) of this * * * * * (1) An institution that wishes to 6. Section 600.52 is amended by: establish its eligibility to participate in section; and (ii) Whether the school offers— A. Adding, in alphabetical order, a any HEA program must submit an definition of Associate degree school of application to the Secretary for a (A) Only post-baccalaureate/ equivalent medical programs, as defined nursing. determination that it qualifies as an B. Adding, in alphabetical order, a in § 600.52; eligible institution under this part. definition of Clinical training. (2) If the institution also wishes to be (B) Other types of programs that lead C. Adding, in alphabetical order, a certified to participate in the title IV, to employment as a doctor of definition of Collegiate school of HEA programs, it must indicate that osteopathic medicine or doctor of nursing. intent on the application, and submit all medicine; or D. Adding, in alphabetical order, a the documentation indicated on the (C) Both; and definition of Diploma school of nursing. application to enable the Secretary to (iii) Copies of the formal affiliation E. Revising the definition of Foreign determine that it satisfies the relevant agreements with hospitals or clinics graduate medical school. certification requirements contained in providing all or a portion of a clinical F. Revising the definition of Foreign 34 CFR part 668, subparts B and L. training program required under institution. (3) A freestanding foreign graduate § 600.55(e)(1). G. Adding, in alphabetical order, a medical school, or a foreign institution * * * * * definition of Foreign nursing school.

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H. Adding, in alphabetical order, a (ii) Except as provided with respect to Foreign nursing school: A foreign definition of Foreign veterinary school. clinical training offered under institution (or, for a foreign institution I. Adding, in alphabetical order, a § 600.55(h)(1), § 600.56(b), or that is a university, a component of that definition of National Committee on § 600.57(a)(2)— foreign institution) that is an associate Foreign Medical Education and (A) Has no U.S. location; degree school of nursing, a collegiate Accreditation (NCFMEA). (B) Has no written arrangements, school of nursing, or a diploma school J. Revising the definition of Passing within the meaning of § 668.5, with of nursing. A reference in these score. institutions or organizations located in regulations to a foreign nursing school K. Adding, in alphabetical order, a the United States for students enrolling as ‘‘freestanding’’ pertains solely to those definition of Post-baccalaureate/ at the foreign institution to take courses schools that qualify by themselves as equivalent medical program. from institutions located in the United foreign institutions and not to schools The additions and revisions read as States; that are components of universities that follows: (C) Does not permit students to enroll qualify as foreign institutions. in any course offered by the foreign Foreign veterinary school: A foreign § 600.52 Definitions. institution in the United States, institution (or, for a foreign institution Associate degree school of nursing: A including research, work, internship, that is a university, a component of that school that provides primarily or externship, or special studies within the foreign institution) having as its sole exclusively a two-year program of United States, except that independent mission providing an educational postsecondary education in professional research done by an individual student program that leads to the degree of nursing leading to a degree equivalent to in the United States for not more than doctor of veterinary medicine, or the an associate degree in the United States. one academic year is permitted, if it is equivalent. A reference in these Clinical training: The portion of a conducted during the dissertation phase regulations to a foreign veterinary graduate medical education program of a doctoral program under the school as ‘‘freestanding’’ pertains solely that counts as a clinical clerkship for guidance of faculty, and the research to those schools that qualify by purposes of medical licensure can only be performed in a facility in themselves as foreign institutions and comprising core, required clinical the United States; not to schools that are components of rotation, and not required clinical (iii) Is legally authorized by the universities that qualify as foreign rotation. education ministry, council, or institutions. Collegiate school of nursing: A school equivalent agency of the country in National Committee on Foreign that provides primarily or exclusively a which the institution is located to Medical Education and Accreditation minimum of a two-year program of provide an educational program beyond (NCFMEA): The operational committee postsecondary education in professional the secondary education level; of medical experts established by the nursing leading to a degree equivalent to (iv) Awards degrees, certificates, or Secretary to determine whether the a bachelor of arts, bachelor of science, other recognized educational credentials medical school accrediting standards or bachelor of nursing in the United in accordance with § 600.54(d) that are used in other countries are comparable States, or to a degree equivalent to a officially recognized by the country in to those applied to medical schools in graduate degree in nursing in the United which the institution is located; and the U.S., for purposes of evaluating the States, and including advanced training (v) For any program designed to eligibility of accredited foreign graduate related to the program of education prepare the student for employment in medical schools to participate in the provided by the school. a recognized occupation, with or title IV, HEA programs. Diploma school of nursing: A school without licensure, provides a credential, Passing score: The minimum passing affiliated with a hospital or university, including a degree, that— score as defined by the Educational or an independent school, which (A) Satisfies the educational Commission for Foreign Medical provides primarily or exclusively a two- requirements in the country in which Graduates (ECFMG), or on the National year program of postsecondary the institution is located for entry into Council Licensure Examination for education in professional nursing that occupation, including educational Registered Nurses (NCLEX–RN), as leading to the equivalent of a diploma requirements for licensure; and applicable. in the United States or to equivalent (B) Satisfies the educational Post-baccalaureate/equivalent indicia that the program has been requirements, including requirements medical program: A program offered by satisfactorily completed. for licensure, for entry into that a foreign graduate medical school that Foreign graduate medical school: A occupation in the United States; or requires, as a condition of admission, foreign institution (or, for a foreign (2) If the educational enterprise that its students have already completed institution that is a university, a enrolls students both within a State and their non-medical undergraduate component of that foreign institution) outside a State, and the number of studies and that consists solely of having as its sole mission providing an students who would be eligible to courses and training leading to educational program that leads to a receive title IV, HEA program funds employment as a doctor of medicine or degree of medical doctor, doctor of attending locations outside a State is at doctor of osteopathic medicine. osteopathic medicine, or the equivalent. least twice the number of students enrolled within a State, the locations * * * * * A reference in these regulations to a 7. Section 600.54 is revised to read as outside a State must apply to participate foreign graduate medical school as follows: ‘‘freestanding’’ pertains solely to those as one or more foreign institutions and schools that qualify by themselves as must meet all requirements of paragraph § 600.54 Criteria for determining whether a foreign institutions and not to schools (1) of this definition, and the other foreign institution is eligible to apply to that are components of universities that requirements of this part. For the participate in the FFEL programs. qualify as foreign institutions. purposes of this paragraph, an The Secretary considers a foreign Foreign institution: educational enterprise consists of two or institution to be comparable to an (1) For the purposes of students who more locations offering all or part of an eligible institution of higher education receive title IV aid, an institution that— educational program that are directly or in the United States and eligible to (i) Is not located in a State; indirectly under common ownership. apply to participate in the FFEL

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programs if the foreign institution meets (1) No portion of an eligible medical those faculty members whose academic the following requirements: or veterinary program offered may be at credentials are the equivalent of (a) Except for a freestanding foreign what would be an undergraduate level credentials required of faculty members graduate medical school, foreign in the United States; and teaching the same or similar courses at veterinary school, or foreign nursing (2) The title IV, HEA program medical schools in the United States. school, the foreign institution is a public eligibility does not extend to any joint (4) A foreign graduate medical school or private nonprofit educational degree program. must have graduated classes during institution. (f) Proof that a foreign institution each of the two twelve-month periods (b) The foreign institution admits as meets the requirements of paragraph immediately preceding the date the regular students only persons who— (1)(iii) of the definition of a foreign Secretary receives the school’s request (1) Have a secondary school institution in § 600.52 may be provided for an eligibility determination. completion credential; or to the Secretary by a legal authorization (b) Accreditation. A foreign graduate (2) Have the recognized equivalent of from the appropriate education medical school must— a secondary school completion ministry, council, or equivalent (1) Be approved by an accrediting credential. agency— body— (c)(1) Notwithstanding § 668.5, an (i) For all eligible foreign institutions (i) That is legally authorized to eligible foreign institution may not enter in the country; evaluate the quality of graduate medical into a written arrangement under which (ii) For all eligible foreign institutions school educational programs and an ineligible institution or organization in a jurisdiction within the country; or facilities in the country where the provides any portion of one or more of (iii) For each separate eligible foreign school is located; and (ii) Whose standards of accreditation the eligible foreign institution’s institution in the country. of graduate medical schools have been programs. For the purposes of this (Authority: 20 U.S.C. 1082, 1088) evaluated by the NCFMEA or its paragraph, written arrangements do not successor committee of medical experts include affiliation agreements for the 8. Section 600.55 is revised to read as and have been determined to be provision of clinical training for foreign follows: comparable to standards of accreditation medical, veterinary, and nursing § 600.55 Additional criteria for determining applied to medical schools in the schools. whether a foreign graduate medical school United States; or (2) An additional location of a foreign is eligible to apply to participate in the title IV, HEA programs. (2) Be a public or private nonprofit institution must separately meet the educational institution that satisfies the definition of a foreign institution in (a) General. (1) The Secretary requirements in § 600.4(a)(5)(i). § 600.52 if it is— considers a foreign graduate medical (c) Admission criteria. (1) A foreign (i) Located outside of the country in school to be eligible to apply to graduate medical school having a post- which the main campus is located, participate in the title IV, HEA programs baccalaureate/equivalent medical except as provided in § 600.55(h)(1), if, in addition to satisfying the criteria program must require students accepted § 600.56(b), § 600.57(a)(2), of this part (except the criterion in for admission who are U.S. citizens, § 600.55(h)(3), and the definition of § 600.54 that the institution be public or nationals, or permanent residents to foreign institution found in § 600.52; or private nonprofit), the school satisfies have taken the Medical College (ii) Located within the same country the criteria of this section. Admission Test (MCAT) and to have as the main campus, but is not covered (2) A foreign graduate medical school reported their scores to the foreign by the legal authorization of the main must provide, and in the normal course medical school; and campus. require its students to complete, a (2) A foreign graduate medical school (d) The foreign institution provides an program of clinical training and must determine the consent eligible education program— classroom medical instruction of not requirements for and require the (1) For which the institution is legally less than 32 months in length, that is necessary consents of all students authorized to award a degree that is supervised closely by members of the accepted for admission who are U.S. equivalent to an associate, school’s faculty and that— citizens, nationals, or eligible baccalaureate, graduate, or professional (i) Is provided in facilities adequately permanent residents to enable the degree awarded in the United States; equipped and staffed to afford students school to comply with the collection (2) That is at least a two-academic- comprehensive clinical training and and submission requirements of year program acceptable for full credit classroom medical instruction; paragraph (d) of this section. toward the equivalent of a baccalaureate (ii) Is approved by all medical (d) Collection and submission of data. degree awarded in the United States; or licensing boards and evaluating bodies A foreign graduate medical school must (3)(i) That is equivalent to at least a whose views are considered relevant by obtain, at its own expense, and by one-academic-year training program in the Secretary; and September 30 of each year, submit— the United States that leads to a (iii) As part of its clinical training, (1) To its accrediting authority and, certificate, degree, or other recognized does not offer more than two electives on request, to the Secretary, the scores educational credential and prepares consisting of no more than eight weeks on the MCAT or successor examination, students for gainful employment in a per student at a site located in a foreign of all students admitted during the recognized occupation. country other than the country in which preceding award year who are U.S. (ii) An institution must demonstrate the main campus is located or in the citizens, nationals, or eligible to the satisfaction of the Secretary that United States, unless that location is permanent residents, together with a the amount of academic work required included in the accreditation of a statement of the number of times each by a program in paragraph (d)(3)(i) of medical program accredited by the student took the examination; this section is equivalent to at least the Liaison Committee on Medical (2) To its accrediting authority and, definition of an academic year in Education (LCME). on request, to the Secretary, the § 668.3. (3) A foreign graduate medical school percentage of students graduating (e) For a for-profit foreign medical, must appoint for the program described during the preceding award year veterinary, or nursing school— in paragraph (a)(2) of this section only (including at least all graduates who are

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U.S. citizens, nationals, or eligible (f) Citizenship and USMLE pass rate (ii) If combining the results on all permanent residents) who obtain percentages. (1)(i)(A) During the three step/tests as permitted in placement in an accredited U.S. medical academic year preceding the year for paragraph (f)(4)(i) of this section would residency program; which any of the school’s students seeks result in a pass rate based on fewer than (3) To the Secretary, except upon an title IV, HEA program loan, at least eight step/test results, the school is written notice from the Secretary that 60 percent of those enrolled as full-time deemed to have no pass rate for that the necessary information has been regular students in the school and at year and the results for the year are obtained by the Secretary for the year least 60 percent of the school’s most combined with each subsequent year directly from the Educational recent graduating class must have been until a pass rate based on at least eight Commission for Foreign Medical persons who did not meet the step/test results is derived. Graduates (ECFMG) or other responsible citizenship and residency criteria (g) Other criteria. (1) As part of third parties, all scores, disaggregated by contained in section 484(a)(5) of the establishing, publishing, and applying step/test—i.e., Step 1, Step 2—Clinical HEA, 20 U.S.C. 1091(a)(5); or reasonable satisfactory academic Skills (Step 2—CS), and Step 2— (B) The school must have had a progress standards, a foreign graduate Clinical Knowledge (Step 2—CK), or the clinical training program approved by a medical school must include as a successor examinations—and attempt, State prior to January 1, 2008, and must quantitative component a maximum earned during the preceding award year continue to operate a clinical training timeframe in which a student must by at least each student and graduate program in at least one State that complete his or her educational program who is a U.S. citizen, national, or approves the program; and that must— eligible permanent resident, on Step 1, (ii) Except as provided in paragraph (i) Be no longer than 150 percent of Step 2—CS, and Step 2—CK, or the (f)(4) of this section, for a foreign the published length of the educational successor examinations, of the U.S. graduate medical school outside of program measured in academic years, Medical Licensing Examination Canada, for Step 1, Step 2—CS, and terms, credit hours attempted, clock (USMLE), together with the dates the Step 2—CK, or the successor hours completed, etc., as appropriate; student has taken each test, including examinations, of the USMLE and any failed tests; administered by the ECFMG, at least 75 (ii) Meet the requirements of (e) Requirements for clinical training. percent of the school’s U.S. citizen, § 668.16(e)(2)(ii)(B), (C) and (D). (1)(i) A foreign graduate medical school national, or eligible permanent resident (2) A foreign graduate medical school must have— students and graduates who took that must document the educational (A) A formal affiliation agreement step/test of the examination in the year remediation it provides to assist with any hospital or clinic at which all preceding the year for which any of the students in making satisfactory or a portion of the school’s core clinical school’s students seeks a title IV, HEA academic progress. (3) A foreign graduate medical school training or required clinical rotations program loan must have received a must publish all the languages in which are provided; and passing score on that step/test and are instruction is offered. taking the step/test for the first time; or (B) Either a formal affiliation (h) Location of a program. (1) Except agreement or other written arrangements (2)(i) The school must have had a as provided in paragraph (h)(3)(ii) of with any hospital or clinic at which all clinical training program approved by a this section, all portions of a graduate or a portion of its clinical rotations that State as of January 1, 1992; and medical education program offered to are not required are provided, except for (ii) The school must continue to U.S. students must be located in a those locations that are not used operate a clinical training program in at country whose medical school regularly, but instead are chosen by least one State that approves the accrediting standards are comparable to individual students who take no more program. standards used in the United States, as than two electives at the location for no (3) In performing the calculation determined by the NCFMEA, except for more than a total of eight weeks. required in paragraph (f)(1)(ii) of this clinical training sites located in the (ii) The agreements described in section, a foreign graduate medical United States. paragraph (e)(1)(i) of this section must school shall— (2) No portion of the graduate medical state how the following will be (i) Count as a graduate each U.S. educational program offered to U.S. addressed at each site— citizen, national, or eligible permanent students, other than the clinical training (A) Maintenance of the school’s resident who graduated from the school portion of the program, may be located standards; during the three years preceding the outside of the country in which the (B) Appointment of faculty to the year for which the calculation is main campus of the foreign medical medical school staff; performed; and school is located. (C) Design of the curriculum; (ii) Count each U.S. citizen, national, (3)(i) Except as provided in paragraph (D) Supervision of students; or eligible permanent resident who (h)(3)(ii) of this section, for any part of (E) Provision of liability insurance; takes more than one step/test of the the clinical training portion of the and USMLE examination in a year in the educational program located in a foreign (F) Evaluation of student denominator for each of those steps/ country other than the country in which performance. tests; the main campus is located or in the (2) A foreign graduate medical school (4)(i) If the calculation described in United States, in order for students must notify its accrediting body within paragraph (f)(1)(ii) of this section would attending the site to be eligible to one year of any material changes in— result in any step/test pass rate based on borrow title IV, HEA program funds— (i) The educational programs, fewer than eight students, a single pass (A) The site must be located in an including changes in clinical training rate for the school is determined instead NCFMEA approved comparable foreign programs; and based on the performance of the country; (ii) The overseeing bodies and in the school’s U.S. citizen, national, and (B) The institution’s medical formal affiliation agreements with eligible permanent resident students accrediting agency must have conducted hospitals and clinics described in and graduates on Step 1, Step 2—CS, an on-site evaluation and specifically paragraph (e)(1)(i) of this section. and Step 2—CK combined; approved the clinical training site; and

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(C) Clinical instruction must be Secretary for the purpose of evaluating (5) The nursing school reimburses the offered in conjunction with medical veterinary programs. Secretary for the cost of any loan educational programs offered to (b)(1) No portion of the foreign defaults for current and former students students enrolled in accredited medical veterinary educational program offered included in the calculation of the schools located in that approved foreign to U.S. students, other than the clinical institution’s cohort default rate during country. training portion of the program as the previous fiscal year. (ii) A clinical training site located in provided for in paragraph (b)(2) of this (6)(i) The nursing school determines a foreign country other than the country section, may be located outside of the the consent requirements for and in which the main campus is located or country in which the main campus of requires the necessary consents of all in the United States is not required to the foreign veterinary school is located; students accepted for admission who meet the requirements of paragraph (2)(i) For a veterinary school that is are U.S. citizens, nationals, or eligible (h)(3)(i) of this section in order for neither public nor private nonprofit, the permanent residents to enable the students attending that site to be eligible school’s students must complete their school to comply with the collection to borrow title IV, HEA program funds clinical training at an approved and submission requirements of if— veterinary school located in the United paragraph (a)(6)(ii) of this section. (A) The location is included in the States; (ii) The nursing school annually accreditation of a medical program (ii) For a veterinary school that is either— accredited by the Liaison Committee on public or private nonprofit, the school’s (A) Obtains, at its own expense, all Medical Education (LCME); or students may complete their clinical results achieved by students and (B) No individual student takes more training at an approved veterinary graduates who are U.S. citizens, than two electives at the location and school located— nationals, or eligible permanent the combined length of the electives (A) In the United States; residents on the National Council does not exceed eight weeks. (B) In the home country; or Licensure Examination for Registered 9. Section 600.56 is revised as (C) Outside of the United States or the Nurses (NCLEX–RN), together with the follows: home country, if no individual student dates the student has taken the takes more than two electives at the examination, including any failed § 600.56 Additional criteria for determining location and the combined length of the examinations, and provides such results whether a foreign veterinary school is elective does not exceed eight weeks. to the Secretary; or eligible to apply to participate in the FFEL Authority: 20 U.S.C. 1002 and 1092. (B) Obtains a report or reports from programs. the National Council of State Boards of 10. Section 600.57 is redesignated as (a) The Secretary considers a foreign Nursing (NCSB), or an NCSB affiliate or § 600.58 and a new § 600.57 is added to veterinary school to be eligible to apply NCSB contractor, reflecting the read as follows: to participate in the FFEL programs if, percentage of the school’s students and in addition to satisfying the criteria in § 600.57 Additional criteria for determining graduates taking the NCLEX–RN in the this part (except the criterion in § 600.54 whether a foreign nursing school is eligible preceding year who passed the that the institution be public or private to apply to participate in the FFEL program. examination, or the data from which the nonprofit), the school satisfies all of the (a) The Secretary considers a foreign percentage could be derived, and following criteria: nursing school to be eligible to apply to provides the report to the Secretary. (1) The school provides, and in the participate in the FFEL programs if, in (7) Not less than 75 percent of the normal course requires its students to addition to satisfying the criteria in this school’s students and graduates who are complete, a program of clinical and part (except the criterion in § 600.54 U.S. citizens, nationals, or eligible classroom veterinary instruction that is that the institution be public or private permanent residents who took the supervised closely by members of the nonprofit), the nursing school satisfies NCLEX–RN in the year preceding the school’s faculty, and that is provided in all of the following criteria: year for which the institution is facilities adequately equipped and (1) The nursing school is an associate certifying a Federal Stafford Loan or a staffed to afford students comprehensive degree school of nursing, a collegiate Federal Plus Loan, passed the clinical and classroom veterinary school of nursing, or a diploma school examination. instruction through a training program of nursing. (8) The school provides, including for foreign veterinary students that has (2) The nursing school has an under the agreements described in been approved by all veterinary agreement with a hospital located in the paragraphs (a)(2) and (a)(3) of this licensing boards and evaluating bodies United States or an accredited school of section, and in the normal course whose views are considered relevant by nursing located in the United States that requires its students to complete, a the Secretary. requires students of the nursing school program of clinical and classroom (2) The school has graduated classes to complete the student’s clinical nursing instruction that is supervised during each of the two twelve-month training at the hospital or accredited closely by members of the school’s periods immediately preceding the date school of nursing. faculty that is provided in facilities the Secretary receives the school’s (3) The nursing school has an adequately equipped and staffed to request for an eligibility determination. agreement with an accredited school of afford students comprehensive clinical (3) The school employs for the nursing located in the United States and classroom nursing instruction, program described in paragraph (a)(1) of providing that students graduating from through a training program for foreign this section only those faculty members the nursing school located outside of the nursing students that has been approved whose academic credentials are the United States also receive a degree from by all nurse licensing boards and equivalent of credentials required of the accredited school of nursing located evaluating bodies whose views are faculty members teaching the same or in the United States. considered relevant by the Secretary. similar courses at veterinary schools in (4) The nursing school certifies only (9) The school has graduated classes the United States. Federal Stafford Loan program loans or during each of the two twelve-month (4) Effective July 1, 2015, the school Federal PLUS program loans, as those periods immediately preceding the date is accredited or provisionally accredited terms are defined in § 668.2, for the Secretary receives the school’s by an organization acceptable to the students attending the nursing school. request for an eligibility determination.

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(10) The school employs only those of certification that is materially (ii) Except as provided in paragraph faculty members whose academic complete at least 90 days prior to the (h)(1)(iii) of this section, a foreign credentials are the equivalent of expiration of its current period of institution that received $500,000 or credentials required of faculty members participation, the institution’s existing more in U.S. title IV program funds teaching the same or similar courses at certification will be extended on a during its most recently completed nursing schools in the United States. month to month basis following the fiscal year must submit, in English, for (b) For purposes of paragraph (a)(5) of expiration of the institution’s period of each most recently completed fiscal year this section, the cost of a loan default is participation until the end of the month in which it received title IV program the sum of the defaulted loan’s— in which the Secretary issues a decision funds, audited financial statements (1) Outstanding principal; on the application for recertification. prepared in accordance with generally (2) Accrued interest; accepted accounting principles of the (3) Unpaid late fees and collection § 668.15 [Amended] institution’s home country along with costs; 14. Section 668.15 is amended by corresponding audited financial (4) Special allowance payments; removing paragraph (h). statements that meet the requirements of (5) Reinsurance payments; and 15. Section 668.23 is amended by: paragraph (d) of this section. (6) Any related or similar payments A. In paragraph (a)(5), removing the (iii) In lieu of making the submission the Secretary is obligated to make on the words ‘‘ ‘‘Audits of Institutions of Higher required by paragraph (h)(1)(ii) of this loan. Education and Other Non-profit section, a public or private nonprofit (c) After a school reimburses the Organizations’’; Office of Management institution that received— Secretary for the amount specified in and Budget Circular A–128, ‘‘Audits of (A) $500,000 or more in U.S. title IV paragraph (b) of this section, the loan is State and Local Governments’’ ’’ and program funds, but less than $3,000,000 assigned to the school, and the borrower adding, in their place, the words in U.S. title IV program funds during its remains liable to the school for the ‘‘Audits of States, Local Governments, most recently completed fiscal year, outstanding balance of the loan, under and Non-Profit Organizations’’ ’’. may submit for that year, in English, the terms and conditions specified in B. In paragraph (d)(1)— audited financial statements prepared in the promissory note. Adding the words ‘‘issued by the accordance with the generally accepted (d) No portion of the foreign nursing Comptroller General of the United accounting principles of the program offered to U.S. students may be States’’ after ‘‘with generally accepted institution’s home country, and is not located outside of the country in which government auditing standards’’ and required to submit the corresponding the main campus of the foreign nursing removing the words ‘‘ ‘‘Audits of audited financial statements that meet school is located, except for clinical Institutions of Higher Education and the requirements of paragraph (d) of this sites located in the United States. Other Non-profit Organizations’’; Office section; of Management and Budget Circular (B) At least $3,000,000, but less than PART 668—STUDENT ASSISTANCE A–128, ‘‘Audits of State and Local GENERAL PROVISIONS $5,000,000 in U.S. title IV, program Governments’’ ’’; and adding, in their funds during its most recently 11. The authority citation for part 668 place, ‘‘Audits of States, Local completed fiscal year, must submit in continues to read as follows: Governments, and Non-Profit English, for each most recently Organizations’’. Authority: 20 U.S.C. 1001, 1002, 1003, completed fiscal year, audited financial C. Removing paragraph (d)(3). statements prepared in accordance with 1070g, 1085, 1088, 1091, 1092, 1094, 1099c, D. Redesignating paragraph (d)(4) as and 1099c–1, unless otherwise noted. the generally accepted accounting paragraph (d)(3). principles of the institution’s home 12. Section 668.2 is amended by E. Redesignating paragraph (d)(5) as country along with corresponding adding the words ‘‘Foreign institution’’ paragraph (d)(4). audited financial statements that meet immediately after ‘‘Federal Family F. Adding paragraph (h). Education Loan (FFEL) programs’’ in the The addition reads as follows: the requirements of paragraph (d) of this list of definitions in paragraph (a). section, except that an institution that 13. Section 668.13(b) is revised to § 668.23 Compliance audits and audited continues to receive at least $3,000,000 financial statements. read as follows: but less than $5,000,000, in U.S. title IV * * * * * funds during its most recently § 668.13 Certification procedures. (h) Audit submission requirements for completed fiscal year may omit the * * * * * foreign institutions. (1) Audited audited financial statements that meet (b) Period of participation. (1) If the financial statements. (i) The Secretary the requirements of paragraph (d) of this Secretary certifies that an institution waives for that fiscal year the section for up to two consecutive years meets the standards of this subpart, the submission of audited financial following the submission of audited Secretary also specifies the period for statements if the institution is a foreign financial statements that meet the which the institution may participate in public or nonprofit institution that requirements of paragraph (d) of this a title IV, HEA program. An institution’s received less than $500,000 in U.S. title section. period of participation expires six years IV program funds during its most (2) Compliance audits. A foreign after the date that the Secretary certifies recently completed fiscal year, unless institution’s compliance audit must that the institution meets the standards that foreign public or nonprofit cover, on a fiscal year basis, all title IV, of this subpart, except that— institution is in its initial provisional HEA program transactions, and must (i) The period of participation for a period of participation, and received cover all of those transactions that have private, for profit foreign institution title IV program funds during that year, occurred since the period covered by expires three years after the date of the in which case the institution must the institution’s last compliance audit. Secretary’s certification; and submit, in English, audited financial A compliance audit that is due under (ii) The Secretary may specify a statements prepared in accordance with this paragraph must be submitted no shorter period. generally accepted accounting later than six months after the last day (2) Provided that an institution has principles of the institution’s home of the institution’s fiscal year, and must submitted an application for a renewal country. meet the following requirements:

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(i) If the foreign institution received for its most recently completed fiscal (ii) Is not in violation of any past $500,000 or more in U.S. dollars in title year. performance requirement under IV, HEA program funds during its most (B) The institution has timely § 668.174. recently completed fiscal year, it must submitted acceptable compliance audits (2) The Secretary considers a foreign submit a standard compliance audit for for two consecutive fiscal years, and public institution to be financially that year that is performed in following such submission, has no responsible if the institution— history of late submission since then. accordance with audit guides developed (i)(A) Notifies the Secretary that it is by, and available from, the Department (C) The institution is fully certified. (3)(i) Exceptions. Notwithstanding the designated as a public institution by the of Education’s Office of Inspector country or other government entity that General, together with an alternative provisions of paragraphs (h)(1)(i) and (h)(1)(iii) of this section, the Secretary has the legal authority to make that compliance audit or audits prepared in designation; and accordance with paragraph (h)(2)(ii) of may issue a letter to a foreign institution (B) Provides documentation from an this section for any preceding fiscal year that identifies problems with its official of that country or other or years in which the foreign institution financial condition or financial government entity confirming that the received less than $500,000 in U.S. reporting and requires the submission of institution is a public institution and is dollars in title IV, HEA program funds; audited financial statements in the (ii) If the foreign institution received manner specified by the Secretary. backed by the full faith and credit of the less than $500,000 U.S. in title IV, HEA (ii) Notwithstanding the provisions of country or other government entity; and program funds for its most recently paragraphs (h)(2)(ii) and (h)(2)(iii) of (ii) Is not in violation of any past completed fiscal year, it must submit an this section, the Secretary may issue a performance requirement under alternative compliance audit for that letter to a foreign institution that § 668.174. prior fiscal year that is performed in identifies problems with its * * * * * accordance with audit guides developed administrative capability or compliance reporting that may require the by, and available from, the Department PART 682—FEDERAL FAMILY compliance audit to be performed at a of Education’s Office of Inspector EDUCATION LOAN (FFEL) PROGRAM higher level of engagement, and may General, except as noted in paragraph require the compliance audit to be 17. The authority citation for part 682 (h)(2)(iii) of this section. (iii) If so notified by the Secretary, a submitted annually. continues to read as follows: 16. Section 668.171 is amended by foreign institution may submit an Authority: 20 U.S.C. 1071–1087–2, unless revising paragraph (c) to read as follows: alternative compliance audit performed otherwise noted. in accordance with audit guides § 668.171 General. 18. Section 682.200 is amended by: developed by, and available from, the * * * * * A. Adding the words ‘‘Foreign Department of Education’s Office of (c) Public institutions. (1) The institution’’ immediately after ‘‘Federal Inspector General, that covers a period Secretary considers a domestic public Family Education Loan Program not to exceed three of the institution’s institution to be financially responsible (formerly known as the Guaranteed consecutive fiscal years if such audit is if the institution— Student Loan (GSL) Program’’ in the list submitted either no later than six (i)(A) Notifies the Secretary that it is of definitions in paragraph (a)(2). months after the last day of the most designated as a public institution by the recent fiscal year, or contemporaneously State, local, or municipal government B. Removing the definition of Foreign with a standard compliance audit timely entity, tribal authority, or other school in paragraph (b). submitted under paragraph (h)(2)(i) or government entity that has the legal § 682.611 [Removed] (h)(3)(ii) of this section for the most authority to make that designation; and recently completed fiscal year, and if (B) Provides a letter from an official 19. Section 682.611 is removed and the following conditions are met: of that State or other government entity reserved. (A) The institution received less than confirming that the institution is a [FR Doc. 2010–17313 Filed 7–19–10; 8:45 am] $500,000 in title IV, HEA program funds public institution; and BILLING CODE 4000–01–P

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Part III

Environmental Protection Agency 40 CFR Part 80 Regulation of Fuels and Fuel Additives: 2011 Renewable Fuel Standards; Proposed Rule

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ENVIRONMENTAL PROTECTION ADDRESSES: Submit your comments, special characters, any form of AGENCY identified by Docket ID No. EPA–HQ– encryption, and be free of any defects or OAR–2010–0133, by one of the viruses. For additional information 40 CFR Part 80 following methods: about EPA’s public docket visit the EPA • [EPA–HQ–OAR–2010–0133; FRL–9175–8] http://www.regulations.gov: Follow Docket Center homepage at http:// the online instructions for submitting www.epa.gov/epahome/dockets.htm. RIN 2060–AQ16 comments. For additional instructions on • E-mail: [email protected]. submitting comments, go to Section I.B Regulation of Fuels and Fuel • Mail: Air and Radiation Docket and of the SUPPLEMENTARY INFORMATION Additives: 2011 Renewable Fuel Information Center, Environmental section of this document. Standards Protection Agency, Mailcode: 2822T, Docket: All documents in the docket AGENCY: Environmental Protection 1200 Pennsylvania Ave., NW., are listed in the http:// Agency (EPA). Washington, DC 20460. • www.regulations.gov index. Although ACTION: Notice of proposed rulemaking. Hand Delivery: EPA Docket Center, listed in the index, some information is EPA West Building, Room 3334, 1301 not publicly available, e.g., CBI or other SUMMARY: Under the Clean Air Act Constitution Ave., NW., Washington, information whose disclosure is Section 211(o), as amended by the DC 20460. Such deliveries are only restricted by statute. Certain other Energy Independence and Security Act accepted during the Docket’s normal material, such as copyrighted material, of 2007 (EISA), the Environmental hours of operation, and special will be publicly available only in hard Protection Agency is required to set the arrangements should be made for copy. Publicly available docket renewable fuel standards each deliveries of boxed information. materials are available either November for the following year based Instructions: Direct your comments to electronically in http:// on gasoline and diesel projections from Docket ID No. EPA–HQ–OAR–2010– www.regulations.gov or in hard copy at EIA. Additionally, EPA is required to set 0133. EPA’s policy is that all comments the Air and Radiation Docket and the cellulosic biofuel standard each year received will be included in the public Information Center, EPA/DC, EPA West, based on the volume projected to be docket without change and may be Room 3334, 1301 Constitution Ave., available during the following year, made available online at http:// NW., Washington, DC. The Public using EIA projections and assessments www.regulations.gov, including any Reading Room is open from 8:30 a.m. to of production capability from industry. personal information provided, unless 4:30 p.m., Monday through Friday, This regulatory action proposes these the comment includes information excluding legal holidays. The telephone annual standards for cellulosic biofuel, claimed to be Confidential Business number for the Public Reading Room is biomass-based diesel, advanced biofuel, Information (CBI) or other information (202) 566–1744, and the telephone and renewable fuels that apply to all whose disclosure is restricted by statute. number for the Air Docket is (202) 566– gasoline and diesel produced or Do not submit information that you 1742. imported in year 2011. This action also consider to be CBI or otherwise presents two proposed changes to the protected through http:// FOR FURTHER INFORMATION CONTACT: Julia RFS2 regulations. The first would create www.regulations.gov or e-mail. The MacAllister, Office of Transportation a temporary and limited means for http://www.regulations.gov Web site is and Air Quality, Assessment and certain renewable fuel producers to an ‘‘anonymous access’’ system, which Standards Division, Environmental generate delayed RINs after they have means EPA will not know your identity Protection Agency, 2000 Traverwood produced and sold renewable fuel. This or contact information unless you Drive, Ann Arbor, MI 48105; Telephone proposed provision would apply only to provide it in the body of your comment. number: 734–214–4131; Fax number: those producers who use canola oil, If you send an e-mail comment directly 734–214–4816; E-mail address: grain sorghum, pulpwood, or palm oil to to EPA without going through http:// [email protected], or produce renewable fuel. The second www.regulations.gov your e-mail Assessment and Standards Division proposed regulatory provision would address will be automatically captured Hotline; telephone number 734–214– establish criteria for foreign countries to and included as part of the comment 4636; E-mail address [email protected]. adopt an aggregate approach to that is placed in the public docket and SUPPLEMENTARY INFORMATION: compliance with the renewable biomass made available on the Internet. If you provision akin to that applicable to the submit an electronic comment, EPA I. General Information U.S. recommends that you include your A. Does this action apply to me? DATES: Comments must be received on name and other contact information in or before August 19, 2010. the body of your comment and with any Entities potentially affected by this Hearing: We do not expect to hold a disk or CD–ROM you submit. If EPA proposed rule are those involved with public hearing. However, if we receive cannot read your comment due to the production, distribution, and sale of such a request we will publish technical difficulties and cannot contact transportation fuels, including gasoline information related to the timing and you for clarification, EPA may not be and diesel fuel or renewable fuels such location of the hearing and the timing of able to consider your comment. as ethanol and biodiesel. Potentially a new deadline for public comments. Electronic files should avoid the use of regulated categories include:

Category NAICS 1 codes SIC 2 codes Examples of potentially regulated entities

Industry ...... 324110 2911 Petroleum Refineries. Industry ...... 325193 2869 Ethyl alcohol manufacturing. Industry ...... 325199 2869 Other basic organic chemical manufacturing. Industry ...... 424690 5169 Chemical and allied products merchant wholesalers. Industry ...... 424710 5171 Petroleum bulk stations and terminals. Industry ...... 424720 5172 Petroleum and petroleum products merchant wholesalers.

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Category NAICS 1 codes SIC 2 codes Examples of potentially regulated entities

Industry ...... 454319 5989 Other fuel dealers. 1 North American Industry Classification System (NAICS). 2 Standard Industrial Classification (SIC) system code.

This table is not intended to be your estimate in sufficient detail to V. Proposed Changes to RFS2 Regulations exhaustive, but rather provides a guide allow for it to be reproduced. A. Delayed RIN Generation for New for readers regarding entities likely to be • Provide specific examples to Pathways illustrate your concerns, and suggest B. Criteria and Process for Adoption of regulated by this proposed action. This Aggregate Approach to Renewable table lists the types of entities that EPA alternatives. • Biomass for Foreign Countries is now aware could potentially be Explain your views as clearly as 1. Criterion and Considerations regulated by this proposed action. Other possible, avoiding the use of profanity 2. Data Sources types of entities not listed in the table or personal threats. 3. Petition Submission • could also be regulated. To determine Make sure to submit your 4. Petition Process whether your activities would be comments by the comment period VI. Public Participation regulated by this proposed action, you deadline identified. A. How do I submit comments? B. How should I submit CBI to the agency? should carefully examine the Outline of This Preamble VII. Statutory and Executive Order Reviews applicability criteria in 40 CFR part 80. A. Executive Order 12866: Regulatory If you have any questions regarding the I. Executive Summary A. Statutory Requirements for Cellulosic Planning and Review applicability of this proposed action to Biofuel B. Paperwork Reduction Act a particular entity, consult the person B. Assessment of 2011 Cellulosic Biofuel C. Regulatory Flexibility Act listed in the preceding section. Volume D. Unfunded Mandates Reform Act C. Advanced Biofuel and Total Renewable E. Executive Order 13132: Federalism B. What should I consider as I prepare Fuel F. Executive Order 13175: Consultation my comments for EPA? D. Proposed Percentage Standards and Coordination With Indian Tribal Governments 1. Submitting CBI II. Volume Production and Import Potential for 2011 G. Executive Order 13045: Protection of Do not submit this information to EPA A. Cellulosic Biofuel Children From Environmental Health 1. Domestic Cellulosic Ethanol Risks and Safety Risks through http://www.regulations.gov or H. Executive Order 13211: Actions e-mail. Clearly mark the part or all of 2. Domestic Cellulosic Diesel 3. Other Domestic Cellulosic Biofuels Concerning Regulations That the information that you claim to be Significantly Affect Energy Supply, CBI. For CBI information in a disk or 4. Imports of Cellulosic Biofuel 5. Summary of Volume Projections Distribution, or Use CD–ROM that you mail to EPA, mark B. Potential Limitations I. National Technology Transfer the outside of the disk or CD–ROM as C. Advanced Biofuel and Total Renewable Advancement Act CBI and then identify electronically Fuel J. Executive Order 12898: Federal Actions within the disk or CD–ROM the specific D. Biomass-Based Diesel to Address Environmental Justice in Minority Populations and Low-Income information that is claimed as CBI. In III. Proposed Percentage Standards for 2011 A. Background Populations addition to one complete version of the VIII. Statutory Authority comment that includes information B. Calculation of Standards 1. How are the standards calculated? I. Executive Summary claimed as CBI, a copy of the comment 2. Small Refineries and Small Refiners that does not contain the information IV. Cellulosic Biofuel Technology The Renewable Fuel Standard (RFS) claimed as CBI must be submitted for Assessment program began in 2007 following the inclusion in the public docket. A. What pathways are valid for the requirements in Clean Air Act (CAA) Information so marked will not be production of cellulosic biofuel? section 211(o) which were implemented disclosed except in accordance with B. Cellulosic Feedstocks through the Energy Policy Act of 2005 procedures set forth in 40 CFR part 2. C. Emerging Technologies (EPAct). The statutory requirements for 1. Biochemical the RFS program were subsequently 2. Tips for Preparing Your Comments a. Feedstock Handling b. Biomass Pretreatment modified through the Energy When submitting comments, c. Hydrolysis Independence and Security Act of 2007 remember to: i. Acid Hydrolysis (EISA), resulting in the release of • Identify the rulemaking by docket ii. Enzymatic Hydrolysis revised regulatory requirements on number and other identifying d. Fuel Production March 26, 2010 1. In general, the information (subject heading, Federal e. Fuel Separation transition from the RFS1 requirements Register date and page number). f. Process Variations of EPAct to the RFS2 requirements of • Follow directions—The agency may g. Current Status of Biochemical Conversion Technology EISA will occur on July 1, 2010. ask you to respond to specific questions h. Major Hurdles to Commercialization EPA is required to determine and or organize comments by referencing a 2. Thermochemical publish the applicable annual Code of Federal Regulations (CFR) part a. Ethanol Based on a Thermochemical percentage standards for each or section number. Platform compliance year by November 30 of the • Explain why you agree or disagree, b. Diesel and Naphtha Production Based on previous year. The determination of the suggest alternatives, and substitute a Thermochemical Platform applicable standards under RFS2 language for your requested changes. 3. Hybrid Thermochemical/Biochemical requires the EPA to conduct an in-depth • Describe any assumptions and Processes 4. Pyrolysis and Depolymerization evaluation of the volume of qualifying provide any technical information and/ a. Pyrolysis Diesel Fuel and Gasoline cellulosic biofuel that can be supplied or data that you used. b. Catalytic Depolymerization in the following year. If the projected • If you estimate potential costs or 5. Catalytic Reforming of Sugars to burdens, explain how you arrived at Gasoline 1 75 FR 14670.

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volume of cellulosic biofuel production published on March 26, 2010, including the renewable biomass verification is less than the required volume impacts of the biofuel standards provisions, akin to that applicable to specified in the statute, EPA must lower specified in the statute. Today’s producers using crops and crop residue the required volume used to set the rulemaking simply proposes the grown in the United States. Further annual cellulosic biofuel percentage standards for 2011 whose impacts were discussion of both of these proposed standard to the projected volume of already analyzed previously. provisions can be found in Section V. production. We must also determine Today’s notice also presents two Finally, we note that in the RFS2 final whether the advanced biofuel and/or proposed changes to the RFS2 rule we also stated our intent to make total renewable fuel volumes should be regulations. The first would create a two announcements each year: reduced by the same or a lesser amount. temporary and limited means for certain • Set the price for cellulosic biofuel Since these evaluations will be based on renewable fuel producers to generate waiver credits that will be made evolving information about emerging RINs after they have produced and sold available to obligated parties in the segments of the biofuels industry, and renewable fuel. This proposed provision event that we reduce the volume of may result in the required volumes for ‘‘Delayed RINs’’ would apply only to cellulosic biofuel below the volume differing from those in the statute, we those producers who use canola oil, required by EISA. believe that a notice-and-comment grain sorghum, pulpwood, or palm oil to • Announce the results of our rulemaking process is appropriate. produce renewable fuel, and only if EPA assessment of the aggregate compliance Today’s notice provides our evaluation determines that fuel pathways utilizing approach for verifying renewable of the projected production of cellulosic these feedstocks provide appropriate biomass requirements for U.S. crops and biofuel for 2011, and proposed greenhouse gas reductions as compared crop residue, and our conclusion percentage standards for compliance to baseline fuels to enable EPA to list regarding whether the aggregate year 2011. We will complete our the pathways in Table 1 to § 80.1426. compliance provision will continue to evaluation based on comments received We are proposing that the provision for apply. in response to this proposal, the Delayed RINs would apply only to these For both of these determinations EPA Production Outlook Reports due to the four feedstocks because we would have will use specific sources of data and a Agency on September 1, 2010, the included them in the final RFS2 rule if methodology laid out in the RFS2 final estimate of projected biofuel volumes the lifecycle analyses had been rule. We intend to present the results of that the EIA is required to provide to completed in time. The greenhouse gas both of these determinations in the final EPA by October 31, and other (GHG) lifecycle impacts of these four rule following today’s proposal. information that becomes available, and feedstocks are currently being analyzed will finalize the standards for 2011 by as a supplement to the RFS2 final rule A. Statutory Requirements for Cellulosic November 30, 2010. and are expected to be completed in Biofuel Today’s proposed rule does not 2010. The second proposed regulatory The volumes of renewable fuel that include an assessment of the provision would establish criteria for must be used under the RFS2 program environmental impacts of the standards EPA to use in determining whether to each year (absent an adjustment or we are proposing for 2011. All of the authorize renewable fuel producers waiver by EPA) are specified in CAA impacts of the RFS2 program were using foreign-grown feedstocks to use an 211(o)(2). These volumes for 2011 are addressed in the RFS2 final rule aggregate approach to compliance with shown in Table I.A–1.

TABLE I.A–1—REQUIRED VOLUMES IN THE CLEAN AIR ACT FOR 2011 [Bill gal]

Ethanol Actual equivalent volume volume

Cellulosic biofuel ...... 0.25 a 0.25 Biomass-based diesel ...... 0.80 1.20 Advanced biofuel ...... 1.35 1.35 Renewable fuel ...... 13.95 13.95 a This value assumes that all cellulosic biofuel would be ethanol. If any portion of the renewable fuel used to meet the cellulosic biofuel volume mandate has a volumetric energy content greater than that for ethanol, this value will be higher.

By November 30 of each year, the EPA The statute requires the EPA to and total renewable fuel by the same or is required under CAA 211(o) to determine whether the projected a lesser volume. determine and publish in the Federal volume of cellulosic biofuel production As described in the final rule for the Register the renewable fuel standards for the following year is less than the RFS2 program, we intend to examine for the following year. These standards minimum applicable volume shown in EIA’s projected volumes and other are to be based in part on transportation Table I.A–1. If this is the case, then the available data including the Production fuel volumes estimated by the Energy standard for cellulosic biofuel must be Outlook Reports required under Information Administration (EIA) for based upon the volume projected to be § 80.1449 in making the determination the following year. The calculation of available rather than the applicable of the appropriate volumes to require for the percentage standards is based on the volume in the statute. In addition, if 2011. Since the first set of Production formulas in § 80.1405(c) which express EPA reduces the required volume of Outlook Reports are not due until the required volumes of renewable fuel cellulosic biofuel below the level September 1, 2010, they were not as a volume percentage of gasoline and specified in the statute, the Act also available for today’s proposal but will diesel sold or introduced into commerce indicates that we may reduce the be considered for development of the in the 48 contiguous states plus Hawaii. applicable volume of advanced biofuels

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final rule to be released by November the subset that had a possibility of the technology and contracts for 30, 2010. producing some volume of qualifying feedstocks, and progress towards cellulosic biofuel for use as B. Assessment of 2011 Cellulosic Biofuel construction and production goals. A transportation fuel in 2011. We then Volume complete list of all the factors we expect conducted a rigorous process of to consider in this process is provided To estimate the volume of cellulosic contacting all of these producers to in Section II.A.5. biofuel that could be made available in determine which ones were actually in the U.S. in 2011, we researched all a position to produce and make In our assessment we evaluated both potential production sources by available any commercial volumes of domestic and foreign sources of company and facility. This included cellulosic biofuel in 2011. Based on cellulosic biofuel. Of the domestic sources that were still in the planning information gathered in this process, we sources, we estimated that seven stages, those that were under estimated the maximum potentially facilities have the potential to make construction, and those that are already available 2011 volumes. For the final volumes of cellulosic biofuel available producing some volume of cellulosic rule, we will specify the projected for transportation use in the U.S. in ethanol, cellulosic diesel, or some other available volume for 2011 that will be 2011. We also determined that one type of cellulosic biofuel. We the basis for the percentage standard for facility in Canada has the potential to considered all pilot and demonstration cellulosic biofuel. To determine the export some cellulosic biofuel to the plants as well as commercial plants. projected available volume, we will U.S. These facilities are listed in Table From this universe of potential consider factors such as the current and I.B–1 along with our estimate of the cellulosic biofuel sources we identified expected state of funding, the status of maximum potentially available volume.

TABLE I.B–1—MAXIMUM POTENTIALLY AVAILABLE CELLULOSIC BIOFUEL PLANT VOLUMES FOR 2011

Maximum potentially available volume (million Company Location Fuel type ethanol-equivalent gallons)

AE Advanced Fuels Keyes ...... Keyes, CA ...... Ethanol ...... 0 .5 Agresti Biofuels ...... Pike County, KY ...... Ethanol ...... 1 Bell Bio-Energy ...... Atlanta, GA ...... Diesel feedstock ...... 11 .9 Cello Energy ...... Bay Minette, AL ...... Diesel ...... 8.5 DuPont Dansico ...... Vonore, TN ...... Ethanol ...... 0 .15 Fiberight ...... Blairstown, IA ...... Ethanol ...... 2 .8 Iogen Corporation ...... Ottawa, Ont ...... Ethanol ...... 0.25 KL Energy Corp/WBE ...... Upton, WY ...... Ethanol ...... 0.4

Total ...... 25 .5

The volumes in Table I.B–1 for each feedstocks that have not yet been proposing a determination that this is facility represent the volume that would subjected to lifecycle analyses to the case. Therefore, we also needed to be produced in 2011 based upon the determine if the pathway meets the evaluate the need to lower the required owner’s expected month of startup and applicable GHG thresholds. volumes for advanced biofuel and total an assumed period of production Based on our preliminary assessment renewable fuel. rampup for testing and process for this NPRM, we believe that we could We first considered whether it validation. However, none of the justify a 2011 cellulosic biofuel volume appears likely that the required facilities we evaluated are currently requirement of at least 6.5 million biomass-based diesel volume of 0.8 producing cellulosic biofuel at the rates ethanol-equivalent gallons, and billion gallons can be met with existing they project for 2011. Moreover, there potentially as high as 25.5 million biodiesel production capacity in 2011. are other uncertainties associated with gallons. For the final rule we will use As discussed in Section II.D, we believe each facility’s projected volume that additional information that becomes that the 0.8 billion gallon standard can could result in less production volume available after publication of this indeed be met. Since biodiesel has an in 2011 than the maximum potentially proposal and a more precise assessment Equivalence Value of 1.5, 0.8 billion available values shown in Table I.B–1. of the uncertainties associated with each physical gallons of biodiesel would These uncertainties include outstanding facility to determine the projected provide 1.20 billion ethanol-equivalent issues in areas such as technology, available volume on which to base the gallons that can be counted towards the funding, and construction. Historical cellulosic biofuel percentage standard advanced biofuel standard of 1.35 successes in meeting various past for 2011. billion gallons. Of the remaining 0.15 milestones also play a role in assessing bill gallons, up to 0.026 bill gallons C. Advanced Biofuel and Total the likelihood of meeting future would be met with the proposed volume Renewable Fuel milestones. A detailed discussion of of cellulosic biofuel. Based on our these uncertainties is presented in As described in Section I.A above, the analysis as described in Section II.C, Section II.A. Finally, the volumes that statute indicates that we may reduce the there may be sufficient volumes of other should be considered for setting the applicable volume of advanced biofuel advanced biofuels, such as imported 2011 standard are those that result from and total renewable fuel if we determine sugarcane ethanol, additional biodiesel, valid cellulosic biofuel pathways in that the projected volume of cellulosic or renewable diesel, such that the Table 1 to § 80.1426. As described more biofuel production for 2011 falls short of standard for advanced biofuel could fully in Section IV.A, some of the the statutory volume of 250 million remain at the statutory level of 1.35 facilities in Table I.B–1 may use gallons. As shown in Table I.B–1, we are billion gallons. However, uncertainty in

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the potential volumes of these other biofuel and/or total renewable fuel required on a nationwide basis. To advanced biofuels coupled with the volume requirements should be lowered calculate the percentage standard for range of potential production volumes if, as we propose, EPA lowers the cellulosic biofuel for 2011, we have of cellulosic biofuel could provide a required cellulosic biofuel volume from used a potential volume range of 6.5– rationale for lowering the advanced that specified in the Act. 25.5 million ethanol-equivalent gallons biofuel standard. If we do not D. Proposed Percentage Standards (representing 5–17.1 million physical simultaneously lower the required gallons). For the final rule, EPA intends The renewable fuel standards are volume for total renewable fuel, the to pick a single value from within this expressed as a volume percentage, and result would be that additional volumes are used by each refiner, blender or range to represent the projected of conventional renewable fuel, such as importer to determine their renewable available volume on which the 2011 corn-starch ethanol, would be produced, fuel volume obligations. The applicable percentage standard for cellulosic effectively replacing some advanced percentages are set so that if each biofuel will be based. We are also biofuels. In today’s NPRM we are regulated party meets the percentages, proposing that the applicable volumes proposing that neither the required 2011 and if EIA projections of gasoline and for biomass-based diesel, advanced volumes for advanced biofuel nor total diesel use are accurate, then the amount biofuel, and total renewable fuel for renewable fuel be lowered below the of renewable fuel, cellulosic biofuel, 2011 will be those specified in the statutory volumes. However, we request biomass-based diesel, and advanced statute. These volumes are shown in comment on whether the advanced biofuel used will meet the volumes Table I.D–1.

TABLE I.D–1—PROPOSED VOLUMES FOR 2011

Ethanol equivalent Actual volume volume

Cellulosic biofuel ...... 5–17.1 mill gal ...... 6.5–25.5 mill gal. Biomass-based diesel ...... 0.80 bill gal ...... 1.20 bill gal. Advanced biofuel ...... 1.35 bill gal ...... 1.35 bill gal. Renewable fuel ...... 13.95 bill gal ...... 13.95 bill gal.

Four separate standards are required refiner/refinery volume adjustment to this section do not represent the under the RFS2 program, corresponding the 2011 standard as there was for the projected available volume of cellulosic to the four separate volume 2010 standard. Thus, the increase in the biofuel that will be used to finalize the requirements shown in Table I.D–1. The percentage standards relative to 2010 cellulosic biofuel percentage standard specific formulas we use to calculate the appears smaller than would otherwise for 2011. Rather, for today’s NPRM we renewable fuel percentage standards are be the case, since more obligated parties have assessed the maximum potentially contained in the regulations at § 80.1405 will be participating in the program. available volume for 2011, which is and repeated in Section III.B.1. The The proposed standards for 2011 are intended to represent an upper bound of percentage standards represent the ratio shown in Table I.D–2. Detailed the volume of fuel that may be produced of renewable fuel volume to non- calculations can be found in Section III. and made available. The production of renewable gasoline and diesel volume. cellulosic biofuel remains highly The projected volumes of gasoline and TABLE I.D–2—PROPOSED uncertain, and EPA expects that the renewable fuels used to calculate the PERCENTAGE STANDARDS FOR 2011 volume of cellulosic biofuel used to set standards are provided by EIA’s Short- the 2011 percentage standard will be a Term Energy Outlook (STEO) 2. The Percent lesser volume than this maximum projected volume of transportation potentially available volume. Section III diesel used to calculate the standards is Cellulosic biofuel ...... 0.004–0.015 Biomass-based diesel ...... 0.68 describes the conversion of our provided by EIA’s 2010 Annual Energy maximum potentially available volumes 3 Advanced biofuel ...... 0.77 Outlook (early release version). Renewable fuel ...... 7.95 for cellulosic biofuel into a range of Because small refiners and small percentage standards. refineries are also regulated parties II. Volume Production and Import While the 2011 volume projections in beginning in 2011 4, there is no small Potential for 2011 today’s proposal were based on our own assessment of the cellulosic biofuel 2 The March 2010 issue of STEO was used for In order to project production today’s proposal. We intend to use the October 2010 volumes of cellulosic biofuel in 2011 for industry, by the time we announce the version for the final rule. use in setting the percentage standards, final 2011 volumes and percentage 3 EIA has recommended the use of the Annual we collected information on individual standards we will have additional Energy Outlook (AEO) rather than the Short Term information. First, in addition to Energy Outlook as a better representation of the facilities that have the potential to estimated transportation sector diesel fuel use. We produce qualifying volumes for comments in response to today’s will use the most recent version of AEO in the final consumption as transportation fuel, proposal, we will have updated and values of the standards. heating oil, or jet fuel in the U.S. in more detailed information about how 4 The Department of Energy concluded that there the industry is progressing in 2010. is no reason to believe that any small refinery 2011. This section describes the would be disproportionately harmed by inclusion potential volumes that we believe could Second, by September 1 all registered in the proposed RFS2 program for 2011 and be produced or imported in 2011 as well producers and importers of renewable beyond. See DOE report ‘‘EPACT 2005 Section 1501 as the uncertainties associated with fuel must submit Production Outlook Small Refineries Exemption Study’’, (January 2009). Reports describing their expectations for We will revisit extensions to the exemption for those volumes. The volumes listed in small refiners and refineries if DOE revises their new or expanded biofuel supply for the study and provides a different conclusion, or an it will suffer a disproportionate economic hardship next five years, according to § 80.1449. individual small refinery is able to demonstrate that under the RFS program. Finally, by October 2010 the Energy

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Information Administration (EIA) is portion of this volume, producers will a demonstration plant in Butte, Montana required by statute to provide EPA with be aiming to meet it. Therefore, it is to test their technology and gather an estimate of the volumes of reasonable to project that this same information for their first commercial transportation fuel, biomass-based volume could, at minimum, also be scale plant. AE Biofuels has reached a diesel, and cellulosic biofuel projected produced in 2011. lease agreement with Cilion to operate to be sold or introduced into commerce For a maximum potentially available Cilion’s 55 MGY corn ethanol plant in in the U.S. in 2011. cellulosic biofuel volume for 2011, we Keyes, CA under the name AE are proposing 25.5 million ethanol Advanced Fuels Keyes. This facility has A. Cellulosic Biofuel equivalent gallons, representing the been idled since April 2009 and will The task of projecting the volume of highest volume of fuel that can require repairs before being operational. cellulosic biofuels that will be produced reasonably be expected to be produced AE Biofuels plans to start up production in 2011 is a difficult one. Currently and made available based on current with a starch feedstock in late-2010 and there are no facilities consistently information. In order for this volume of then begin to transition some producing cellulosic biofuels for cellulosic biofuel to be produced in production to cellulosic feedstock in commercial sale. Announcements of 2011, each of the companies discussed mid-2011. AE Biofuels plans to new projects, changes in project plans, below would have to achieve their eventually use up to 25% cellulosic project delays, and cancellations occur production targets in their projected feedstock for ethanol production in this with great regularity. Biofuel producers timeframes. However, historical trends facility. EPA projects that up to 0.5 face not only the challenge of the scale among cellulosic biofuel producers million gallons of ethanol may be up of innovative, first-of-a-kind suggests that this is unlikely to be the produced by this facility in 2011. technology, but also the challenge of case, as there are many factors which Agresti Biofuels plans to produce securing funding in a difficult economy. have the potential to result in ethanol from separated municipal solid In order to project cellulosic biofuel production delays. For instance, several waste (separated MSW) at a facility in production in 2011, EPA has tracked the of the companies we considered when Pike County, Kentucky. Their process progress of over 100 biofuel production setting the 2010 cellulosic biofuel uses a gravity pressure vessel licensed facilities. From this list of facilities we standard have yet to sell cellulosic from GeneSyst to crack the lignin in used publicly available information, as biofuel in the United States and appear their feedstock and then a combination well as information provided by DOE unlikely to do so by the end of 2010. of weak bases and acids to convert the and USDA, to determine which facilities This fact demonstrates the uncertainty cellulose and hemicellulose into simple were the most likely candidates to of cellulosic biofuel production sugars for later fermentation into produce cellulosic biofuel and make it estimates, and is one of many factors ethanol. Agresti plans to begin commercially available in 2011. Each of EPA will consider when setting the construction on their first production these companies was contacted by EPA cellulosic biofuel standard for 2011. facility in Pike County sometime in the in order to determine the current status The rest of this section describes the summer of 2010 and hope to be of their facilities and discuss their analyses that were used as the basis for producing ethanol by the end of 2011. commercialization plans for the coming this maximum value. We will continue The full production capacity of this years. Our estimate of the maximum to gather more information to help facility will be 20 million gallons of potentially available cellulosic biofuel inform our decision on the final ethanol per year. Due to the fact that production in 2011 is based on the cellulosic biofuel standard for 2011, and construction on this facility has not yet information we received in we will specify a single volume in the begun and production is not expected conversations with these companies as final rule that will be the basis for the until late in 2011 EPA expects no more well as our own assessment of the cellulosic biofuel percentage standard than 1 million gallons of cellulosic likelihood of these facilities successfully for 2011. ethanol to be produced by Agresti producing cellulosic biofuel in the Biofuels in 2011. 1. Domestic Cellulosic Ethanol volumes indicated. DuPont Danisco Cellulosic Ethanol A brief description of each of the Based on our assessment of the (DDCE) began start up operations at a companies we believe may produce cellulosic biofuel industry we believe small demonstration facility in Vonore, cellulosic biofuel and make it that there are five companies in the Tennessee in early 2010. This facility commercially available can be found United States with the potential to has a maximum production capacity of below. These companies have been produce cellulosic ethanol and make it 250,000 gallons of ethanol per year and grouped according to the type of biofuel commercially available in 2011. These uses an enzymatic hydrolysis process to they produce. For the purpose of setting companies are AE Biofuels, Agresti convert corn cobs into ethanol. The the cellulosic biofuel standard for 2011 Biofuels, DuPont Danisco Cellulosic main purpose of this facility is not to this is a convenient grouping, as the Ethanol, Fiberight, and KL Energy produce ethanol to be sold number of RINs generated per gallon of Corporation. This section will provide a commercially, but rather to provide fuel produced is dependent on the type brief description of each of these information for the future construction of fuel. A more in depth discussion of companies and our assessment of their and optimization of larger, commercial the technologies used to produce potential fuel production in 2011. This scale cellulosic ethanol production cellulosic biofuels can be found in section also provides a brief update on facilities. DDCE have indicated that they Section IV. companies from whom we do not expect do not intend to produce more than In today’s NPRM EPA is proposing a any commercial sales of transportation 150,000 gallons of ethanol in 2011 from range, rather than a single value, for the fuel in 2011 in the U.S. but were the Vonore facility. required 2011 cellulosic biofuel volume. included in prior assessments. Fiberight is another company At a minimum, we believe that a AE Biofuels is a company that plans planning to convert MSW to ethanol. volume of 6.5 million gallons could be to convert corn cobs and corn stover to Fiberight purchased a small corn justified based on currently available ethanol using an enzymatic hydrolysis. ethanol plant in Blairstown, IA and has information. This is the cellulosic They plan to use an integrated process converted it to produce cellulosic biofuel volume that was required in that converts both starch and cellulose ethanol. They use an enzymatic 2010, and absent a waiver for some to ethanol. In August 2008 they opened hydrolysis process, with enzymes

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provided by Novozymes, to convert the structurally complete facility in Bay projects are successful. As with cellulosic waste materials to simple Minette, Alabama with an annual cellulosic ethanol, cellulosic diesel sugars and eventually to ethanol. production capacity of 20 million production has the potential for rapid Fiberight has a unique enzyme recycle gallons of diesel per year. While having growth in 2012 and the following years. and recovery process that allows them a structurally complete facility puts 3. Other Domestic Cellulosic Biofuels to affordably use high concentrations of Cello ahead of many other potential enzymes to increase the speed and biofuel producers they have yet to be We are currently unaware of any conversion rate of the cellulose to able to produce biofuel at anywhere companies in the United States simple sugars. Fiberight plans to begin near the production capacity. They are planning on producing cellulosic ethanol production in the summer of currently assessing feedstock biofuel other than ethanol and diesel 2010 and ramp up to full production preparation and handling issues that and making it commercially available. capacity of 5.7 million gallons of must be resolved before they are able to EPA is currently tracking the efforts of ethanol per year by late 2011. Based on again attempt start up and production at 10 companies that plan to produce fuels company estimates, EPA projects this facility. If these issues are such as gasoline, jet fuel, dimethyl ether Fiberight could produce as much as 2.8 successfully addressed EPA believes (DME), and others. Many of these million gallons of cellulosic ethanol in that Cello could, at most, produce up to companies have reported that they are 2011. 5 million gallons (8.5 million ethanol still developing their technologies and The fifth company that EPA is aware equivalent gallons) of cellulosic diesel waiting for funding, and that they are of with the potential to produce fuel in 2011. not expecting to make any cellulosic cellulosic ethanol in 2011 is KL Energy Another potential producer of fuel commercially available until 2012 Corporation. KL Energy has a small cellulosic biofuel in 2011 is Bell Bio- at the earliest. There are several facility in Upton, Wyoming that uses an Energy. Bell Bio-Energy uses proprietary companies, such as Gevo and Virent, enzymatic hydrolysis process to convert organisms to convert waste materials to with small demonstration facilities who wood chips and wood waste to ethanol. liquid fuels and compost in a single intend to produce other fuels from This facility has a maximum annual step. The company currently has an cellulosic feedstocks, but are currently production volume of 1.5 million agreement in place for the sale of the optimizing their technology with sugar gallons and has been operational since compost they produce and are searching or starch feedstocks. EPA anticipates the fall of 2007. Since KL Energy for a location for their first plant and a that in the future this may be a completed construction on this facility partner to supply the waste materials significant source of cellulosic biofuel, they have been slowly ramping up they intend to use as feedstock. The however we are only expecting production and gathering information to liquid fuel they produce is not a cellulosic ethanol and diesel to be optimize this and future ethanol finished transportation fuel, but could produced in 2011. production facilities. KL has informed be upgraded to jet or diesel fuel. Bell 4. Imports of Cellulosic Biofuel EPA that they intend to produce Bio-Energy is currently working with a 400,000 gallons of cellulosic ethanol refining company to analyze the fuel In addition to the companies located from their Upton, WY facility in 2011. they produce and determine the extent in the United States, EPA is also aware In addition to the five companies of upgrading necessary for the fuel to of two Canadian companies with the mentioned above, EPA is also tracking qualify as transportation fuel. They plan potential for cellulosic biofuel the progress of more than 70 ethanol to begin construction on their first production in 2011. If this fuel was production facilities in various stages facility, which will have an annual fuel imported into the United States, these ranging from construction to planning production capacity of 14.4 million companies would be eligible to stages. Several of these companies, gallons per year, as soon as a suitable participate in the RFS2 program. including Abengoa, BlueFire Ethanol, site and partner are found. The Counting on cellulosic biofuel produced Coskata, Fulcrum, POET, and Vercipia simplicity and low capital costs of Bell internationally in setting the 2011 all intend to begin the production and Bio-Energy’s single step production standard brings with it the additional commercial sale of cellulosic ethanol in process allow them to construct plants uncertainty associated with the fact that 2012. These facilities range in maximum very rapidly, in as little as six weeks. the fuel may be used locally rather than production capacity from 10 to 100 This would make it possible for Bell imported into the United States. million gallons of ethanol. EPA Bio-Energy to produce cellulosic biofuel Iogen uses a steam explosion pre- anticipates a significant increase in the in 2011 despite the fact that they have treatment process followed by production and sale of cellulosic not yet begun construction on their first enzymatic hydrolysis to produce ethanol in 2012, and strong continued commercial scale facility. It is unclear cellulosic ethanol from wheat, oat, and growth in the following years. In when fuel will be produced at this barley straw. They have a demonstration addition, if any of these or other facility, and whether it would qualify facility with an annual production companies accelerates their production under the RFS2 program. If Bell Bio- capacity of 500,000 gallons of ethanol plans to make cellulosic biofuel Energy is successful in producing and located in Ontario, Canada. This facility available for commercial sale in 2011, upgrading their fuel EPA estimates the has been operational and producing we will take those volumes into account maximum volume of fuel they could small volumes of ethanol since 2004. So in our final rule. produce in 2011 would be 7 million far all of the ethanol produced by this gallons (11.9 million ethanol equivalent facility has been used locally and in 2. Domestic Cellulosic Diesel gallons) of jet or diesel fuel. racing and other promotional events. EPA is also aware of two companies EPA is also tracking the progress of 17 Iogen, however, is exploring the in the United States with the potential other facilities that plan to produce possibility of participating in the RFS2 of producing cellulosic diesel fuel in cellulosic diesel. Flambeau Rivers program. If they do decide to import 2011. The first of these companies is Biofuels, New Page, and Terrabon are ethanol to the United States, EPA Cello Energy. Cello Energy plans to use planning on opening commercial scale projects that they could provide as a catalytic depolymerization process to cellulosic diesel facilities in 2012. Both much as 250,000 gallons of cellulosic produce diesel fuel from wood chips Bell Bio-Energy and Cello have plans to ethanol in 2011 based on production and hay. Cello currently has a build additional facilities if their initial volumes from previous years.

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Another Canadian company with the projecting any available cellulosic fuel 5. Summary of Volume Projections potential to produce cellulosic ethanol from Enerkem in 2011. in 2011 is Enerkem. Enerkem plans to While Canada may be the most likely The information EPA has gathered on use a thermo-chemical process to gasify source of imported cellulosic biofuels the potential cellulosic biofuel separated MSW and other waste due to its close proximity, it is possible producers in 2011, summarized in products and then use a catalyst to that cellulosic biofuels produced in Section II.A above, allows us to project convert the synthesis (syn) gas into other countries may be imported into a maximum potentially available biofuel ethanol. Enerkem is currently finishing the United States as well. Another volume for each facility in 2011. After potential source of cellulosic biofuel construction on a 1.3 million gallon per the appropriate ethanol equivalence imports is Brazil, due to its established year facility in Westbury, Quebec and value has been applied to the volumes ethanol industry and history of of those facilities producing diesel fuel, plans to begin producing ethanol in the importing ethanol into the United summer of 2010. They are also planning the overall maximum potentially States. EPA is aware of several available volume of cellulosic biofuels a 10 million gallon per year facility in companies exploring the possibility of Edmonton, Alberta, however production for 2011 can be calculated by summing cellulosic biofuel production in Brazil; the maximum potential of each facility. from this facility is not expected until however none of these companies are EPA is not proposing to set the 2011 2012. Enerkem has informed EPA that likely to make cellulosic biofuels cellulosic biofuel standard at this they plan to market ethanol they commercially available in the United produce locally, and have no intentions States in 2011. With the exception of maximum potentially available volume, to import cellulosic ethanol into the Iogen, as mentioned above, EPA has not rather this is intended to serve as an United States. We are therefore not projected imports of cellulosic biofuels upper bound. This information is from outside the United States in 2011. summarized in Table II.A.5–1 below.

TABLE II.A.5–1—CELLULOSIC BIOFUEL MAXIMUM 2011 POTENTIALLY AVAILABLE VOLUME

Maximum 2011 poten- Ethanol Company name Location Feedstock Fuel Capacity Earliest tially available equivalent (MGY) production volume gallons (MG) (MG)

AE Advanced Keyes, CA ...... Corn, then stover Ethanol ...... 20 June 2011 .... 0.5 0.5 Fuels Keyes. Agresti Biofuels .. Pike County, KY MSW ...... Ethanol ...... 20 Oct. 2011 ..... 1 1 Bell Bio-Energy .. Atlanta, GA ...... MSW or other Diesel Feedstock 14.4 June 2011 .... 7 11.9 cellulosic bio- mass. Cello Energy ...... Bay Minette, AL Wood, hay ...... Diesel ...... 20 Online ...... 5 8.5 DuPont Danisco a Vonore, TN ...... Corn cobs, then Ethanol ...... 0.25 Online ...... 0.15 0.15 switchgrass. Fiberight a ...... Blairstown, IA .... MSW ...... Ethanol ...... 6 April 2010 ..... 2.8 2.8 Iogen ...... Ottawa, Ontario Wheat, oat & Ethanol ...... 0.5 Online ...... 0.25 0.25 barley straw. KL Energy a ...... Upton, WY ...... Wood ...... Ethanol ...... 1.5 Online ...... 0.4 0.4

Total ...... 17.1 25.5 a Maximum Production/Import Potential represents company estimate.

It is important to note that this would have to achieve their production • Not all feedstocks may qualify to maximum potentially available volume targets in their projected timeframes. produce cellulosic RINs; some still of 17.1 million gallons of cellulosic The history of the cellulosic biofuels awaiting evaluation of lifecycle impacts. biofuel, or 25.5 million ethanol industry has many examples of delays • Likelihood that fuels produced equivalent gallons, is not the volume on in achieving full production capacity in internationally will be exported to the which the final 2011 cellulosic biofuel new facilities. Also, there are many United States rather than consumed standard will be based. This number other factors that increase the locally. represents the maximum amount of fuel uncertainty of fuel production facilities Each of the facilities listed in Table EPA believes could reasonably be being able to achieve their maximum II.A.5–1 may experience some of the expected to be produced or imported potential production. These factors may difficulties listed above, and as a result and made available for use as include: may produce a volume of fuel less than that listed as their maximum 2011 transportation fuel, heating oil, or jet • fuel in 2011. It incorporates some Difficulty/delays in securing potentially available volume. Despite reductions from the annual production necessary funding. this uncertainty, EPA believes that the capacity of each facility based on when • Delays in permitting and/or volume of cellulosic biofuel produced the facilities anticipate fuel production construction. in 2011 will, at minimum, be able to will begin and assumptions regarding a • Difficulty in scale up, especially for meet or exceed the 2010 standard of 6.5 million ethanol equivalent gallons. ramp up period to full production. 1st of their kind technologies. However, as stated earlier, in order for However, we will have more detailed • this volume of cellulosic biofuel to be Volumes from pilot and and accurate information for the final produced in 2011, each of the demonstration plants may not be sold rule, including the first round of companies listed in Table II.A.5–1 commercially. Production Outlook Reports, due on

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September 1, 2010 5 which will provide separated municipal solid waste, wastes below the volume specified in the information from each producer or from the forestry industry, and statute. As described in Section II.A importer on the type or types of fuel agricultural residues. Based on the above, even the largest potential they plan to make available, the volume analyses of cellulosic feedstock volumes of cellulosic biofuel supply for of fuel, and the number of RINs they availability in the RFS2 final rule, we 2011 are significantly below the plan to generate for the next five believe that there will be significantly statutory volume of 250 million gallons. calendar years.6 Therefore, in today’s more than enough sources of these Therefore, we must consider whether NPRM we are proposing a range of feedstocks for 2011. For producers that and to what degree to lower the values, from a minimum of 6.5 million intend to use dedicated energy crops, advanced biofuel and total renewable ethanol equivalent gallons to a we do not believe that the availability of fuel standards for 2011. maximum of 25.5 million ethanol existing cropland will limit production As described in the RFS2 final rule, equivalent gallons for the 2011 in 2011. We plan to continue to evaluate we believe it may be appropriate to cellulosic biofuel standard. As time the availability of valid feedstocks in allow excess advanced biofuels to make progresses and we are able to track future years as the required volumes of up some or all of the shortfall in whether or not the cellulosic biofuels cellulosic biofuel increase. cellulosic biofuel. This could include producers are able to meet the Another factor that has the potential excess biomass-based diesel, sugarcane construction and ramp up schedules to limit the amount of renewable fuel ethanol, or other biofuels categorized as they have presented, we will have a that can be produced and used in the advanced biofuel. We believe that better idea of the appropriate volume of U.S. is distribution and storage capacity. Congress wanted to encourage the fuel that we can reasonably expect to be In the longer term, most biofuels are development of advanced renewable produced and made commercially expected to be produced in the fuels and allow in appropriate available in 2011. Additionally, each heartland of the country and then be circumstances for the use of additional year by October 31 EIA is required to shipped towards the coasts, flowing volumes of those fuels in the event that provide an estimate of the volume of roughly in the opposite direction of the projected volume of cellulosic cellulosic biofuel they expect to be sold petroleum-based fuels. The physical and or introduced into commerce in the biofuel falls below the statutory chemical nature of many of these mandate. United States in the following year. EPA biofuels may limit the extent to which will consider this information as well they can be shipped and/or stored If we were to maintain the advanced when finalizing a single volume for use fungibly with petroleum-based fuels. As biofuel and total renewable fuel volume in setting the 2011 cellulosic biofuel a result, new and expanded rail, barge requirements at the levels specified in standard. and tank truck transport will need to be the statute, we estimate that 125–144 Although we are currently projecting put in place. Dedicated biofuels million ethanol-equivalent gallons of that the potentially available volume of pipelines are also being investigated. additional advanced biofuels would be cellulosic biofuel in 2011 will be in the For instance, a short gasoline pipeline needed, depending on the standard we range of 6.5 to 25.5 million ethanol- in Florida is currently shipping batches set for cellulosic biofuel. See Table II.C– equivalent gallons, we expect that of ethanol.7 Evaluations are also 1. volumes of cellulosic biofuel will currently underway regarding the increase rapidly in the years following feasibility of constructing a new TABLE II.C–1—PROJECTED IMPACT OF 2011. As stated before, we are aware of dedicated ethanol pipeline from the CELLULOSIC VOLUME ON USE OF more than 100 companies that are Midwest to the East coast.8 However, for OTHER BIOFUELS IN 2011 actively investigating or making plans to 2011 the volumes of cellulosic biofuel [Mill gallons] produce cellulosic biofuel in the near are small enough that long-distance future. Many of these companies intend transport will be unnecessary; with the Ethanol- to begin construction in 2011 or 2012. Physical exception of foreign-produced biofuels, equivalent volume We will be monitoring these companies much of the cellulosic biofuel volumes volume carefully as we project the potential can be consumed in regions close to Total renewable volumes of cellulosic biofuel for years their production facilities. We also 2012 and beyond. fuel ...... 13,950 13,500– expect existing distribution and storage 13,549 B. Potential Limitations capacity to be sufficient to Conventional re- newable fuel a 12,600 12,600 In addition to production capacity, a accommodate the small increase in cellulosic biofuel volumes in 2011. Total advanced variety of other factors have the biofuel ...... 1,350 900–949 potential to limit the amount of C. Advanced Biofuel and Total Cellulosic biofuel 6.5–25.5 5–17.1 cellulosic biofuel that can be produced Renewable Fuel Biomass-based and used in the U.S. For instance, there Under CAA 211(o)(7)(D)(i), EPA has diesel ...... 1200 800 may be limitations in the availability of the flexibility to reduce the applicable Other advanced biofuel b ...... 125–144 83 c–144 d qualifying cellulosic feedstocks at volume of the advanced biofuel and reasonable prices. Most of the cellulosic total renewable fuel requirements in the a Predominantly corn-starch ethanol. biofuel producers that we project will event that the projected volume of b Rounded to nearest million gallons for sim- produce commercial volumes in 2011 cellulosic biofuel is determined to be plicity. have indicated that they will use some c Lowest volume of other advanced biofuel assumes cellulosic biofuel standard is based type of cellulosic waste, such as 7 Kinder Morgan announcement that their Central on 25.5 mill gallons and only excess biodiesel Florida Pipeline from Tampa to Orlando ships (with an equivalence value (EV) of 1.5) is 5 In future years, Production Outlook Reports will batches of ethanol along with batches of gasoline. used to fill the need for other advanced be due on March 1. As a result, they may be http://www.kindermorgan.com/business/ biofuel. considered during development of the NPRM in products_pipelines/. d Highest volume of other advanced biofuel year 2011 and beyond. 8 ‘‘POET Joins Magellan Midstream Partners to assumes cellulosic biofuel standard is based 6 For more information on the annual production Assess Dedicated Ethanol Pipeline’’, March 2009, on 6.5 mill gallons and only imported sugar- outlook reports see § 80.1449 of the RFS2 http://www.poet.com/news/ cane ethanol (with an EV of 1.0) is used to fill regulations. showRelease.asp?id=155. the need for other advanced biofuel.

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To determine if there are likely to be 2011 can be found in the next Section total renewable fuel standard at 13,950 sufficient volumes of imported II.D below. million gallons, then we would expect sugarcane ethanol and/or excess Based on these projections, there the use of conventional renewable fuels biodiesel to meet the need for 125–144 would be a total of 60 million gallons such as corn ethanol to increase. For million gallons of other advanced of excess biodiesel production (90 instance, if we were to lower the biofuel, we examined historical data on million gallons ethanol-equivalent), advanced biofuel standard by 144 ethanol imports and EIA projections for plus another 202 million gallons of million gallons to 1,206 million gallons, 2011. For instance, as shown in Table imported sugarcane ethanol. The total we would expect the amount of corn- II.C–2 below, recent annual import would therefore be 292 million gallons ethanol used would increase by 144 volumes of ethanol were higher than ethanol-equivalent. Since we are million gallons in order to satisfy the what would be needed in 2011. projecting that the need for other total renewable fuel standard of 13,950 advanced biofuel would be in the range million gallons. According to EIA, TABLE II.C–2—HISTORICAL IMPORTS of 125–144 million gallons depending projected volumes of corn-ethanol are OF ETHANOL on the cellulosic biofuel standard that indeed expected to be higher than we set, 292 million gallons would likely [Mill gallons] 9 12,600 million gallons in 2011, be sufficient. Moreover, the projections producing an excess of 1050 million in Table II.C–3 do not account for other 2007 ...... 439 gallons. See Table II.C–4. 2008 ...... 530 potential sources of advanced biofuels. 2009 ...... 194 For instance, California’s Low Carbon TABLE II.C–4—PROJECTED EXCESS Fuel Standard goes into effect in 2011, CORN ETHANOL IN 2011 and may compel some refiners to import Brazilian imports have made up a [Mill gallons] sizeable portion of total ethanol additional volumes of sugarcane ethanol imported into the U.S. However, as from Brazil into California. These same shown above, these import volumes volumes could count towards the decreased significantly in 2009. Part of Federal RFS2 program as well. There Total domestic corn ethanol produc- the reason for this decline in imports is may also be other types of advanced tion 13 ...... 13,650 the cessation of the duty drawback that biofuel not included in the EIA Corn ethanol needed to meet total became effective on October 1, 2008, but projections that could help meet our renewable fuel standard ...... 12,600 Excess corn ethanol ...... 1050 also changes in world sugar prices.10 projected shortfall. These other However, Brazil produces the most advanced biofuels include, for instance, 13 EIA STEO, June 2010, Table 8. renewable fuels made from separated ethanol in the world, reaching about 9 However, the market potential for 11 yard and food waste such as waste billion gallons in 2008. Thus if there ethanol in the U.S. is also a function of were a demand in the U.S. in 2011 for cooking oil or restaurant grease used as a diesel fuel additive. Finally, the ethanol blender’s tax credit, set to 125–144 million gallons of advanced expire at the end of 2010. If this tax biofuel, it may be economical for Brazil additional market demand for imported sugarcane ethanol and biodiesel would credit is not renewed, the excess ethanol to export at least this volume of volume shown in Table II.C–4 may be sugarcane ethanol to the U.S. likely be created if we chose not to lower the advanced biofuel standard for smaller. Thus, while we are proposing EIA’s projections for 2011 suggest that that the required volume of total there may be sufficient volumes of 2011. Given these factors, we believe that there are likely to be sufficient renewable fuel for 2011 be set at the imported sugarcane ethanol and excess statutory level of 13.95 billion gallons, biodiesel production to make up for our volumes of other advanced biofuels such that the advanced biofuel standard we request comment on whether the proposed reduction in the required total renewable fuel standard should be volume of cellulosic biofuel. See Table need not be lowered below 1.35 billion gallons. Thus, we are proposing to leave lowered. II.C–3. the required volume of advanced biofuel D. Biomass-Based Diesel for 2011 at 1.35 billion gallons. TABLE II.C–3—EIA PROJECTED IM- Nevertheless, we request comment on While the statutory requirement that PORTED ETHANOL AND BIODIESEL whether we should lower the advanced we project volumes of cellulosic biofuel AVAILABILITY IN 2011 biofuel standard. If we do lower the for next year does not explicitly apply [Mill gallons] 12 advanced biofuel standard, we request to biomass-based diesel as well, there comment on the degree to which we are two other statutory requirements Imported ethanol ...... 202 should take into account other potential that compel us to investigate current Total domestic biodiesel production 860 sources of advanced biofuel as and potential future volumes of Biodiesel needed to meet biomass- discussed above. biomass-based diesel. First, the Clean based diesel standard ...... 800 If we lower the cellulosic biofuel Air Act provides limited waiver Excess biodiesel ...... 60 standard, we would also need to authority specific to biomass-based determine if the total renewable diesel under 211(o)(7)(E) if a significant Further discussion of the potential standard should be lowered. Lowering renewable feedstock disruption or other availability of biomass-based diesel in both the advanced biofuel standard and market circumstance would make the the total renewable fuel standard by the price of biomass-based diesel fuel 9 ‘‘Monthly U.S. Imports of Fuel Ethanol,’’ EIA, same amount would mean that the increase significantly. Second, as released 4/8/2010. described more fully in Section II.C 10 Lundell, Drake, ‘‘Brazilian Ethanol Export expected amount of conventional Surge to End; U.S. Customs Loophole Closed Oct. renewable fuel use, such as corn- above, we must determine whether the 1,’’ Ethanol and Biodiesel News, Issue 45, November ethanol, would remained unchanged at required volumes of advanced biofuel 4, 2008. 12,600 million gallons ethanol and/or total renewable fuel should be 11 Renewable Fuels Association (RFA), ‘‘2008 equivalent, the same as shown in Table reduced at the same time that we reduce World Fuel Ethanol Production,’’ http:// www.ethanolrfa.org/industry/statistics/#E, March II.C–1. the required volume of cellulosic 31, 2009. If instead we were to lower the biofuel. The amount of biomass-based 12 EIA STEO, June 2010, Table 8. advanced biofuel standard but retain the diesel that we project can be available

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will directly affect our consideration of in the U.S. was estimated at 2.2 billion as economic conditions improved, to an adjustments to the volumetric gallons per year across approximately annualized rate of around 646 mill gal requirements for advanced biofuel and 137 facilities.14 Biodiesel production for per year. Meanwhile, exports appeared total renewable fuel. calendar year 2009, according to the to stabilize at an annualized rate of To project biodiesel production most recently available information, was about 242 mill gal per year, after volumes for 2011, we examined both 540 million gallons, with an estimated recovering from changes in European production capacity of the industry as 351 mill gallons (or 65%) being used import regulations early in the year. well as actual recent production rates. domestically. Domestic production rates These trends for 2009 are shown As of April 2010, the aggregate in the second half of 2009 increased inFigure II.D–1. production capacity of biodiesel plants above production rates in the first half

In the early part of 2010, industry industry in meeting the 2010 volume 2010, it would be significantly lower reports of monthly biodiesel production mandate and thus its preparedness for than the current 2.2 billion gallon indicated that production rates have 2011. biodiesel production capacity of the dropped below the 2009 average. The In order to meet a 2011 biomass-based industry. Indications from the biodiesel most likely cause is the expiration of the diesel volume requirement of 0.8 billion industry are that these idled facilities biodiesel tax credit. However, EIA’s gallons to be consumed in the United can be brought back into production Short-Term Energy Outlook projects States, the biodiesel industry will need with a relatively short leadtime, and can that, for the year as a whole, average to produce approximately 725 million thus meet the 2011 requirements for monthly biodiesel production rates in gal of fuel. This value accounts for the biomass-based diesel. Moreover, as 2010 will actually exceed those in 2009. production of 75 million gallons of shown in Table II.C–3, EIA is projecting The projected increase in monthly renewable diesel at one renewable that biodiesel availability will in fact biodiesel production rates later in 2010 diesel facility in Geismar, Louisiana, set exceed the minimum volume needed to is consistent with the fact that obligated to begin operations later this year.16 meet the biomass-based diesel standard parties are not required to demonstrate Assuming imports and exports continue in 2011. compliance with the 2010 biomass- at a rate equivalent to that in the second Finally, we believe that there will be based diesel volume requirement of 1.15 half of 2009, biodiesel production in the sufficient sources of qualifying billion gallons until February 28, 2011. U.S. would need to total approximately renewable biomass to meet the needs of For development of our final rule setting 900 million gal in 2011. While this the biodiesel industry in 2011. The the standards for 2011, we will have production rate would be about 10% largest sources of feedstock for biodiesel more complete data with which to higher than the production rate in 2011 are expected to be soy oil, evaluate the progress of the biodiesel projected by EIA for the second half of rendered fats, and potentially some corn

14 Figures taken from National Biodiesel Board 15 Data taken from Energy Information 16 Project status updates are available via the list of operating plants as of April 5, 2010. Administration Monthly Energy Review, Table 10.4, Syntroleum Web site, http://dynamicfuelsllc.com/ March 2010. wp-news/.

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oil extracted during production of fuel are used by each refiner, blender or As discussed in Section II.A.5, we are ethanol, as this technology continues to importer to determine their renewable proposing a required volume of proliferate. Moreover, comments we volume obligations (RVO). Since there cellulosic biofuel for 2011 in the range received from a large rendering are four separate standards under the of 5–17.1 million gallons (6.5–25.5 company after the May 2009 RFS2 RFS2 program, there are likewise four million ethanol equivalent gallons). The proposed rule suggest that there will be separate RVOs applicable to each single volume we select for the final adequate fats and greases feedstocks to obligated party. Each standard applies rule will be used as the basis for setting supply biofuels production as well as to the sum of all gasoline and diesel the percentage standard for cellulosic other historical uses.17 produced or imported. The applicable biofuel for 2011. We are also proposing percentage standards are set so that if that the advanced biofuel and total III. Proposed Percentage Standards for each regulated party meets the renewable fuel volumes would not be 2011 percentages, then the amount of reduced below the statutory A. Background renewable fuel, cellulosic biofuel, requirements. The proposed 2011 biomass-based diesel, and advanced volumes used to determine the four The renewable fuel standards are biofuel used will meet the volumes percentage standards are shown in expressed as a volume percentage, and required on a nationwide basis. Table III.A–1.

TABLE III.A–1—PROPOSED VOLUMES FOR 2011

Ethanol equivalent Actual volume volume

Cellulosic biofuel ...... 5–17.1 mill gal ...... 6.5–25.5 mill gal. Biomass-based diesel ...... 0.80 bill gal ...... 1.20 bill gal. Advanced biofuel ...... 1.35 bill gal ...... 1.35 bill gal. Renewable fuel ...... 13.95 bill gal ...... 13.95 bill gal.

The formulas used in deriving the subject to the standards. Since the B. Calculation of Standards annual renewable fuel standards are standards apply to producers and 1. How are the standards calculated? based in part on an estimate of importers of gasoline and diesel, these combined gasoline and diesel volumes, are the transportation fuels used to set The following formulas are used to for both highway and nonroad uses, for the standards, and then again to calculate the four percentage standards the year in which the standards will determine the annual volume applicable to producers and importers apply. Producers of other transportation obligations of an individual producer or of gasoline and diesel (see § 80.1405): fuels, such as natural gas, propane, and importer. electricity from fossil fuels, are not

RFV Std =×100% CB, i CB, i ()− +−()−+−()+−()− Gii RG GS i RGS i GE iii D RD DS i RDDSii DE RFV ×15. Std =×100% BBD, i BBD, i ()− +−()− +−()+−()− Gii RG GS i RGS i GEiiiD RD i DS i RDS i DE i RFV Std =×100% AB, i AB, i ()− + ()− −+−()+−()− GRGGSii iRGSiiiii GE D RD DS RDS ii DE RFV Std =×100% RF, i RF, i ()− +−()−+−()+−()− Gi RGiiiiiiiii GS RGS GE D RD DS RDS DE

Where RFVCB,i = Annual volume of cellulosic Gi = Amount of gasoline projected to be used biofuel required by section 211(o) of the in the 48 contiguous states and Hawaii, StdCB,i = The cellulosic biofuel standard for year i, in percent. Clean Air Act for year i, in gallons. in year i, in gallons. RFV = Annual volume of biomass-based D = Amount of diesel projected to be used Std = The biomass-based diesel standard BBD,i i BBD,i diesel required by section 211(o) of the in the 48 contiguous states and Hawaii, (ethanol-equivalent basis) for year i, in Clean Air Act for year i, in gallons. in year i, in gallons. percent. RFVAB,i = Annual volume of advanced RGi = Amount of renewable fuel blended into StdAB,i = The advanced biofuel standard for biofuel required by section 211(o) of the gasoline that is projected to be consumed year i, in percent. Clean Air Act for year i, in gallons. in the 48 contiguous states and Hawaii, StdRF,i = The renewable fuel standard for year RFVRF,i = Annual volume of renewable fuel in year i, in gallons. i, in percent. required by section 211(o) of the Clean RDi = Amount of renewable fuel blended into Air Act for year i, in gallons. diesel that is projected to be consumed

17 See Federal Register v.74 n.99 p.24903. Comments are available in docket EPA–HQ–OAR– 2005–0161.

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in the 48 contiguous states and Hawaii, by the most recent Annual Energy the biomass-based diesel standard, but in year i, in gallons. Outlook (AEO). For the purposes of this worth 1.5 gallons toward the other GSi = Amount of gasoline projected to be proposal, we have used the Early standards. used in Alaska or a U.S. territory in year i if the state or territory opts-in, in Release version of AEO2010. Gasoline The levels of the percentage standards gallons. and diesel volumes are adjusted to would be reduced if Alaska or a U.S. RGSi = Amount of renewable fuel blended account for renewable fuel contained in territory chooses to participate in the into gasoline that is projected to be the EIA projections. Beginning in 2011, RFS2 program, as gasoline and diesel consumed in Alaska or a U.S. territory in gasoline and diesel volumes produced produced in or imported into that state year i if the state or territory opts-in, in by small refineries and small refiners or territory would then be subject to the gallons. are not exempt, and thus there is no standard. Neither Alaska nor any U.S. DSi = Amount of diesel projected to be used adjustment to the gasoline and diesel in Alaska or a U.S. territory in year i if territory has chosen to participate in the the state or territory opts-in, in gallons. volumes in today’s proposal to account RFS2 program at this time, and thus the RDSi = Amount of renewable fuel blended for such an exemption, as there has been value of the related terms in the into diesel that is projected to be in past years. However, as discussed calculation of the standards is zero. consumed in Alaska or a U.S. territory in more fully in Section III.B.2 below, Note that the terms for projected year i if the state or territory opts-in, in depending upon the results of a volumes of gasoline and diesel use gallons. Congressionally-mandated DOE study, it include gasoline and diesel that has GEi = The amount of gasoline projected to be is possible that the exemption for been blended with renewable fuel. produced by exempt small refineries and small refiners in year i, in gallons, in any gasoline and diesel volumes produced Because the gasoline and diesel volumes year they are exempt per §§ 80.1441 and by small refineries and small refiners described above include renewable fuel 80.1442, respectively. For 2011, this may be extended. In addition, EPA may use, we must subtract the total value is zero. See further discussion in extend the exemption for individual renewable fuel volume from the total Section III.B.2 below. small refineries on a case-by-case basis gasoline and diesel volume to get total DEi = The amount of diesel projected to be if they demonstrate disproportionate non-renewable gasoline and diesel produced by exempt small refineries and economic hardship. volumes. The values of the variables small refiners in year i, in gallons, in any year they are exempt per §§ 80.1441 and As finalized in the March 26, 2010 described above are shown in Table 80.1442, respectively. For 2011, this RFS2 rule, the standards are expressed III.B.1–1. Terms not included in this value is zero. See further discussion in in terms of energy-equivalent gallons of table have a value of zero. Section III.B.2 below. renewable fuel, with the cellulosic The four separate renewable fuel biofuel, advanced biofuel, and total TABLE III.B.1–1—VALUES FOR TERMS standards for 2011 are based on the 49- renewable fuel standards based on IN CALCULATION OF THE STANDARDS state gasoline and diesel consumption ethanol equivalence and the biomass- [Bill gallons] volumes projected by EIA. The Act based diesel standard based on biodiesel requires EPA to base the standards on equivalence. However, all RIN Term Value an EIA estimate of the amount of generation is based on ethanol- gasoline and diesel that will be sold or equivalence. More specifically, the RFVCB,2011 ...... 0.0065–0.0255 introduced into commerce for that year. RFS2 regulations provide that RFVBBD,2011 ...... 0.80 RFV ...... 1.35 The projected volume of gasoline used production or import of a gallon of AB,2011 RFVRF,2011 ...... 13.95 to calculate the final percentage biodiesel will lead to the generation of G2011 ...... 139.66 standards will continue to be provided 1.5 RINs. In order to ensure that demand D2011 ...... 50.01 by the October issue of EIA’s Short- for 0.8 billion physical gallons of RG2011 ...... 13.38 Term Energy Outlook (STEO). For the biomass-based diesel will be created in RD2011 ...... 0.74 purposes of this proposal, we have used 2011, the calculation of the biomass- the March 2010 issue of STEO. The based diesel standard provides that the Using the volumes shown in Table projected volume of transportation required volume be multiplied by 1.5. III.B.1–1, we have calculated the diesel used to calculate the final The net result is a biomass-based diesel proposed percentage standards for 2011 percentage standards will be provided gallon being worth 1.0 gallons toward as shown in Table III.B.1–2.

TABLE III.B.1–2—PROPOSED PERCENTAGE STANDARDS FOR 2011

Cellulosic biofuel ...... 0.004–0.015% Biomass-based diesel ...... 0.68% Advanced biofuel ...... 0.77% Renewable fuel ...... 7.95%

2. Small Refineries and Small Refiners temporary exemption to the few and diesel produced by small refineries In CAA section 211(o)(9), enacted as remaining small refiners that met the and small refiners in 2010 from the part of EPAct, Congress provided a Small Business Administration’s (SBA) renewable fuels standard (unless the temporary exemption to small refineries definition of a small business (1,500 exemption was waived), see 40 CFR (those refineries with a crude employees or less company-wide) but § 80.1141. throughput of no more than 75,000 did not meet the statutory small refinery Under the RFS program, Congress has barrels of crude per day) through definition as noted above. Because EISA provided two ways that small refineries December 31, 2010. In RFS1, we did not alter the small refinery can receive a temporary extension of the exercised our discretion under section exemption in any way, the RFS2 exemption beyond 2010. One is based 211(o)(3)(B) and extended this program regulations exempt gasoline on the results of a study conducted by

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the Department of Energy (DOE) to action to extend the exemption. actively preparing for production. This determine if small refineries would face However, until and unless a DOE study smaller group of companies formed the a disproportionate economic hardship supporting an extension to the basis for our projection of potential 2011 under the RFS program. The other is temporary exemption for small volumes of cellulosic biofuel. based on EPA determination of refineries beyond 2010 is used, or any This section discusses the full range disproportionate economic hardship on petitions to EPA from individual small of cellulosic biofuel technologies being a case-by-case basis in response to refineries claiming disproportionate considered among producers, with refiner petitions. economic hardship are approved, we are reference to those individual companies In January 2009, DOE issued a Small not proposing to change the required that are focusing on each technology Refineries Exemption Study which did inclusion of small refineries and small and those we project will be most likely not find that small refineries would face refiners in the RFS2 program beginning to use those technologies to produce a disproportionate economic hardship with the 2011 compliance period. cellulosic biofuel in 2011. under the RFS program. The IV. Cellulosic Biofuel Technology conclusions were based in part on the A. What pathways are valid for the Assessment expected robust availability of RINs and production of cellulosic biofuel? EPA’s ability to grant relief on a case-by- In projecting the volumes of cellulosic In determining the appropriate case basis. Subsequently, Congress biofuel for 2011, we conducted a volume of cellulosic biofuel on which to directed DOE to complete a technical assessment of the production base the percentage standard for 2011, reassessment and issue a revised report technologies that are under we must ensure that the production by June 30, 2010. DOE had not revised consideration by the broad universe of facilities we use as the basis for this its study at the time of the RFS2 final companies we investigated. Many of volume are using fuel pathways that are rulemaking nor at the time of this these companies are still in the research valid for the production of cellulosic writing. Additionally, we have not phase, resolving outstanding issues with biofuel. In general this means that each received any requests for relief on a specific technologies, and/or in the facility’s pathway (combination of case-by-case basis from any small design phase to implement those feedstock, production process, and fuel refinery. If DOE prepares a revised technologies for the production of type) must be included in Table 1 to study, and the results of that study show commercial-scale volumes of cellulosic § 80.1426 and be assigned a D code of a disproportionate economic hardship biofuel. A subset of the companies we either 3 or 7. As of this writing, there for any small refineries under the RFS investigated have moved beyond the are three valid pathways available as program, we will take appropriate research and design phase and are shown in Table IV.A–1 below.

TABLE IV.A–1—CELLULOSIC BIOFUEL PATHWAYS FOR USE IN GENERATING RINS

Production process require- Fuel type Feedstock ments D–Code

Ethanol ...... Cellulosic Biomass from agricultural residues, slash, for- Any ...... 3 (cellulosic biofuel). est thinnings and forest product residues, annual covercrops; switchgrass, and miscanthus; cellulosic components of separated yard wastes; cellulosic components of separated food wastes; and cellulosic components of separated MSW. Cellulosic Diesel, Jet Fuel Cellulosic Biomass from agricultural residues, slash, for- Any ...... 7 (cellulosic diesel). and Heating Oil. est thinnings and forest product residues, annual covercrops, switchgrass, and miscanthus; cellulosic components of separated yard wastes; cellulosic components of separated food wastes; and cellulosic components of separated MSW. Cellulosic Naphtha ...... Cellulosic Biomass from agricultural residues, slash, for- Fischer-Tropsch process .... 3 (cellulosic biofuel). est thinnings and forest product residues, annual covercrops, switchgrass, and miscanthus; cellulosic components of separated yard wastes; cellulosic components of separated food wastes; and cellulosic components of separated MSW.

Of the eight facilities that we are currently allowed as a valid threshold required for cellulosic biofuel, currently believe could contribute to the feedstock are those derived from various we expect that it will be added to Table volume of commercially available types of waste. If either of these two 1 to § 80.1426 in time to apply to fuel cellulosic biofuel in 2011, six would companies choose to use trees from a produced in 2011. For the purposes of produce ethanol from cellulosic biomass tree plantation instead of qualifying this proposal, we have chosen to retain and two would produce diesel from waste wood, its pathway would not fall the volumes from these two companies cellulosic biomass. None of the facilities into the any of the pathways currently in our projections of 2011 cellulosic we have evaluated would produce listed in Table 1 to § 80.1426. However, biofuel volume, but we will revisit this cellulosic naphtha through a Fischer- as described more fully in Section V.A, issue for the final rule. Tropsch process. we are currently evaluating the lifecycle B. Cellulosic Feedstocks Two of the facilities shown in Table GHG impacts of biofuel made from II.A.5–1, Cello Energy and KL Energy, pulpwood, including wood from tree Cellulosic biofuel technologies are intend to use wood as the primary plantations. If such a pathway is different from other biofuel technologies feedstock. The only types of wood that determined to meet the 60% GHG because they convert the cellulose and

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other very difficult to convert fermented into ethanol, but could be understanding the technologies, and compounds into biofuels. Unlike grain burned as a by-product to generate also simplifies our understanding of the feedstocks where the major electricity. Thermochemical, pyrolysis costs and lifecycle impacts of these carbohydrate is starch (very simply and depolymerization processing, technologies because similar combined sugars), lignocellulosic however, can convert some or even most technologies likely have similar cost biomass is composed mainly of of the lignin, in addition to the and lifecycle impacts. The simplest cellulose (40–60%) and hemicellulose cellulosic and hemicellulose, into organization is by the fuel produced. 18 (20–40%). Cellulose and biofuels. However, we frequently found that hemicellulose are made up of sugars additional subdivisions were also linked together in long chains called C. Emerging Technologies helpful. Table IV.C–1 provides a list of polysaccharides. Once hydrolyzed, they When evaluating the array of biofuel technologies, the cellulosic fuels can be fermented into ethanol. Most all technologies which could produce one produced and a list of many of the the remainder of cellulosic feedstocks or more fuels from cellulose that could consists of lignin, a complex polymer qualify under RFS2, we found that it is companies which we learned are which serves as a stiffening and helpful to organize them into fuel pursuing the technology (or something hydrophobic (water-repelling) agent in technology categories. Organizing them very similar to the technology listed in cell walls. Currently, lignin cannot be into categories eases the task of the category).

TABLE IV.C–1—LIST OF TECHNOLOGY CATEGORIES, THE FUELS PRODUCED THROUGH EACH TYPE OF TECHNOLOGY, AND THE COMPANIES PURSUING THEM

Technology category Technology Fuels produced Companies

Biochemical ...... Enzymatic Hydrolysis ...... Ethanol ...... Abengoa, AE Fuels, DuPont Danisco, Florida Crystals, Gevo, Poet, ICM, Iogen, BPI, Energy, Fiberight, KL Energy. Acid Hydrolysis ...... Ethanol ...... Agresti, Arkenol, Blue Fire, Pencor, Pangen, Raven Biofuels. Dilute Acid, Steam Explosion of Cel- Ethanol ...... Verenium, BP, Central Minnesota lulose. Ethanol Coop. Consolidated Bioprocessing (one step Ethanol ...... Mascoma, Qteros. hydrolysis and fermentation) of Cel- lulose. Conversion of Cellulose via carboxylic Ethanol, Gasoline, Jet Fuel, Terrabon, Swift Fuels. acid. Diesel Fuel. One step Conversion of Cellulose to Diesel, Jet Fuel or Naphtha ... Bell Bioenergy, LS9. distillate. Thermochemical ...... Thermochemical/Fischer Tropsch ...... Diesel Fuel and Naphtha ...... Choren, Flambeau River Biofuels, Baard, Clearfuels, Gulf Coast En- ergy, Rentech, TRI. Thermochemical/Fischer Tropsch ...... DME ...... Chemrec, New Page. Thermochemical/Catalytic conversion Ethanol ...... Range Fuels, Pearson Technologies, of syngas to alcohols. Fulcrum Bioenergy, Enerkem, and Gulf Coast Energy. Hybrid ...... Thermochemical w/Biochemical cata- Ethanol ...... Coskata, INEOS Bio. lyst. Acid Hydrolysis of cellulose to inter- Ethanol, Other alcohols ...... Zeachem. mediate; hydrogenation using Thermochemical syngas from non- cellulose fraction. Depolymerization ...... Catalytic Depolymerization of Cel- Diesel, Jet Fuel or Naphtha ... Cello Energy. lulose. Pyrolysis of Cellulose ...... Diesel, Jet Fuel, or Gasoline Envergent (UOP/Ensyn), Dynamotive, Petrobras, Univ. of Mass, KIOR. Other ...... Catalytic Reforming of Sugars from Gasoline...... Virent. Cellulose.

Of the technologies listed above, developing. This summary is not meant companies. EPA has not been able to many of them are considered to be to be an unabridged list of new biofuel confirm all of the information, ‘‘second generation’’ biofuels or new technologies, but rather a description of statements, process conditions, and the biofuel technologies capable of meeting some of the more prominent of the new process flow steps necessary for any of either the advanced biofuel or cellulosic biofuel technologies that serve to these processes and companies. biofuel RFS standard. The following provide a sense of the technology 1. Biochemical sections describe specific companies categories listed above. The process and the new biofuel technologies which technology summaries are based on Biochemical conversion refers to a the companies have developed or are information provided by the respective broad grouping of processes that use

18 DOE. ‘‘Biomass Program: ABC’s of Biofuels’’. Accessed at: http://www1.eere.energy.govbiomass/ abcs_biofuels.html#content.

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biological organisms to convert particle size of the incoming feedstock converted into simple sugars, usually cellulosic feedstocks into biofuels. and removes any contaminants that may using an enzyme or strong acid. In the While no two processes are identical, negatively impact the rest of the fermentation or fuel conversion step, the many of these processes follow a similar process. In the pretreatment step the simple sugars are converted to the basic pathway to convert cellulosic structure of the lignin and desired fuel by a biological organism. In materials to biofuel. The general process hemicellulose is disrupted, usually the final step the fuel that is produced of most biochemical cellulosic biofuel using some combination of heat, is separated from the water and other processes consists of five main steps: pressure, acid, or base, to allow for a byproducts by distillation or some other feedstock handling, pretreatment, more effective hydrolysis of the means. A basic diagram of the hydrolysis, fermentation/fuel cellulosic material to simple sugars. In biochemical conversion process can be conversion, and distillation/separation. the hydrolysis stage the cellulose and found in Figure IV.C.1–1 below. The feedstock handling step reduces the any remaining hemicellulose is

While this diagram shows the scale, making smaller and less capital reduce the size of the material they production of ethanol from cellulosic intensive commercial facilities more receive as needed for their process. In biomass, it is possible to use the same feasible. The following sections, as well coming years, as the market for process to produce other fuels or as a technical memorandum that has cellulosic materials expands, specialty chemicals using different been added to the docket 20, provide purchasing feedstock that has already biological organisms. more information on the biochemical been ground or chipped may be possible The following sections will discuss processes being pursued by majority of and cost effective, as these processes each of these steps in greater detail, the companies we expect to produce increase the density of this material and discuss some of the variations to this cellulosic biofuels and make them may reduce transportation costs. general process, and discuss some of the commercially available in 2011, as well advantages and disadvantages of the as many other companies planning to In addition to size reduction, steps biochemical process of producing begin production in later years. must also be taken to remove any biofuel from cellulosic materials as material from the feedstock that might compared to other fuel production a. Feedstock Handling be detrimental to the fuel production processes. The first step of the biochemical process. Contaminants in the feedstock, Seven of the eight companies that conversion process is to insure that the such as dirt, rocks, plastics, metals, and EPA believes may produce cellulosic biomass stream can be utilized by the other non-biogenic materials, would at biofuel in 2011 plan to use a rest of the conversion process. This best travel through the fuel production biochemical process to produce most often takes the form of size process unchanged, resulting in reduced biofuels. Five of these companies, AE reduction, either by grinding or fuel production capacity. Depending on Biofuels, Dupont Danisco Cellulosic chipping as appropriate for the type of the type of contaminant they may also Ethanol, Fiberight, Iogen, and KL biomass. While this is a relatively be converted to undesired byproducts energy, all plan to use an enzymatic simple process it is essential to allow that must be separated from the fuel. hydrolysis, while Agresti Biofuels and the following steps of the process to They could also be toxic to the Bell Bio-Energy are pursuing gravity function as designed. It is also a biological organisms being used to pressure vessel and single step process potentially energy intensive process. It convert the sugars to fuel, necessitating technologies, respectively. The main may be possible for biofuel producers to a shut down and restart of the plant. reason for the dominance of purchase cellulosic material that is Any of these scenarios would result in biochemical technologies in 2011 is the already of the appropriate size, however a significant cost to the fuel producer. relatively low capital costs of these we believe that in the near term this is projects compared to other cellulosic Feedstocks such as agricultural unlikely and most biofuel producers residues, wood chips, or herbaceous or biofuel facilities. Biochemical projects will have to invest in equipment to also benefit less from economies of woody energy crops are likely to contain far fewer contaminants than more 20 Wyborny, Lester. ‘‘In-Depth Assessment of 19 Image From: http://www.afdc.energy.gov/afdc/ Advanced Biofuels Technologies.’’ Memo to the heterogeneous feedstocks such as ethanol/production_cellulosic.html. docket, May 2010. municipal solid waste (MSW).

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b. Biomass Pretreatment hydrolysis and fuel production steps but combination with any of the The purpose of the biomass is carried through these processes until pretreatment processes described above, pretreatment stage is to disrupt the it is separated out in the fuel separation provided that the structure of the structure of the cellulosic biomass to step and burned for process energy or lignocellulosic feedstock has been allow for the hydrolysis of the cellulose sold as a co-product. disrupted enough to allow the enzymes to easily access the hemicellulose and and hemicellulose into simple sugars. i. Acid Hydrolysis The ideal pretreatment stage would cellulose. After the feedstock has gone Acid hydrolysis is a technique that allow for a high conversion of the through pretreatment a cocktail of has been used for over 100 years to cellulose and hemicellulose to simple cellulose enzymes is added. These convert cellulosic feedstocks into fuels. sugars, minimize the degradation of enzymes can be produced by the In the acid hydrolysis process the lignin these sugars to undesired forms that cellulosic biofuel producer or purchased and cellulose portions of the feedstock reduce fuel yields and inhibit from enzyme producers such as that remain after the hemicellulose has fermentation, not require especially Novozymes, Genencor, and others. The been dissolved, hydrolyzed, and large or expensive reaction vessels, and exact mixture of enzymes used in the separated during the dilute acid be a relatively robust and simple enzymatic hydrolysis stage can vary pretreatment process is treated with a process. No single biomass pretreatment greatly depending on which of the second acid stream. This second acid method has yet been discovered that pretreatment stages is used as well as treatment uses a less concentrated acid meets all of these goals, but rather a the composition of the feedstock. than the pretreatment stage but at a variety of options are being used by The main advantages of the enzymatic higher temperature, as high as 215° C. various cellulosic fuel producers, each hydrolysis process are a result of the This treatment hydrolyzes the cellulose with their own strengths and mild operating conditions. Because no into glucose and other 6 carbon sugars weaknesses. Dilute acid pretreatment acid is used special materials are not that are then fed to biological organisms and alkaline pretreatment are two required for the reaction vessels. to produce the desired fuel. It is methods currently being used that Enzymatic hydrolysis is carried out at necessary to hydrolyze the attack the hemicellulose and lignin relatively low temperatures, usually hemicellulose and cellulose in two ° portions of the cellulosic biomass around 50 C, and atmospheric pressure separate steps to prevent the conversion respectively. Other methods, such as and therefore has low energy of the pentose sugars that result from steam explosion and ammonia fiber requirements. These conditions also the hydrolysis of the hemicellulose from expansion, seek to use high temperature result in less undesired reactions that being further converted into furfural and and pressure, followed by rapid would reduce the production of sugars other chemicals. This would not only decompression to disrupt the structure and potentially inhibit fuel production. reduce the total production of sugars of the cellulosic biomass and allow for Enzymatic hydrolysis works best with a from the cellulosic feedstock, but also a more efficient hydrolysis of the uniform feedstock, such as agricultural inhibit the production of fuel from the cellulose and hemicellulose to simple residues or energy crops, where the sugars in later stages of the process. concentration and combination of sugars. Each of these methods is The acidic solution containing the discussed in more detail in a technical enzymes can be optimized for maximum sugars produced as a result of the sugar production. If the composition of memo that has been added to the hydrolysis reaction must also be treated docket.21 The cost and characteristics of the feedstock varies daily, as can be the so that this stream can be fed to the case with fuel producers utilizing MSW the cellulosic feedstock being processed biological organisms that will convert is likely to have a significant impact on or other waste streams, or even these sugars into fuel. In order to the pretreatment process that is used. seasonally, it would make it more operate an acid hydrolysis process cost difficult to ensure that the correct c. Hydrolysis effectively the acid must be recovered, enzyme cocktail is being used to carry In the hydrolysis step the cellulose not simply neutralized. Methods out the hydrolysis as efficiently as and any remaining hemicellulose are currently being used to recover this acid possible. The main hurdle to using an converted to simple sugars. There are include membrane separation and enzymatic hydrolysis has been and two main methods of hydrolysis, acid continuous ion exchange. The continues to be the costs of the hydrolysis and enzymatic hydrolysis. advantages of using an acid hydrolysis enzymes. Recent advances by Acid hydrolysis is the oldest technology are that this process is well understood companies that produce enzymes for the for the conversion of cellulosic and capable of producing high sugar hydrolysis of cellulosic materials have feedstock to ethanol and can only be yields from a wide variety of feedstocks. resulted in a drastic cost reduction of used following an acid pretreatment Capital costs are high however, as these enzymes. If, as many researchers process. An alternative method is to use materials compatible with the acidic and cellulosic biofuel producers expect, a combination of enzymes to perform streams must be extensively utilized. the cost of these enzymes continues to the hydrolysis after the biomass has The high temperatures necessary for fall it is likely that enzymatic hydrolysis been pretreated. This process is acid hydrolysis also result in will be a lower cost option than acid potentially more effective at considerable energy costs, and hydrolysis, especially for cellulosic hydrolyzing pretreated biomass but in profitability is highly dependent on the biofuel producers utilizing uniform the past has not been economically ability to effectively recover and reuse feedstocks. the acid. feasible due to the prohibitively high d. Fuel Production cost of the enzymes. The falling cost of ii. Enzymatic Hydrolysis After the cellulosic biomass has been these enzymes in recent years has made The enzymatic hydrolysis process hydrolyzed to simple sugars this sugar the production of cellulosic biofuels uses enzymes, rather than acids, to solution is converted to fuel by using enzymatic hydrolysis possible. hydrolyze the cellulose and any biological organisms. In some The lignin is largely unaffected by the remaining hemicellulose from the biochemical fuel production processes 21 Wyborny, Lester. ‘‘In-Depth Assessment of pretreatment process. This process is the sugars produced from the Advanced Biofuels Technologies.’’ Memo to the much more versatile than the acid fermentation of the hemicellulose, docket, May 2010. hydrolysis and can be used in which are mainly five carbon sugars, are

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converted to fuel in a separate reactor conventional vehicles without strict byproduct of the fuel production and with a different set of organisms blending limits. They could also be process. The waste water is either than the sugars produced from the transported by existing pipelines and recycled or sent to a water treatment cellulose hydrolysis, which are mainly utilize the same infrastructure as the facility. six carbon sugars. Others processes, petroleum industry. Some of the f. Process Variations however, produce fuel from the five and processes being researched by fuel six carbon sugars in the same reaction producers produce a single compound, While the process described above vessel. such as iso-octane, that would need to outlines the general biochemical process A wide range of biological organisms be blended into petroleum gasoline in used by many cellulosic biofuel can be used to convert the simple sugars order to be used while others produce producers, there are several prominent into fuel. These include yeasts, bacteria, a range of hydrocarbons very similar to variations being pursued by prospective and other microbes, some of which are those found in gasoline or diesel fuel biofuel producers. These variations naturally occurring and others that have refined from petroleum and could usually seek to simplify the biochemical been genetically modified. The ideal potentially be used in conventional fuel production process by combining biological organism converts both five vehicles without blending. While the several steps into a single step or using and six carbon sugars to fuel with a high prospect of producing hydrocarbon other means to reduce the capital or efficiency, is able to tolerate a range of fuels from cellulosic feedstock is operating costs of the process. conditions, and is adaptable to process promising, the current yields of fuel Simultaneous Saccharification and sugar streams of varying compositions produced by these organisms are Fermentation (SSF), Simultaneous that may result from variations in significantly lower than those that are Saccharification and Co-Fermentation feedstock. Many cellulosic biofuel producing ethanol and other alcohols. (SSCF), Consolidated Bio-Processing producers have their own proprietary Improvement in the yields of these (CBP), and Single Step Fuel Production organism or organisms optimized to organisms will have to be realized in are all production methods being produce the desired fuel from their order for cellulosic hydrocarbon fuels developed by various biofuel unique combination of feedstock, produced via a biochemical process to production companies to combine two pretreatment and hydrolysis processes, compete with cellulosic ethanol, and or more of the steps outlined above. and fuel conversion conditions. Other ultimately petroleum based fuels. These process variations are discussed cellulosic fuel producers license these e. Fuel Separation in more detail in a technical memo that organisms from biotechnology can be found in the docket.22 These companies who specialize in their In the fuel separation stage the fuel modifications are usually enabled by a discovery and production. produced is separated from the water, proprietary technology or biological The many different biological lignin, any un-reacted hemicellulose organism that makes these changes organisms being considered for and cellulose, and any other compounds possible. cellulosic biofuel production are remaining after the fuel production capable of producing many different stage. The complexity of this stage is g. Current Status of Biochemical types of fuels. Many cellulosic biofuel highly dependent on the type of fuel Conversion Technology producers are working with organisms produced. For processes producing The biochemical cellulosic fuel that produce ethanol. In many ways this hydrocarbon fuels this stage can be as production industry is currently is the most simple fuel to produce from simple as a settling tank, where the transitioning from an industry lignocellulosic biomass as the hydrocarbons are allowed to float to the consisting mostly of small scale research production of ethanol from simple top and removed. Recovering the and optimization focused facilities to sugars is a well understood process. ethanol is a much more difficult task. To one capable of producing fuel at a Others intend to produce butanol or recover the ethanol a distillation commercial scale. Companies such as other alcohols that have higher energy process, nearly identical to that used in Iogen, DuPont Danisco Cellulosic content. Butanol may be able to be the grain ethanol industry, is used. The Ethanol, and KL Energy are just blended into gasoline in greater ethanol solution is first separated from beginning to market the fuel they are proportion to ethanol and therefore has the solids before being sent to a producing at their first small scale a potentially greater market as well as distillation column called a beer commercial fuel production facilities. value due to its higher energy content. column. The overheads of the beer By 2011 we expect several other Yields for butanol, however, are column are fed to a second distillation cellulosic fuel production facilities currently significantly lower per ton of column, called a rectifier for further using biochemical processes to come feedstock than ethanol. Some of the fuel separation. The rectifier produces a online, including the first commercial producers who plan to produce alcohols stream with an ethanol of approximately scale facilities of AE Advanced Fuels, are considering purchasing and 96%. A molecular sieve unit is then Agresti Biofuels, Bell Bio-Energy, and modifying already existing grain ethanol used to dehydrate this stream to Fiberight. Many other facilities, plants. This would potentially have produce fuel grade ethanol with purity including some large scale facilities significant capital cost savings as many greater than 99.5%. Gasoline is added to capable of producing tens of millions of of the units used in a grain ethanol the fuel ethanol as a denaturant before gallons of fuel are planned to come process are very similar to those the fuel is stored. The distillation of online starting in 2012 and in the ethanol is a very energy intensive required by the biochemical fuel following years. production process and could be used process and new technologies, such as There are many factors that are likely with minimal modification. membrane separation, are being to continue to drive the expansion of the Other cellulosic biofuel producers developed that could potentially reduce cellulosic biofuel industry. The high intend to produce hydrocarbon fuels the energy intensity, and thus the cost, price of petroleum fuels and the very similar to gasoline, diesel, and jet of the ethanol dehydration process. mandates put into place by the RFS2 fuel. These fuels command a higher After the fuel has been recovered the price than alcohols, have a greater remaining lignin and solids are dried 22 Wyborny, Lester. ‘‘In-Depth Assessment of energy density, and are potentially drop and either burned on site to provide Advanced Biofuels Technologies.’’ Memo to the in fuels that could be used in any process heat and electricity or sold as a docket, May 2010.

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program have created a large demand h. Major Hurdles to Commercialization the presence of catalysts.23 For for cellulosic biofuels. The biochemical generating the syngas, thermochemical production process also has several Despite the many promising qualities processes partially oxidize biomass in advantages over other methods of of the biochemical fuel production the presence of a gasifying agent, producing fuel from cellulosic process several significant hurdles usually air, oxygen, and/or steam. It is feedstocks including relatively low remain. Improvements must be made to important to note that these processing the pretreatment processes of the capital costs, highly selective fuel steps are also applicable to other cellulosic materials to maximize the production, flexibility in the type of fuel feedstocks (e.g., coal or natural gas); the conversion of cellulose and produced, and the promise of future only difference is that a renewable hemicellulose to simple sugars and to production cost reductions. feedstock is used (i.e., biomass) to minimize the production of other produce cellulosic biofuel. The While the poor worldwide economy undesired compounds, especially those cellulosic biofuel produced can be and tight credit markets has had a that may inhibit the fuel production mixed alcohols, but optimizing the negative impact on the biofuel industry process. The ability of the biological process to produce ethanol, or it could as a whole the cellulosic biofuel fuel production organisms to process a be diesel fuel and naphtha. A producers utilizing biochemical wide range of both five and six carbon thermochemical unit can also processes have not been as hard hit as sugars must also continue to be complement a biochemical processing many others in the industry. This is improved. Both these improvements plant to enhance the economics of an partially due to the relatively low will increase the fuel yield per ton of integrated biorefinery by converting capital costs of biochemical production cellulosic feedstock, reducing the lignin-rich, non-fermentable material plants as a result of the relative operating costs of the process. The cost left over from high-starch or cellulosic simplicity and mild operating of enzymes must continue to decrease to feedstocks conversion.24 Compared to conditions of these plants. Several allow the fuel produced by biochemical corn ethanol or biochemical cellulosic companies have been able to purchase processes to be cost competitive with ethanol plants, the use of biomass distressed grain ethanol plants and are petroleum and other cellulosic biofuels. gasification may allow for greater in the process of modifying them to Another significant hurdle that must flexibility to utilize different biomass produce cellulosic ethanol, further be overcome is the profitable utilization feedstocks at a specific plant. Mixed reducing the capital costs of their initial of the lignin portion of the cellulosic biomass feedstocks may be used, based facilities. Once biochemical fuel feedstock. Unlike some of the other on availability of long-term suppliers, production facilities have been cellulosic biofuel production processes, seasonal availability, harvest cycle, and constructed another advantage they the biochemical process does not costs. have over other fuel production convert the lignin to fuel. Cellulosic The general steps of the gasification processes is that their high selectivity in feedstock can contain up to 40% lignin, thermochemical process include: the fuels they produce. Unlike chemical depending on the type of feedstock feedstock handling, gasification, gas catalysts, which often produce a range used, so the effective utilization of this cleanup and conditioning, fuel of products and byproducts, biological lignin is an important piece of the synthesis, and separation. Refer to organisms often produce a single type of profitability of the biochemical process. Figure IV.C.2–1 for a schematic of the fuel, which leads to very high fuel One option for the use of the lignin is thermochemical cellulosic ethanol production rates per unit sugar. Finally, to burn it to provide process heat and production process through gasification. there is a large potential to further electricity, as well as excess electricity For greater detail on the decrease the production costs of to the grid. While this would provide thermochemical mixed-alcohols route cellulosic biofuels using the good value for the lignin, it would refer to NREL technical biochemical processes. Unlike other require fairly expensive boilers and documentation.25 production methods such as gasification turbines that increases the capital cost 23 which are relatively mature of the facility. If the lignin cannot be U.S. DOE. Technologies: Processing and used as part of the fuel production Conversion. Accessed at: http:// technologies, biochemical production of www1.eere.energy.gov/biomass/ fuels is a young technology. One of the process it may be able to be marketed processing_conversion.html on October 28, 2008. major costs of the biochemical fuel as a solid fuel with high energy density 24 EERE, DOE, Thermochemical Conversion, & production processes currently are the and low carbon intensity. Biochemical Conversion, Biomass Program Thermochemical R&D. http:// enzymes. Great strides have been made 2. Thermochemical www1.eere.energy.gov/biomass/ recently in reducing the cost of these thermochemical_conversion.html http:// Thermochemical conversion involves www1.eere.energy.gov/biomass/ enzymes, and as the price of enzymes _ continues to fall so will the operating biomass being broken down into syngas biochemical conversion.html. 25 Aden, Andy, Mixed Alcohols from Woody costs of biochemical fuel production using heat and upgraded to fuels using Biomass—2010, 2015, 2022, National Renewable processes. a combination of heat and pressure in Energy Laboratory (NREL), September 23, 2009.

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Figure IV.C.2–2 is a block diagram of which produces diesel fuel and naphtha a biomass to liquids (BTL) process through a thermochemical process.

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The first step in a thermochemical the choice of producing diesel fuel or Soperton, Georgia and is partially plant is feedstock size reduction. The alcohols from syngas by optimizing the funded from proceeds of a DOE grant. particle size requirement for a type of catalyst used and the H2/CO The plant will use wood, grasses, and thermochemical process is around 10- ratio. Diesel fuel has historically been corn stover as feedstocks. In its initial mm to 100-mm in diameter.26 Once the the primary focus of such processes by phase, the Range plant is expected to feed is ground to the proper size, flue using a Fischer Tropsch reactor, as it produce 4 million gallons per year of gases from the char combustor and tar produces a high quality distillate methanol. After the company is reformer catalyst regenerator dry the product. However, with a $1.01 per confident in its operations, Range will feed from the as received moisture level gallon cellulosic biofuel tax deduction begin efforts to expand the plant and of around 30% to 50% moisture to the which favors the less energy dense add additional reaction capacity to level required by the gasifier. ethanol, it may be economically convert the methanol to ethanol. The dried, ground feedstock is fed to advantageous for fuel producers to Enerkem is pursuing cellulosic a gasification reactor for producing convert syngas to ethanol instead of to ethanol production via the syngas. There are two general classes of diesel fuel. thermochemical route. The Canadian- gasifiers, partial oxidation (POx) and A carefully integrated conventional based company was recently announced indirect gasifiers. Partial oxidation steam cycle produces process heat and as a recipient of a $50 million grant gasifiers (directly-heated gasifiers) use electricity (excess electricity is from DOE to build a 10 MGY woody the exothermic reaction between oxygen exported). Pre-heaters, steam generators, biomass-to-ethanol plant in Pontotoc, and organics to provide the heat and super-heaters generate steam that MS. The U.S. plant is not scheduled to necessary to devolatilize biomass and to drives turbines on compressors and come online until 2012, but Enerkem is convert residual carbon-rich chars. electrical generators. The heat balance currently building a 1.3 MGY Indirect gasifiers use steam to around a thermochemical unit or demonstration plant in Westbury, accomplish gasification through heat thermochemical combined unit must be Quebec. According to the company, transfer from a hot solid or through a carefully designed and tuned in order to plant construction in Westbury started heat transfer surface. Either the avoid unnecessary heat losses.27 These in October 2007 and the facility is byproduct char and/or a portion of the facilities greatly increase the thermal currently scheduled to come online product gas can be combusted with air efficiency of these plants, but they add around the middle of 2010. While it’s (external to the gasifier itself) to provide to the very high capital costs of these unclear at this time whether the the energy required for gasification. The technologies. cellulosic ethanol produced will be raw syngas produced from either type of exported to the United States, Enerkem gasifier has a low to medium energy a. Ethanol Based on a Thermochemical has expressed interest in selling its fuel content which consists mainly of CO, Platform commercially. If Enerkem does export H2, CO2, H2O, N2, and hydrocarbons. Conceptual designs and techno- some of its cellulosic biofuel to the U.S., Once the biomass is gasified and economic models have been developed it could help to enable refiners meet the converted to syngas, the syngas must be for ethanol production via mixed 2011 cellulosic biofuel standard. cleaned and conditioned, as minor alcohol synthesis using catalytic components of tars, sulfur, nitrogen b. Diesel and Naphtha Production Based processes. The proposed mixed alcohol on a Thermochemical Platform oxides, alkali metals, and particulates process produces a mixture of ethanol have the potential to negatively affect along with higher normal alcohols (e.g., The cleaned and water-shifted syngas the syngas conversion steps. Therefore, n-propanol, n-butanol, and n-pentanol). is sent to the Fischer Tropsch (FT) unwanted impurities are removed in a The by-product higher normal alcohols reactor where the carbon monoxide and gas cleanup step and the gas have value as commodity chemicals and hydrogen are reacted over a FT catalyst. composition is further modified during fuel additives. Current FT catalysts include iron-based gas conditioning. Because this step is a The liquid rundown from the low- catalysts, and cobalt-based catalysts. necessary part of the thermochemical pressure separator is dehydrated in The FT reactor creates a syncrude, process, thermochemical plants are vapor-phase molecular sieves, which is a variety of hydrocarbons that good candidates for processing producing the dehydrated mixed boil over a wide distillation range (a mix municipal solid waste (MSW) which alcohol feed into a methanol/ethanol of heavy and light hydrocarbons) which may contain a significant amount of overhead stream and a mixed, higher are separated into various components toxic material. Gas conditioning steps molecular weight alcohol bottom based on their vapor pressure, mainly include sulfur polishing to remove trace stream. The overhead stream is further liquid petroleum gas (LPG), naphtha, levels of H2S and water-gas shift to separated into a methanol stream and an distillate and wax fractions. The heavier adjust the final H2/CO ratio for ethanol stream. compounds are hydrocracked to optimized fuel synthesis. Two companies which are pursuing maximize the production of diesel fuel. After cleanup and conditioning, the ethanol based on a thermochemical Conversely, the naphtha material is very ‘‘clean’’ syngas is comprised of route are Range Fuels and Enerkem. low in octane thus, it would either have essentially CO and H2. The syngas is Range has operated a pilot plant for over to be upgraded, or blended down with then converted into a liquid fuel by a 7 years using over 20 different nonfood high octane blendstocks (i.e., ethanol), catalytic process. The fuel producer has feedstocks. Range broke ground building or be upgraded to a higher octane its first commercial plant late in late blendstock to have much value for use 26 Lin Wei, Graduate Research Assistant, Lester O. 2008 and is expected to be operational in gasoline. Pordesimo, Assistant Professor Willam D. Choren is an European company Batchelor, Professor, Department of Agricultural in 2010. This plant will be located in and Biological Engineering, Mississippi State which is pursuing a thermochemical University, MS 39762, USA, Ethanol Production 27 S. Phillips, A. Aden, J. Jechura, and D. Dayton, technology for producing diesel fuel and from Wood: Comparison of Hydrolysis National Renewable Energy Laboratory, Golden, naphtha. The principal aspect of Fermentation and Gasification Biosynthesis, Paper Colorado 80401–3393, T. Eggeman, Neoterics Choren’s process is their patented three Number: 076036, Written for presentation at the International, Inc., Thermochemical Ethanol via 2007 ASABE Annual International Meeting. Indirect Gasification and Mixed Alcohol Synthesis stage gasification reactor. The three- Minneapolis Convention Center, Minneapolis, MN, of Lignocellulosic Biomass, Technical Report, stage gasification reactor includes low 17-20 June 2007. NREL/TP–510–41168, April 2007. temperature gasification, high

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temperature gasification and stage of a typical thermochemical usually using a combination of endothermic entrained bed gasification. process, as well as the fermentation distillation and molecular sieves. The Choren designed its gasification reactor stage of a typical biochemical process separated water can then be recycled with three stages to more fully convert and therefore cannot be placed easily back into the fermentation stage of the the feedstock to syngas. Choren will be into either category. For more specific process. Typical yields of ethanol are building a commercial Plant in Freiberg/ information regarding either predicted in the 100–120 gallon per ton Saxony Germany that is expected to be biochemical processes or range. operational in 2011 or 2012. Initially, thermochemical, please see Sections Since gasification converts all the plant will use biomass from nearby IV.C.1 and IV.C.2 respectively. carbonaceous feedstock material to a forests, the wood-processing industry Currently, there are several strategies for uniform syngas before fermentation, and straw from farmland. Although any the production of ethanol through there is a higher flexibility of feedstock fuel produced in 2011 by its Freiberg/ hybrid processes; these strategies are choices than if these materials were to Saxony plant and marketed differentiated by the order in which the be fermented directly; including commercially would most likely be used thermochemical and biochemical steps agricultural residues, switchgrass, farm- in Europe, it is possible that some of take place within the process, as well as grown trees, sorted MSW, or any that fuel could be exported to the U.S. how the intermediate products from combination of such. In addition, Choren is also planning to build a each step are used. processing incoming feedstock with commercial thermochemical/biomass- While we do not expect significant gasification does not require the to-liquids (BTL) plant in the U.S. after commercial production from hybrid addition of enzymes or acid hydrolysis their Freiberg/Saxony plant is processes in 2011, there are several necessary in a biochemical process to operational in Germany. companies pursing this approach for the aid in the breakdown of cellulosic Baard Energy is a U.S. company future. Examples of the first process materials. Fermenting syngas also which plans on utilizing a strategy, described in the paragraph captures all available carbon contained thermochemical technology for below, include both INEOS Bio and in the feedstock, including lignin that producing diesel fuel and naphtha. Coskata. INEOS Bio (along with partner would not be processed in a typical Baard, however, plans on primarily New Planet Energy) has recently been biochemical fermentation. However, combusting coal and cofiring biomass selected for a $50MM DOE grant for the more energy is lost as waste heat as well with the coal. Cofiring the biomass with construction of an 8 MGPY plant in as secondary carbon dioxide production the coal will make their first plant more River County, Florida; predicted to in the gasification process than would like the coal-to-liquids plants which are finish construction in late 2011. Coskata be lost for biochemical feedstock operating today, which may help to is currently running a 40,000 gallon per preparation. Using a fermenter in a convince investors that this technology year pilot plant that became operational hybrid process replaces the catalyst is already tested. Baard’s coal and in 2009 in Madison, Pennsylvania. needed in a typical thermochemical biomass-to-liquids plant is not expected Coskata is targeting to design and build process. These microorganisms allow to be operational until at least 2012. a 50 MGPY commercial plant that it for a higher variation of the incoming Probably the largest expects to be operational in 2012. A syngas stream properties, avoid the commercialization hurdle for the company currently pursing the second necessity of a water-shift reaction companies pursing the thermochemical process strategy, described in the preceding traditional catalytic route is the very high capital costs following third paragraph, is Zeachem conversion, and are able to operate at associated with these technologies. Inc. Zeachem is currently constructing a lower temperatures and pressures than Because of the economic hardships 250 KGPY demonstration plant in those required for a catalytic conversion associated with recent global recession, Boardman, Oregon. They have received to ethanol. Microorganisms, unlike a banks are less willing to make loans to a $25MM DOE grant and expect to have catalyst, are also self-sustaining and do fund new technologies which are likely a full commercial production facility not require periodic replacement. They to be considered riskier investments. operational in 2013. are, however, susceptible to bacterial The capital costs are very high because One strategy involves the gasification and viral infections which requires there are two significant reactors of all feedstock material to syngas before periodic cleaning of the fermentation required for each plant—the gasification being processed into ethanol using a reactors. reactor and the syngas to fuel reactor. biochemical fermenter. Further Another hybrid production strategy Additionally, the syngas must be information regarding gasification can involves gasification of the typically cleaned to protect the catalysts used in also be found in Section IV.C.2. After unfermentable feedstock fraction the downstream syngas to fuel reactor gasification, the syngas stream is cooled (lignin) concurrently with a typical which requires additional capital costs. and bubbled into a fermenter containing fermentation step for the cellulose and Because the syngas would be cleaned modified microorganisms, usually hemicellulose fraction. These steps are anyways, this technology is a very good bacteria or yeast. This fermenter subsequently combined in a candidate for processing MSW which replaces the typical catalysts found after hydrogenation reaction of the produced may contain toxic compounds. When gasification in a traditional syngas with the product of the considering the cost savings for not thermochemical process. Further fermented stream. Feedstock first having to pay the tipping fees at information regarding fermentation can undergoes acid hydrolysis to break municipal dumping grounds, MSW be found in Section IV.C.1. Unlike down contained cellulose and feedstocks may avoid almost all the traditional fermentation (which break hemicellulose. Before fermentation, the purchase costs for MSW feedstocks down C5 and C6 sugars), these unfermentable portion of feedstock which would significantly help offset microorganisms are engineered to (lignin, ash and other residue) is the high capital costs. convert the carbon monoxide and fractioned and sent to a gasifier. hydrogen contained in the syngas Concurrently, the remaining fraction of 3. Hybrid Thermochemical/Biochemical stream directly into ethanol. After hydrolyzed feedstock is fermented using Processes fermentation, the effluent water/ethanol an acetogen microorganism. These Hybrid technologies include process stream from the fermenter is separated acetogens occur naturally, and therefore elements involving both the gasification similarly to a biochemical process; do not have to be modified for this

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process. These acetogen convert both C6 however, a significant amount of product produced by the Dynamotive and C5 portions of the hydrolized gasoline would likely be produced as process is called BioOil. The BioOil feedstock to acetic acid. This reaction well. There are two main reaction contains up to 25% water, though the creates no carbon dioxide, unlike pathways currently being explored: A water is intimately mixed and does not traditional fermentation using yeast, two step pyrolysis pathway, and a one easily separate into another phase with preserving the maximum amount of step pyrolysis pathway. time. Since the BioOil contains carbon for the finished fuel. The acetic The simplest technology used for the significant amounts of water, it is not acid stream then undergoes two-step pyrolysis approach is called directly useable as fuel in conventional esterification to create ethyl acetate. fast pyrolysis. The fast pyrolysis vehicles and would have to be Meanwhile, the syngas stream from the technology uses sand in a fluidized bed converted via another catalytic gasification of lignin and other residue to transform bio-fuels into a product conversion processing step. The is separated into its carbon monoxide named bio-oil. This is purely a thermal additional catalytic step envisioned by and hydrogen components. The carbon process, where the sand’s (or other Dynamotive to upgrade the BioOil into monoxide stream can be further solid) role is to transport heat to the a transportation fuel would combust the combusted to provide process heat or biomass. Fast pyrolysis technology has material into a synthesis gas which energy. The hydrogen stream is two problems to be solved. First, fast would then be converted into diesel fuel combined with the ethyl acetate in a pyrolysis oil is unstable, acidic, viscous or bio-methanol via a catalytic reaction hydrolysis reaction to form ethanol. and may separate itself into two phases (the BTL process). The diesel fuel Acetic acid and ethyl acetate also form so it must be immediately upgraded or produced is expected to be compatible the precursors to many other chemical it will begin to degrade and with existing petroleum diesel fuels. compounds and therefore may also be repolymerize. The second issue is that The poor quality BioOil, though, could sold in addition to ethanol. Typical pyrolysis bio-oil must be upgraded be used in the No. 2 industrial heating yields for this technology are predicted before it can be used as a transportation oil market at industrial facilities. in the 130–150 gallon per ton range. fuel. However, because of its high acidity Another approach to Fast Pyrolysis level, users would need to change 4. Pyrolysis and Depolymerization being pursued by several companies equipment metallurgy to stainless steel Pyrolysis and depolymerization is a would be to substitute a catalyst in for pipes, pumps, tanks, nozzles etc. group of technologies which are capable place of sand and the catalyst would be Dynamotive has two small of creating biofuels from cellulose by able to stabilize the resulting bio-oil in demonstration plants. One either thermally or catalytically addition to helping depolymerize the demonstration plant is located in breaking them down into molecules biomass to liquids. Although the Guelph, Ontario, Canada and its which fall within the boiling range of resulting bio-oil is stable, it still has to capacity is 66,000 dry tons of biomass transportation fuels. Pyrolysis be upgraded into a transportation fuel, a year with an energy output equivalent technologies are usually thought of since it would still have a high level of to 130,000 barrels of oil. The other of its being primarily a thermal technology, oxygenated compounds. demonstration plants is located in West The National Renewable Energy however, newer pyrolysis technologies Lorne Ontario, Canada. Dynamotive Laboratory (NREL) is working on a ‘‘hot are being developed which are continues to work on a technology for filtration’’ technology that apparently is attempting to integrate some catalysts converting its BioOil to transportation able to stabilize bio-oil created using the into the technology. These are all fuels, although they have not fast pyrolysis process for a very long unique processes, typically with single announced plans for building such a period of time (years). This would allow companies developing the technologies, facility due to funding limits. While the bio-oil to be stored and transported so they are discussed separately. Dynamotive is expected to continue to to an upgrading facility without sell its fuel into the chemicals market, a. Pyrolysis Diesel Fuel and Gasoline significant degradation. it could find a fuel oil user in the U.S. It is possible to use a sophisticated Pyrolysis oils, or bio-oils, are to use its fuel under the RFS2 program catalyst (instead of sand) in a single step produced by decomposing cellulosic that refiners could use to comply with pyrolysis reaction to create pyrolysis biomass at lower temperatures than the the 2011 cellulosic biofuel standard. oils that exhibit much improved bio-oil gasification process, thus producing a Envergent is a company formed properties. The catalysts would not only liquid bio oil instead of a synthesis through a joint venture between be able to help depolymerize cellulosic gas.28 The reaction can occur either with Honeywell’s UOP and the Ensyn feedstocks, but they produce a bio-oil or without the use of catalysts, but it Corporation. Although Ensyn has been which could possibly be used directly using fast pyrolysis for more than a occurs without any additional oxygen as transportation fuel. Thus, a second decade to produce specialty chemicals, being present. The resulting oil which is upgrading step may not be necessary. UOP is relying on its decades of produced must have particulates and The difficulty encountered by this experience developing refining ash removed in filtration to create a technology is that catalysts which have technologies to convert the pyrolysis homogenous ‘‘dirty’’ crude oil type of been used in the one step process are oils into transportation fuels. Envergent product. This dirty crude oil must be relatively expensive and they degrade is also working with Federal further upgraded to hydrocarbon fuels quickly due to the metals which are laboratories to further their technology. via hydrotreating and hydrocracking present in the biomass. Development Based on their current technology and processing, which reduces its total work on the two-step and one-step depending on the feedstock processed, oxygen content and cracks the heaviest pyrolysis processes is ongoing. about 70% of the feedstock is converted of the hydrocarbon compounds. One of Dynamotive Energy Systems into liquid products. The gasoline range the finished fuels produced by the Corporation is a Canadian company products produced are high in octane, pyrolysis process is diesel fuel, which has developed a pyrolysis while the diesel fuel products are low technology that uses medium in cetane. Envergen estimates that if it 28 DOE EERE Biomass Program. ‘‘Thermochemical Conversion Processes: Pyrolysis’’ http:// temperatures and oxygen free reactions was able to procure cellulosic www1.eere.energy.gov/biomass/ to convert dry waste biomass and energy feedstocks at 70 per ton, that their thermochemical_processes.html, November 6, 2008. crops into different products. The liquid technology would be competitive with

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#2 fuel oil produced from crude oil some solids which are present and are have arisen upon scaleup from their priced at about $40 per barrel. distilled into typical fuel streams pilot plant. We expect that Cello will be Envergent is licensing this technology as including naphtha, diesel fuel, kerosene able to produce some volume of well as working with a U.S. oil company and fuel oil. According to the literature cellulosic biofuel in 2011. to test out this technology in a writing about this technology, the 5. Catalytic Reforming of Sugars to commercial setting here in the U.S. process reportedly produces 120 gallons Gasoline Petrobras is a Brazilian oil company per ton of feedstock inputted into the also working to develop a pyrolysis process. A light hydrocarbon gas, which Virent Biorefining is pursuing a technology. Because of Petrobas’ work is mostly methane, is also produced, but process called ‘‘Bioforming’’ which in this area (and other areas on this gas is expected to be burned in a functions similarly as the gasoline biofuels), a Memorandum of turbine to generate electricity and the reforming process used in the refining Understanding was signed by United waste heat is used for heating the industry. Hence, this is a very different States’ Secretary of State and Brazil’s process. Apparently, some carbon technology to any of those other External Relations Minister on March 9, dioxide is also formed and is released cellulosic biofuel technologies 2007 to advance the cooperation on from the process. discussed above. While refinery-based biofuels. A second Memorandum of Greenpower completed construction catalytic reforming technologies raise Understanding was signed by on a demonstration plant located in natural gasoline’s octane value and PETROBRAS and NREL on September Fife, Washington about March of 2008. produces aromatic compounds, 2008 aiming at collaborating to Greenpower is working on obtaining Bioforming reforms biomass-derived maximize the benefit of their respective additional funding and to obtain an air sugars into hydrocarbons for blending institutional interests in second permit through the State of Washington into gasoline and diesel fuel. The generation biofuels. Petrobras is Environmental Office. While we don’t process operates at moderate negotiating a Cooperation Agreement believe that Greenpower will have its temperatures and pressures. In March of with NREL to develop a two step plant operational in 2011 due to 2010, Virent announced that they had pyrolysis route to produce biofuels from financial and other issues the company begun operating a larger pilot plant agricultural wastes such as sugar cane faces, those issues could be resolved to capable of about 30 gallons per day. bagasse, wood chips or corn stover. allow this company to produce fuel that Commercialization of the Virent process Petrobras is optimistic that a catalytic could help refiners comply with the will happen sometime after 2011. pyrolysis technology can be developed cellulosic biofuel volume standard for For this technology to become a that will produce a stable bio-oil 2011. cellulosic biofuel technology, it will be (pyrolysis oil). Petrobras is hopeful that The Cello-Energy process is also a necessary to link this reforming a one-step pyrolysis technology can be catalytic depolymerization technology. technology with a technology which developed to convert biomass directly to At moderate pressure and temperature, breaks cellulose down into starch or transportation fuels, although in the end the Cello-Energy process catalytically sugars. In parallel with its Bioreforming Petrobras believes that the two step removes the oxygen and minerals from work, Virent is working on a technology process may be more economically the hydrocarbons that comprise finely to break down cellulose into sugars attractive. ground cellulose. This results in a upstream of its technology which mixture of short chain (3, 6 and 9 reforms sugars to gasoline. b. Catalytic Depolymerization carbon) hydrocarbon compounds. These V. Proposed Changes to RFS2 Two companies that are pursuing short chain hydrocarbon compounds are Regulations catalytic depolymerization are Green polymerized to form compounds that Power Inc. and Cello Energy. boil in the diesel boiling range, though Following publication of the final The Green Power process catalytically the process can also be adjusted to RFS2 program regulations ,29 EPA depolymerizes cellulosic feedstocks at produce gasoline or jet fuel. The identified two program areas that could moderate temperatures into liquid resulting diesel fuel meets the ASTM benefit from the addition of new hydrocarbon fuels. The proposed standards, is in the range of 50 cetane regulatory provisions. The first would feedstock is municipal solid waste to 55 cetane and typically contains 3 provide for the generation of RINs for (MSW) or other waste material such as ppm of sulfur. fuel produced between July 1, 2010 and animal waste, plastics, agriculture The Cello process is reported to be on December 31, 2010 representing certain residue, woody biomass and sewage the order of 82% efficient at converting fuel pathways that are not currently in waste. The feedstock is first ground to the feedstock energy content into the Table 1 to § 80.1426, but which could a size finer than 5 mm. The feedstock energy content of the product, which is possibly be added later this year if they is placed along with a catalyst, some very high compared to most of today’s are determined to meet the applicable lime, which serves as a neutralizing biochemical and thermochemical GHG thresholds. Under this proposal agent, and some fuel which provides a processes which are on the order of 50% RINs could be generated only if the liquid medium, into a reactor and efficient, or less. Because of the pathways are indeed approved, and heated to around 350 degrees Celsius. simplicity of the process, the capital only for quantities reflecting fuel As described, this technology may fit costs are very low. A 50 million gallon produced between the effective date of the description for catalyzed pyrolysis per year plant is claimed to only incur the RFS2 regulations and the effective reactions described above, but because a total cost of $45 million. Because of date of a new pathway added to Table we are not certain of the reaction its high efficiency in converting 1 to § 80.1426. The second program kinetics, we have categorized this as a feedstocks into liquid fuel, the addition would establish procedures for separate catalytic depolymerization production and operating costs are petitions requesting EPA authorization technology. In the reactor, the feedstock estimated to be very low. of an aggregate compliance approach to is catalytically converted to liquid fuels In December 2008, Cello completed renewable biomass verification for which primarily fall within the gasoline construction on a 20 million gallon per feedstocks grown in foreign countries, and diesel fuel boiling ranges, although year commercial demonstration plant. akin to that applicable to crops and crop these fuels may need further upgrading. However, at the present they are still The liquid fuels are separated from working to resolve process issues that 29 75 FR 14670, March 26, 2010.

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residue grown within the U.S. We are fuel produced between July 1, 2010 and transferred with renewable fuel they proposing to make amendments to the any EPA approval of a new fuel produced must be accounted for. We are RFS regulations in Subpart M to pathway could only be generated after proposing a process whereby these implement both of these provisions. the renewable fuel in question had been grandfathered producers would be produced and sold, after the time when required to acquire and retire RINs from A. Delayed RIN Generation for New EPA announces the results of the the open market with a D code of 6 prior Pathways lifecycle analyses and specifies the to the generation of Delayed RINs. The As described in the RFS2 final rule, applicable D code in Table 1 to number of RINs retired in this fashion we did not have sufficient time to § 80.1426. Thus we are proposing a new must be no greater than the number they complete the necessary lifecycle GHG regulatory provision for the generation generated between July 1, 2010 and the impact assessment for certain fuel of ‘‘Delayed RINs’’ that would allow effective date of the new applicable pathways. We indicated that we would RINs with newly specified D codes to be pathway. Producers who are not model and evaluate several additional generated for eligible fuel produced grandfathered under § 80.1403 cannot pathways after the final rule (see between July 1, 2010 and the date any generate RINs starting on July 1, 2010, Section V.C of the RFS2 final rule, 75 new D code is approved for one of the and so would not be required to acquire FR 14796). EPA anticipates modeling four fuel pathways listed above. This and retire any RINs prior to the and publishing the lifecycle GHG Delayed RINs provision would only be generation of Delayed RINs. analyses for the following four pathways applicable for any of the four pathways The generation of Delayed RINs later this year: described above that are determined to would also differ for grandfathered • Grain sorghum ethanol. meet the applicable GHG thresholds. We producers and non-grandfathered • Pulpwood biofuel. are also proposing that this provision producers. Grandfathered producers • Palm oil biodiesel. would base the number of Delayed RINs • would apply only for renewable fuel Canola oil biodiesel. produced in 2010, since the lifecycle they generate on the number of RINs Depending on how these lifecycle GHG GHG assessments for the four pathways with a D code of 6 that they retired as results compare with the required GHG listed above is expected to be completed described above. In contrast, non- thresholds for cellulosic biofuel, in 2010. Our proposed regulatory grandfathered producers would base the biomass-based diesel, advanced biofuel, provision for Delayed RIN generation number of Delayed RINs they generate and conventional renewable fuel, we would be inserted into § 80.1426 as new on the volume of renewable fuel they may add one or more of these pathways paragraph (g). As for any RIN produced and sold between July 1, 2010 to Table 1 to § 80.1426. Once a new generation, producers using this new and the effective date of the new pathway is approved, producers using regulatory provision would need to be pathway. Since all Delayed RINs will be that pathway could generate RINs with registered under RFS2 before they could generated after the renewable fuel in the specified D code. generate Delayed RINs, and would need question had been produced and sold, We consider the four new fuel to comply with the recordkeeping and they would be assigned a K code of 2 pathways currently being analyzed to be reporting requirements of the and thus could be sold by the producer an extension of the RFS2 final rule. Had regulations. separately from renewable fuel. we been able to complete these analyses We do not believe that this proposed Finally, we believe that there should for the RFS2 final rule and verified that provision for Delayed RINs should be be a deadline for the generation of the GHG thresholds had been met, D extended to any other pathways. The Delayed RINs to ensure that they are codes to represent these pathways four pathways listed above are the only entering the market as close as possible would have been included in Table 1 to pathways currently under evaluation to the date of production of the § 80.1426 promulgated on March 26, that would have been included in the renewable fuel that they represent. We 2010, and renewable fuel producers RFS2 final rule if we had completed the are proposing that all Delayed RINs could have begun using those pathways modeling in time. Moreover, we have must be generated within 30 days of the to generate RINs beginning on July 1, provided a petition process in § 80.1416 effective date of a new pathway added 2010. Indeed, we are aware of a number for other fuel pathways for which to Table 1 to § 80.1426 between July 1, of producers who intend to produce lifecycle GHG assessments have not yet 2010 and December 31, 2010. We biofuel using one of the four pathways been made. believe that 30 days would provide listed above despite the fact that a In developing this proposed provision sufficient time for producers who are determination regarding their lifecycle for Delayed RIN Generation, we have grandfathered to first acquire and retire GHG impact has not yet been made. accounted for renewable fuel producers RINs from the open market, and would Based on the fact that we may have who are eligible for an exemption from be sufficient to allow any producer to included the four pathways listed above the 20% GHG reduction requirement for generate Delayed RINs according to the in the RFS2 final rule if the lifecycle their fuel under § 80.1403 procedures in the regulations. However, modeling had been completed in time, (‘‘grandfathered’’ producers) and those we request comment on a longer period we believe that it would be appropriate that are not. Grandfathered producers within which Delayed RINs must be to allow renewable fuel producers using can generate RINs for their renewable generated. any of these four pathways that are fuel starting on July 1, 2010, but must We request comment on our proposed ultimately approved for inclusion in designate the D code as 6 for such fuel, provision for Delayed RINs. Table 1 to § 80.1426 to generate RINs for identifying it as conventional renewable all fuel they produce and sell on and fuel. They must also transfer those RINs B. Criteria and Process for Adoption of after July 1, 2010. However, while EPA with renewable fuel they sell. If one of Aggregate Approach to Renewable is expeditiously working to complete its the four fuel pathways described above Biomass for Foreign Countries GHG assessments for these four fuel is approved between July 1, 2010 and In the preamble to the final RFS2 pathways in 2010, the determination of December 31, 2010 for use of a D code regulations, EPA indicated that, while whether any of the four pathways will other than 6, and the producer wishes we did not have sufficient data at the meet the 20%, 50%, or 60% GHG to apply this new D code to fuel they time to make a finding that the aggregate thresholds may not occur until after July have already produced and transferred, compliance approach adopted for 1, 2010. Therefore, RINs representing the RINs they already generated and domestically-grown crops and crop

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residues would be appropriate for such as ‘‘cropland,’’ ‘‘pastureland,’’ country, when considering the foreign-grown feedstocks, we would ‘‘planted crop,’’ and ‘‘crop residue’’ information and data submitted by the consider applying the aggregate included in the final RFS2 regulations. petitioner, EPA will evaluate such compliance approach for renewable • Whether information from years information on a case-by-case basis, but biomass on a country by country basis preceding and following 2007 shows suggests that petitioners obtain data if adequate land use data becomes that the identified aggregate amount of from sources that are at least as credible, available. land in the specific geographical area, reliable, and verifiable as the USDA data Since promulgation of the final RFS2 called the 2007 baseline area of land, is used to make the determination for U.S. regulations, we have received several not likely to be exceeded in the future. agricultural land. inquiries regarding the process, criteria, • Whether economic considerations, When evaluating whether the data and data needed for EPA to approve the legal constraints, historical land use and relied on are credible, reliable, and aggregate compliance approach for agricultural practices and other factors verifiable, EPA will take into account planted crops and crop residue grown in show that it is likely that producers of whether the data is submitted by, areas outside the U.S. Thus, in today’s the feedstock(s) will continue to use generated by, or approved by the rule, EPA is proposing a process by agricultural land within the baseline national government of the foreign which entities may petition EPA for area of land identified into the future, as country in question, as well as how approval of the aggregate compliance opposed to clearing and cultivating land comprehensive and accurate the data approach for specified renewable fuel not eligible under the 2007 baseline. source is. It is important for the national feedstocks either in a foreign country as • Whether there is a reliable method government of the area seeking a whole or in a specified geographical to evaluate on a continuing basis consideration be involved in this area within a country. The proposed whether the 2007 baseline area of land process, and we seek comment on regulations include a general criterion is being or has been exceeded. whether or not involvement of the and a number of considerations that • Whether an entity has been national government should be required EPA will use in evaluating petitions. identified to conduct data gathering and as part of the petitioning and/or data They also include a list of submissions analysis needed for an annual EPA submittal processes. Additionally, EPA that are required, absent an explanation evaluation of the aggregate compliance will take into consideration whether the by petitioner of why they should not be approach if EPA grants the petition. data is publically available, whether the required for EPA to approve a petition. EPA is requesting comments on the data collection and analysis The proposed rule also includes a proposed general criterion and specific methodologies and information on the description of the proposed process by considerations for approving the primary data source are available to which EPA would make decisions aggregate compliance approach for non- EPA, and whether the data has been concerning any petitions received. domestically grown feedstocks. The generated, analyzed, and/or approved or existing approved aggregate approach endorsed by an independent third party. 1. Criterion and Considerations for U.S. domestic feedstocks applies to EPA would also take into account the In developing these proposed all crops and crop residue that could be quality of the data that is available on regulations, EPA relied substantially on used in renewable fuel production. EPA an annual basis for EPA’s annual the approach we used to determine that has received inquiries on the extent to assessments of any approved aggregate an aggregate compliance approach was which approval could be obtained for a compliance approach, as well as appropriate for planted crops and crop single, or limited number, of feedstocks. whether the petitioner has identified an residue from U.S. agricultural land. The The proposed regulations leave open the entity who will provide to EPA an fundamental finding that would be possibility of feedstock-specific analysis of the data updates each year required of EPA in approving a petition petitions, but EPA particularly solicits following EPA’s approval of the for application of the aggregate comment on the extent to which aggregate compliance approach for that approach would be that an aggregate different or additional data submittals or area. Furthermore, EPA will consider compliance approach will provide inquiries would be appropriate for such agricultural land use trends from several reasonable assurance that specified petitions. years preceding 2007, as well as the renewable fuel feedstocks from a given 2. Data Sources years following 2007 to the time the geographical area meet the definition of petition is submitted in order to renewable biomass and will continue to To make the aggregate compliance evaluate whether or not it is likely that meet the definition of renewable determination for U.S. agricultural a 2007 baseline would be exceeded in biomass, based on the submission of lands, EPA obtained USDA data from the future. EPA will consider whether credible, reliable and verifiable data. three independently gathered national there are laws in place in the area for Based on our experience in making the land use data sources (the Farm Service which the petition was submitted that comparable finding for U.S.-grown Agency (FSA) Crop History Data, the might prohibit or incentivize the crops and crop residues, we are also USDA Census of Agriculture (2007), and clearing of new agricultural lands and proposing a number of more specific the satellite-based USDA Crop Data the efficacy of these laws. EPA will also factors that would be considered in Layer (CDL)). Please see Section assess whether any market factors are determining whether this finding II.C.4.c.iii. of the preamble to the final expected to drive an increase in the should be made, as described below. RFS2 rule (75 FR 14701 (March 26, demand for agricultural land. EPA is proposing to consider: 2010)) for a more detailed description of • Whether there has been a the data sources used. Using these data 3. Petition Submission reasonable identification of the sources, EPA was able assess the area of EPA is proposing that all submittals, aggregate amount of agricultural land in land (acreage) available in the United including the petition, supporting the specified geographical area on States under EISA for production of documentation, and annual data and December 19, 2007 that was available crops and crop residues that meet the analyses, be submitted in English. We for the production of the specified definition of renewable biomass. In the are also proposing that petitioners feedstock(s) and that satisfy the case of a petition to apply the aggregate submit specified information as part of definition of renewable biomass, taking compliance approach to feedstocks from their formal petition submission into account the definitions of terms a specific geographical area in a foreign package, or explain why such

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information is not necessary for EPA to such as grains, oilseeds, sugarcane, and the USDA Census of Agriculture approve their petition. Petitioners switchgrass, prairie grass, duckweed, from 1997 through 2007, finding that would need to submit an assessment of and other species (but not including there was an overall decade trend of the total amount of land that is cropland algae species or planted trees), contraction of agricultural land or pastureland that was cleared or providing they were intentionally utilization in the U.S. The petitioner cultivated prior to December 19, 2007 applied by humans to the ground, a would need to provide a description of and that was actively managed or fallow growth medium, a pond or tank, either any applicable laws, agricultural and nonforested on that date. For by direct application as seed or plant, or practices, economic considerations, or example, in assessing the amount of through intentional natural seeding or other relevant factors that had or may total existing agricultural land in the vegetative propagation by mature plants have an effect on the use of the land in U.S. on the enactment date of EISA, introduced or left undisturbed for that question. For the U.S. aggregate EPA used FSA Crop History data to purpose. Crop residue is defined as the compliance approach determination, show that there were 402 million acres biomass left over from the harvesting or EPA also took in account the EISA of agricultural land existing in the U.S. processing of planted crops from renewable fuel obligations, the in 2007. Additionally, if the petitioner existing agricultural land and any unsuitability and high cost of is seeking approval of the aggregate biomass removed from existing developing previously undeveloped compliance approach for a particular agricultural land that facilitates crop land for agricultural purposes, as well as feedstock, they would also need to management (including biomass projected increases in crop yields on submit an assessment of the total removed from such lands in relation to existing agricultural land. amount of agricultural land dedicated to invasive species control or fire Finally, the petitioner would be that feedstock in 2007 within the management), whether or not the required to provide EPA with a plan specified area. Petitioners would also be biomass includes any portion of a crop describing how the entity who will, on required to provide EPA with maps or or crop plant. Cropland is defined as a continuing yearly basis, conduct any electronic data identifying the land used for production of crops for data gathering and analysis necessary to boundaries of the land in question and harvest and includes cultivated assist EPA in its annual assessment of a description of the feedstock(s) for cropland, such as for row crops or close- any approved aggregate approach. In the which the petitioner is submitting the grown crops, and non-cultivated plan, the petitioner would describe the petition. cropland, such as for horticultural or data, the data source, and the schedule As part of the petition, the petitioner aquatic crops. Pastureland is land on which the data would be updated would be required to submit to EPA managed for the production of and made available to EPA and the land use data that demonstrates that the indigenous or introduced forage plants public. Additionally, the plan would land in question is agricultural land that for livestock grazing or hay production, include the entity’s strategy and was cleared or cultivated prior to and to prevent succession to other plant schedule for conducting an annual December 19, 2007 and that was types. It is important to note that EPA analysis of the data and providing it to actively managed or fallow and considers pastureland to be distinctly EPA. nonforested on that date, which may different from rangeland, which may be 4. Petition Process include satellite imagery data, aerial used for livestock grazing, but is not photography, census data, agricultural We believe that it will be important to managed to prevent succession to other incorporate a public comment surveys, and/or agricultural economic plant types. Finally, CRP land is land modeling data. As mentioned above, the component into EPA’s deliberations on enrolled in the US Conservation Reserve FSA crop history data used for the U.S. a petition made to incorporate an Program (administered by USDA’s Farm aggregate compliance approach aggregate compliance approach for a Service Agency), which encourages determination consists of annual new area. EPA plans to publish a farmers to convert highly erodible records of farm-level land use data that Federal Register notice informing the cropland or other environmentally includes all cropland and pastureland public of incoming petitions, with sensitive acreage to vegetative cover, in the U.S. EPA also considered USDA information on how to view the such as tame or native grasses, wildlife Census of Agriculture data, which petitions and any supporting plantings, trees, filterstrips, or riparian consists of a full census of the U.S. information. EPA proposes to then buffers. EPA recognizes that the CRP is agricultural sector once every five years, accept public comment on the petition as well as the USDA Nation Agricultural only applicable to U.S. agricultural for a specified period of time. Once the Statistics Service (NASS) Crop Data land. EPA solicits comments on whether public comment period closes, EPA will Layer (CDL), which is based on satellite the final rules should allow EPA to make an assessment, taking into account data. consider land that is equivalent or the information submitted in the In establishing the total amount of similar to US CRP land as existing petition as well as the comments existing agricultural land for the U.S. agricultural land for purposes of RFS2- received, and will then publish a aggregate compliance approach compliant feedstock cultivation in a decision in the Federal Register to determination, EPA relied on the RFS2 foreign country, and whether EPA either approve or deny the petitioner’s definitions of the relevant terms, should be able to make such a request. If the petition has been including planted crops, crop residue, determination in the context of a approved, the Federal Register notice and agricultural land, which is defined petition for application of the aggregate will specify an effective date at which as consisting of cropland, pastureland approach to a foreign country. time producers using the specified and CRP land. EPA will take into The petitioner would also be required feedstocks from the specified areas consideration whether the data to provide EPA with historical land use identified in EPA’s approval will be submitted by the petitioner relies on data for the land in question, covering subject to the aggregate compliance comparable definitions. For purposes of the years from prior to 2007 to the approach requirements in 40 CFR RFS2, planted crops are defined as all current year. For the U.S. aggregate 80.1454(g) in lieu of the renewable annual or perennial agricultural crops compliance approach determination, biomass recordkeeping and reporting from existing agricultural land that may EPA analyzed the FSA Crop History requirements. In the event that the be used as feedstocks for renewable fuel, data from the years 2005 through 2007 annual data submitted by the petitioner

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is insufficient to demonstrate that the protected by statute, please follow the the volumes that were analyzed in the baseline amount of land has not been instructions in Section VI.B. RFS2 final rule. This action also exceeded or if the annual data is not proposes two new regulatory provisions B. How should I submit CBI to the submitted in a timely manner, EPA will that have been determined to have no agency? make a finding that the baseline acreage adverse economic impact on regulated has been exceeded and producers using Do not submit information that you parties since they would increase crops or crop residue from the specified consider to be CBI electronically flexibility to produce qualifying area will be subject to the individual through the electronic public docket, renewable fuel under the RFS2 program. http://www.regulations.gov, or by e- recordkeeping and reporting B. Paperwork Reduction Act requirements described in the mail. Send or deliver information regulations. EPA is seeking comments identified as CBI only to the following The information collection on this proposed process. Additionally, address: U.S. Environmental Protection requirements in this proposed rule have EPA requests comment on whether the Agency, Assessment and Standards been submitted for approval to the burden associated with the petition Division, 2000 Traverwood Drive, Ann Office of Management and Budget process is reasonable, and how it might Arbor, MI 48105, Attention Docket ID (OMB) under the Paperwork Reduction be minimized while still remaining EPA–HQ–OAR–2010–0133. You may Act, 44 U.S.C. 3501 et seq. The adequately robust. Specific estimates claim information that you submit to Information Collection Request (ICR) about the time and cost of preparing a EPA as CBI by marking any part or all document prepared by EPA has been petition will be published in of that information as CBI (if you submit assigned EPA ICR number 2398.01. Information Collection Request CBI on disk or CD–ROM, mark the This proposed regulation has a associated with this proposed outside of the disk or CD–ROM as CBI provision that EPA would use to rulemaking. and then identify electronically within authorize renewable fuel producers the disk or CD–ROM the specific using foreign-grown feedstocks to use an VI. Public Participation information that is CBI). Information so aggregate approach to comply with the renewable biomass verification We request comment on all aspects of marked will not be disclosed except in provisions, similar to that applicable to this proposal. This section describes accordance with procedures set forth in producers using crops and crop residue how you can participate in this process. 40 CFR part 2. In addition to one complete version of grown in the United States. See A. How do I submit comments? the comments that include any discussion in Section V.B. For this authorization, foreign based entities We are opening a formal comment information claimed as CBI, a copy of could petition EPA for approval of the period by publishing this document. We the comments that does not contain the information claimed as CBI must be aggregate compliance approach for will accept comments during the period specified renewable fuel feedstocks indicated under DATES in the first part submitted for inclusion in the public docket. If you submit the copy that does either in a foreign country as a whole or of this proposal. If you have an interest in a specified geographical area within in the proposed standards and changes not contain CBI on disk or CD–ROM, mark the outside of the disk or CD–ROM a country. This petition request for to the RFS regulations described in this crops from foreign grown land areas document, we encourage you to clearly that it does not contain CBI. Information not marked as CBI will be would be voluntary. If approved by comment on any aspect of this EPA, such a petition would allow included in the public docket without rulemaking. We also request comment biomass produced in a foreign country prior notice. If you have any questions on specific topics identified throughout or geographical area to be counted as about CBI or the procedures for claiming this proposal. feedstock to make renewable fuel under CBI, please consult the person identified Your comments will be most useful if the RFS2 program. Other actions in this in the FOR FURTHER INFORMATION you include appropriate and detailed proposed regulation would not impose CONTACT section. supporting rationale, data, and analysis. any new information collection burdens Commenters are especially encouraged VII. Statutory and Executive Order on regulated entities beyond those to provide specific suggestions for any Reviews already required under RFS2. The changes that they believe need to be submission of this information is made. You should send all comments, A. Executive Order 12866: Regulatory required in order for EPA to evaluate except those containing proprietary Planning and Review and act on the petitions. Respondents information, to our Air Docket (see Under Executive Order (EO) 12866 may assert claims of business ADDRESSES in the first part of this (58 FR 51735, October 4, 1993), this confidentiality (CBI) for any or all of the proposal) before the end of the comment action is a ‘‘significant regulatory action’’ information they submit. We do not period. because it raises novel legal or policy believe that most respondents would You may submit comments issues. Accordingly, EPA submitted this characterize the information they electronically, by mail, or through hand action to the Office of Management and submit to us under this information delivery/courier. To ensure proper Budget (OMB) for review under EO collection as CBI. However, any receipt by EPA, identify the appropriate 12866 and any changes made in information claimed as confidential docket identification number in the response to OMB recommendations would be treated in accordance with 40 subject line on the first page of your have been documented in the docket for CFR Part 2 and established Agency comment. Please ensure that your this action. procedures. Information that is received comments are submitted within the The economic impacts of the RFS2 without a claim of confidentiality may specified comment period. Comments program on regulated parties, including be made available to the public without received after the close of the comment the impacts of the required volumes of further notice to the submitter under 40 period will be marked ‘‘late.’’ EPA is not renewable fuel, were already addressed CFR 2.203. required to consider these late in the RFS2 final rule promulgated on EPA estimates that there would be 15 comments. If you wish to submit March 26, 2010 (75 FR 14670). This respondents (petitioners), submitting 15 Confidential Business Information (CBI) action proposes the percentage responses (petitions) in response to this or information that is otherwise standards applicable in 2011 based on provision. The estimated burden annual

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burden, assuming 15 respondents, proposed action will not have a F. Executive Order 13175: Consultation would be 200 hours and annual cost is significant economic impact on a and Coordination With Indian Tribal $14,196. Burden is defined at 5 CFR substantial number of small entities. Governments 1320.3(b). This rule sets the annual standard for This action does not have tribal An agency may not conduct or cellulosic biofuels, proposes a implications, as specified in Executive sponsor, and a person is not required to regulatory provision for the generation Order 13175 (65 FR 67249, November 9, respond to, a collection of information of Delayed RINs, and establishes criteria 2000). This proposed rule does not have unless it displays a currently valid OMB for foreign countries to adopt an tribal implications, as this rule will be control number. The OMB control aggregate approach of compliance with implemented at the Federal level and numbers for EPA’s regulations in 40 the renewable biomass provision similar impose compliance costs only on CFR are listed in 40 CFR part 9. to that used in the U.S. However, the transportation fuel refiners, blenders, To comment on the Agency’s need for impacts of the RFS2 program on small marketers, distributors, importers, and this information, the accuracy of the entities were already addressed in the exporters. Tribal governments would be provided burden estimates, and any RFS2 final rule promulgated on March affected only to the extent they purchase suggested methods for minimizing 26, 2010 (75 FR 14670). Therefore, this and use regulated fuels. Thus, Executive respondent burden, EPA has established proposed rule will not impose any Order 13175 does not apply to this a public docket for this rule, which additional requirements on small action. includes this ICR, under Docket ID entities. We continue to be interested in number EPA–HQ–OAR–2010–0133. the potential impacts of the proposed G. Executive Order 13045: Protection of Submit any comments related to the ICR rule on small entities and welcome Children From Environmental Health to EPA and OMB. See ADDRESSES comments on issues related to such Risks and Safety Risks section at the beginning of this notice impacts. EPA interprets EO 13045 (62 FR for where to submit comments to EPA. 19885, April 23, 1997) as applying only Send comments to OMB at the Office of D. Unfunded Mandates Reform Act to those regulatory actions that concern Information and Regulatory Affairs, This action contains no Federal health or safety risks, such that the Office of Management and Budget, 725 mandates under the provisions of Title analysis required under section 5–501 of 17th Street, NW., Washington, DC II of the Unfunded Mandates Reform the EO has the potential to influence the 20503, Attention: Desk Office for EPA. Act of 1995 (UMRA), 2 U.S.C. 1531– regulation. This action is not subject to Since OMB is required to make a 1538 for State, local, or tribal EO 13045 because it does not establish decision concerning the ICR between 30 governments or the private sector. The an environmental standard intended to and 60 days after July 20, 2010, a action imposes no enforceable duty on mitigate health or safety risks and comment to OMB is best assured of any State, local or tribal governments or because it implements specific having its full effect if OMB receives it the private sector. Therefore, this action standards established by Congress in by August 19, 2010. The final rule will is not subject to the requirements of statutes. respond to any OMB or public sections 202 or 205 of the UMRA. comments on the information collection H. Executive Order 13211: Actions This action is also not subject to the requirements contained in this proposal. Concerning Regulations That requirements of section 203 of UMRA Significantly Affect Energy Supply, C. Regulatory Flexibility Act because it contains no regulatory Distribution, or Use requirements that might significantly or The Regulatory Flexibility Act (RFA) This rule is not a ‘‘significant energy uniquely affect small governments. generally requires an agency to prepare action’’ as defined in Executive Order a regulatory flexibility analysis of any E. Executive Order 13132: Federalism 13211, ‘‘Actions Concerning Regulations rule subject to notice and comment That Significantly Affect Energy Supply, This action does not have federalism rulemaking requirements under the Distribution, or Use’’ (66 FR 28355 (May Administrative Procedure Act or any implications. It will not have substantial 22, 2001)) because it is not likely to other statute unless the agency certifies direct effects on the States, on the have a significant adverse effect on the that the rule will not have a significant relationship between the national supply, distribution, or use of energy. economic impact on a substantial government and the States, or on the number of small entities. Small entities distribution of power and I. National Technology Transfer include small businesses, small responsibilities among the various Advancement Act organizations, and small governmental levels of government, as specified in Section 12(d) of the National jurisdictions. Executive Order 13132. This proposed Technology Transfer and Advancement For purposes of assessing the impacts rule does not have federalism Act of 1995 (‘‘NTTAA’’), Public Law of today’s rule on small entities, small implications. It will not have substantial 104–113, 12(d) (15 U.S.C. 272 note) entity is defined as: (1) A small business direct effects on the States, on the directs EPA to use voluntary consensus as defined by the Small Business relationship between the national standards in its regulatory activities Administration’s (SBA) regulations at 13 government and the States, or on the unless to do so would be inconsistent CFR 121.201; (2) a small governmental distribution of power and with applicable law or otherwise jurisdiction that is a government of a responsibilities among the various impractical. Voluntary consensus city, county, town, school district or levels of government, as specified in standards are technical standards (e.g., special district with a population of less Executive Order 13132. Thus, Executive materials specifications, test methods, than 50,000; and (3) a small Order 13132 does not apply to this rule. sampling procedures, and business organization that is any not-for-profit In the spirit of Executive Order 13132, practices) that are developed or adopted enterprise which is independently and consistent with EPA policy to by voluntary consensus standards owned and operated and is not promote communications between EPA bodies. NTTAA directs EPA to provide dominant in its field. and State and local governments, EPA Congress, through OMB, explanations After considering the economic specifically solicits comment on this when the Agency decides not to use impacts of today’s proposed rule on proposed rule from State and local available and applicable voluntary small entities, we certify that this officials. consensus standards.

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This proposed rulemaking does not 2. Section 80.1426 is amended by (VRIN) under paragraph (f) of this section involve technical standards. Therefore, revising paragraph (e)(1) and adding shall be the standardized volume of EPA is not considering the use of any paragraph (g) to read as follows: renewable fuel produced or imported voluntary consensus standards. between July 1, 2010 and the effective § 80.1426 How are RINs generated and date of the rule in which the pathway J. Executive Order 12898: Federal assigned to batches of renewable fuel by is added. Actions to Address Environmental renewable fuel producers or importers? (ii) The renewable fuel for which Justice in Minority Populations and * * * * * delayed RINs are generated must be Low-Income Populations (e) * * * described by a pathway that has been (1) Except as provided in paragraph Executive Order (EO) 12898 (59 FR added to Table 1 to § 80.1426 on or after (g)(7) of this section for delayed RINs, 7629 (Feb. 16, 1994)) establishes Federal July 1, 2010 and before January 1, 2011. executive policy on environmental the producer or importer of renewable (7) All delayed RINs generated by a justice. Its main provision directs fuel must assign all RINs generated to renewable fuel producer must be Federal agencies, to the greatest extent volumes of renewable fuel. generated on the same date. practicable and permitted by law, to * * * * * (8) Delayed RINs shall have a K code make environmental justice part of their (g) Delayed RIN generation. Parties of 2. mission by identifying and addressing, who produce or import renewable fuel (9) The D code that shall be used in as appropriate, disproportionately high may generate delayed RINs to represent delayed RINs generated shall be the D and adverse human health or renewable fuel volumes that have code specified in Table 1 to § 80.1426 environmental effects of their programs, already been transferred to another which corresponds to the pathway that policies, and activities on minority party if those renewable fuel volumes describes the producer’s operations. populations and low-income can be described by a pathway that has 3. Section 80.1454 is amended by populations in the United States. been added to Table 1 to § 80.1426 on revising paragraph (g) introductory text EPA has determined that this or after July 1, 2010 and before January to read as follows: proposed rule will not have 1, 2011. (1) When a new pathway is added to § 80.1454 What are the recordkeeping disproportionately high and adverse requirements under the RFS Program? human health or environmental effects Table 1 to § 80.1426, EPA will specify * * * * * on minority or low-income populations the effective date of that new pathway. (g) Aggregate compliance with because it does not affect the level of (2) Delayed RINs must be generated renewable biomass requirement. Any protection provided to human health or within 30 days of the effective date of producer or RIN-generating importer of the environment. This action does not the rule in which the pathway is added. (3) Delayed RINs may only be renewable fuel made from planted crops relax the control measures on sources generated to represent renewable fuel or crop residue from existing U.S. regulated by the RFS2 regulations and produced or imported between July 1, agricultural land as defined in therefore will not cause emissions 2010 and the effective date of the rule § 80.1401, or any producer or RIN- increases from these sources. in which the pathway is added. generating importer of renewable fuel VIII. Statutory Authority (4) If a party originally generated and made from feedstock covered by a transferred RINs with renewable fuel petition approved pursuant to § 80.1457, Statutory authority for this action volumes, and those RINs can be is subject to the aggregate compliance comes from section 211 of the Clean Air described by a pathway added to Table approach and is not required to Act, 42 U.S.C. 7545. Additional support 1 to § 80.1426 on or after July 1, 2010 maintain feedstock records unless EPA for the procedural and compliance and before January 1, 2011, that party publishes a finding that the 2007 related aspects of today’s proposal, must retire a number of gallon-RINs baseline amount of agricultural land has including the proposed recordkeeping prior to generating delayed RINs. been exceeded or that the criterion in requirements, come from Sections 114, (i) The number of gallon-RINs retired § 80.1457(a) is no longer satisfied. 208, and 301(a) of the Clean Air Act, 42 must not exceed the number of gallon- U.S.C. Sections 7414, 7542, and 7601(a). * * * * * RINs originally generated to represent 4. Section 80.1457 is added to read as List of Subjects in 40 CFR Part 80 the renewable fuel volumes produced or follows: imported between July 1, 2010 and the Environmental protection, Air effective date of the rule in which the § 80.1457 Petition process for international pollution control, Diesel Fuel, Fuel pathway is added. aggregate compliance approach. additives, Gasoline, Imports, Labeling, (ii) Retired RINs must have a D code (a) EPA may approve a petition for Motor vehicle pollution, Penalties, of 6. application of the aggregate compliance Reporting and recordkeeping (iii) Retired RINs must have a K code approach to non-U.S. planted crops and requirements. of 2. crop residues from existing foreign Dated: July 9, 2010. (iv) Retired RINs must have been agricultural land if it determines that an Lisa P. Jackson, generated in 2010. aggregate compliance approach will Administrator. (5) For parties that retire RINs provide reasonable assurance that For the reasons set forth in the pursuant to paragraph (g)(4) of this specified renewable fuel feedstocks preamble, 40 CFR part 80 is proposed to section, the number of delayed gallon- from a given geographical area meet the be amended as follows: RINs generated shall be equal to the definition of renewable biomass and number of gallon-RINs retired. will continue to meet the definition of PART 80—REGULATION OF FUELS (6) For parties that did not retire RINs renewable biomass, based on the AND FUEL ADDITIVES pursuant to paragraph (g)(4) of this submission of credible, reliable, and section, the number of delayed gallon- verifiable data. 1. The authority citation for part 80 RINs generated shall be determined (1) As part of its evaluation, EPA will continues to read as follows: pursuant to paragraph (f) of this section. consider: Authority: 42 U.S.C. 7414, 7542, 7545, and (i) The standardized volume of fuel (i) Whether there has been a 7601(a). (Vs) used to determine the RIN volume reasonable identification of the

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aggregate amount of agricultural land in December 19, 2007 and actively will, on a continuing basis, conduct data the specified geographical area as of managed or fallow and nonforested on gathering, analysis, and submittal to December 19, 2007 that was available that date. assist EPA in making an annual for the production of the specified (ii) If the petitioner is seeking determination of whether the criterion feedstock(s) and that satisfy the approval of the aggregate compliance specified in paragraph (a) of this section definition of renewable biomass; approach for a particular planted crop remains satisfied. (ii) Whether information from years or crop residue, the total amount of land (8) Any additional information the preceding and following 2007 shows within the geographic boundaries Administrator may require. that the 2007 amount of agricultural specified in paragraph (b)(1) of this (c) If EPA approves a petition it will land identified in paragraph (a)(1)(i) of section that was used for the production issue a Federal Register notice this section is not likely to be exceeded of that feedstock in 2007 and that was announcing its decision and specifying in the future; actively managed or fallow and an effective date for the application of (iii) Whether economic nonforested on that date, and the total the aggregate compliance approach to considerations, legal constraints, amount of land within the geographic the specified feedstock(s) from the historical land use and agricultural boundaries specified in paragraph (b)(1) specific geographical area. Thereafter, practices, and/or other factors show that of this section that was used for the the specified feedstocks from the it is likely that producers of the production of that feedstock in 2007 specified area will be covered by the feedstock(s) will continue to use that was not cleared or cultivated prior aggregate compliance approach set forth agricultural land within area of land to December 19, 2007 and actively in § 80.1454(g), or as otherwise specified identified in paragraph (a)(1)(i) of this managed or fallow and nonforested on pursuant to paragraph (d) of this section in the future as opposed to that date. section. clearing and cultivating land that was (3) A description of the feedstock(s) (d) If EPA grants a petition to not included in that area of land. for which the petitioner is submitting establish an aggregate compliance (iv) Whether there is a reliable the petition. approach for a specified feedstock(s) method to evaluate on a continuing (4) Land use data that demonstrates from a specific geographical area, it may basis whether the 2007 area of land that the land in question in paragraph include any conditions that EPA identified in paragraph (a)(1)(i) of this (b)(1) of this section is cropland or considers appropriate in light of the section is being exceeded; and pastureland that was cleared or conditions and circumstances involved. (v) Whether an entity has been cultivated prior to December 19, 2007 (e)(1) EPA may withdraw its approval identified to conduct data gathering and and that was actively managed or fallow of the aggregate approach for the area analysis needed for the evaluation and nonforested on that date, which and feedstocks in question if: specified in paragraph (a)(1)(iv) of this may include any of the following: (i) EPA determines that the data section, for submission to EPA on an (i) Satellite imagery data. submitted pursuant to the plan annual basis if EPA grants the petition. (ii) Aerial photography. described in paragraph (b)(7) of this (2) [Reserved] (iii) Census data. section does not demonstrate that the (b) Any petition submitted under (iv) Agricultural surveys. amount of cropland and pastureland paragraph (a) of this section must be in (v) Agricultural economic modeling within the geographic boundaries the English language, and must include data. covered by the approved petition does all of the following, or an explanation of (5) Historical land use data for the not exceed the 2007 baseline amount of why it is not needed for EPA to approve land within the geographic boundaries land; the petition: specified in paragraph (b)(1) of this (ii) EPA determines based on other (1) Maps or electronic data identifying section to the current year, which may information that the criterion specified the boundaries of the land for which the include any of the following: in paragraph (a) of this section is no petitioner seeks approval of an aggregate (i) Satellite imagery data. longer satisfied; or compliance approach. (ii) Aerial photography. (2)(i) For petitions regarding crops or (iii) Census data. (iii) EPA determines that the data crop residue, the total amount of land (iv) Agricultural surveys. needed for its annual evaluation has not that is cropland or pastureland within (v) Agricultural economic modeling been collected and submitted in a the geographic boundaries specified in data. timely and appropriate manner. paragraph (b)(1) of this section that was (6) A description of any applicable (2) If EPA withdraws its approval, cleared or cultivated prior to December laws, agricultural practices, economic then producers using feedstocks from 19, 2007 and that was actively managed considerations, or other relevant factors that area will be subject to the or fallow and nonforested on that date, that had or may have an effect on the individual recordkeeping and reporting and the total amount of land that is use of the land within the geographic requirements of § 80.1454(b) through (d) cropland or pastureland within the boundaries specified in paragraph (b)(1) in accordance with the schedule geographic boundaries specified in of this section. specified in § 80.1454(g). paragraph (b)(1) of this section that was (7) A plan describing how the [FR Doc. 2010–17281 Filed 7–19–10; 8:45 am] not cleared or cultivated prior to petitioner will identify an entity who BILLING CODE 6560–50–P

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Part IV

Securities and Exchange Commission 5 CFR Part 4401 and 17 CFR Part 200 Adoption of Supplemental Standards of Ethical Conduct for Members and Employees of the Securities and Exchange Commission and Revisions to the Commission’s Ethics Rules; Final Rule

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SECURITIES AND EXCHANGE comprehensive, and clear set of persons for whom the member or COMMISSION executive-branch standards of conduct. employee serves as legal guardian. On August 7, 1992, OGE published the New Rule 4401.102(b)(1) prohibits 5 CFR Part 4401 and 17 CFR Part 200 Standards of ethical conduct for members and employees from [Release No. 34–62501] employees of the executive branch, purchasing or selling a security while in codified at 5 CFR part 2635, to establish possession of material nonpublic Adoption of Supplemental Standards uniform standards of ethical conduct for information, as defined in 5 CFR of Ethical Conduct for Members and all executive branch employees.6 With 2635.703(b). Rule 2635.703(b) states that Employees of the Securities and the concurrence of OGE, 5 CFR nonpublic information is information Exchange Commission and Revisions 2635.105 authorizes executive branch that the individual gains through his or to the Commission’s Ethics Rules agencies to publish agency-specific her Federal position, which the person supplemental regulations necessary to knows or reasonably should know is not AGENCY: Office of Government Ethics implement their respective ethics available to the general public. Under and Securities and Exchange programs. this definition, nonpublic information Commission. The Commission has responsibility includes information routinely exempt ACTION: Final rule. for oversight of the securities industry from disclosure under the Freedom of and the protection of investors. These Information Act, 5 U.S.C. 552 or SUMMARY: The Securities and Exchange new supplemental standards are otherwise protected by statute, rule, or Commission with the concurrence of the necessary to re-codify and provide Executive Order; information that the Office of Government Ethics is adopting guidance to Commission members and Commission designates as confidential; supplemental standards of ethical employees on permitted, prohibited, and information that is not generally conduct for the Commission’s members and restricted financial interests and available to the public and that the and employees. The new supplemental transactions and on engaging in outside Commission has not actually released or standards give guidance to Commission employment and activities. The disseminated.7 members and employees on permitted, Commission is also updating its existing New Rule 4401.102(b)(2) prohibits prohibited, and restricted financial ethics rules to conform to OGE’s members or employees from interests and transactions and on government-wide ethics obligations and recommending or suggesting the engaging in outside employment and reflect current Commission policies. purchase or sale of a security either activities. In addition, the Commission A. The Commission’s supplemental based on material nonpublic has revised its ethics rules to make them standards are contained in new 5 CFR information about the security or which compatible with the Office of part 4401. New Rule 4401.101 (General) the member or employee cannot Government Ethics’ government-wide states that Commission members and purchase or sell because of this rule’s ethics provisions and to reflect current employees must comply with 5 CFR restrictions. Commission policies. part 2635 (Standards of ethical conduct New Rule 4401.102(c) states that DATES: Effective Date: August 19, 2010. for employees of the executive branch). members and employees may not— FOR FURTHER INFORMATION CONTACT: New Rule 4401.101 further states that —Knowingly purchase or hold a Richard E. Connor, Office of the General members and employees are subject to security or other financial interest in Counsel, (202) 551–5170, Securities and the Executive branch financial an entity directly regulated by the Exchange Commission, 100 F Street, disclosure regulations, 5 CFR part 2634; Commission; NE., Washington, DC 20549–1050. the Office of Personnel Management’s —Purchase a security in an initial SUPPLEMENTARY INFORMATION: The Employee responsibilities and conduct public offering (‘‘IPO’’) for seven Securities and Exchange Commission regulations at 5 CFR part 735; and 17 calendar days after the IPO is with the concurrence of the Office of CFR part 200, subparts C and M, as effective, except for IPOs of shares in Government Ethics (‘‘OGE’’) is adopting amended, the Commission’s Canons of a registered investment company or supplemental standards of ethical ethics and the Regulation concerning other publicly traded or publicly conduct for the Commission’s members conduct of members and employees and available collective investment fund; and employees. The Commission first former members and employees. —Purchase or carry securities on adopted conduct regulations in 1953 ‘‘to New Rule 4401.102 (Prohibited and margin; —Sell securities short; 8 restate the ethical principles which it restricted financial interests and —Enter into a financial relationship or believes should govern and have transactions) supersedes former obtain a loan from an entity or person governed the conduct of members and Commission ethics rule 735–5 directly regulated by the Commission employees and former members and (Securities transactions). New Rule and receive terms more favorable than employees.’’ Subsequent comprehensive 4401.102(a) provides that the rule’s would be available in like revisions in 1966 and 1980 were provisions apply to all securities circumstances to members of the enacted to provide members, holdings or transactions effected public, except as otherwise permitted employees, special government directly or indirectly on behalf of the employees, and former Commission member or employee. The rule’s 7 Prohibitions regarding disclosure or use of members and employees with a requirements also extend to holdings confidential or nonpublic information are set forth comprehensive statement of standards and transactions of or on behalf of the in Clause 30 of Schedule A of the Securities Act of of conduct which are dictated by member’s or employee’s spouse, 1933, 15 U.S.C. 77aa(30) and Securities Act Rules applicable Federal law, Executive 122 and 406 (17 CFR 230.122, 230.406); sections unemancipated minor children, or 13(f)(3) and 24(b) of the Securities Exchange Act of Orders, and the Commission’s own 1934 (15 U.S.C. 78m(f)(3), 78x) and Exchange Act requirements.5 6 See 57 FR 35006–35067 (Aug. 7, 1992), as Rule 0–4 (17 CFR 240.24b–2); section 45(a)(1) of the Executive Order 12674, as amended corrected at 57 FR 48557 (Oct. 27, 1992) and 57 FR Investment Company Act of 1940 (15 U.S.C. 80a– by Executive Order 12731, authorized 52583 (Nov. 4, 1992), with additional grace period 44) and Investment Company Act Rule 45a–1 (17 extensions at 59 FR 4779–4780 (Feb. 2, 1994), 60 CFR 270.45a–1); and section 210(b) of the OGE to establish a single, FR 6390–6391 (Feb. 2, 1995), 60 FR 66857–66858 Investment Advisers Act of 1940 (15 U.S.C. 80b– (Dec. 27, 1995) and 61 FR 40950–40952 (Aug. 7, 10). 5 See, e.g., 45 FR 36064 (May 29, 1980). 1996). 8 Short selling is defined in 17 CFR 242.200(a).

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by 5 CFR 2635, subpart B (Gifts from purchases and sales is also done trust or have knowledge of its outside sources); through EPS. holdings or transactions; —Engage in any transactions involving Consistent with current Commission —The acceptance or reinvestment of derivatives, except for transactions in standards, new Rule 4401.102(g)(1) stock dividends on securities already shares in a registered investment excludes certain transactions and owned; company or other publicly traded or holdings from the rule’s requirements. —The exercise of a right to convert publicly available collective Certain holdings and transactions are securities; and investment fund; or excluded from the prohibition of new —The acquisition of stock or the —Purchase or sell any security of an Rule 4401.102(c) and the prior acquisition or exercise of employee entity that is under investigation by clearance, holding period, and reporting stock options or similar instruments the Commission, a party to a requirements. These include: received as compensation and issued proceeding before the Commission, or —Transactions effected by the member’s by either (i) a member’s or employee’s a party to a proceeding in which the or employee’s spouse on behalf of former employer or (ii) the present or Commission is a party. someone other than the member or former employer of the member’s or New Rule 4401.102(d)(1) generally employee, the spouse, their employee’s spouse. requires members and employees to unemancipated minor child, or a New Rule 4401.102(h) sets forth the clear any securities or related financial person for whom the member or circumstances under which members transaction. Currently, the Commission employee serves as legal guardian; and employees may seek a waiver of the is clearing transactions through the —Holdings or transactions effected by a requirements of the rule. Ethics Program System (‘‘EPS’’) member’s or employee’s legally New Rule 4401.103 supersedes in part computer system. New Rule separated spouse living apart from the Commission rule 735–4, 17 CFR 4401.102(d)(2) provides that, if the member or employee (even if for their 200.735–4 (Outside employment and member or employee obtains clearance unemnacipated minor child) so long activities) and sets forth the of the transaction as provided in the as the member or employee does not circumstances under which rule, that clearance will be prima facie in fact control, advise with respect to, Commission members, employees, and evidence that the member or employee or have knowledge of these holdings special government employees may did not knowingly purchase, sell, or and transactions; engage in outside employment or hold a security of a regulated entity; —U.S. Government or Federal activities. New Rule 4401.103(a)(2) improperly purchase an IPO or engage government agency securities; broadly defines employment to include in a transaction in a derivative; or —Investments in the Thrift Savings Plan any form of non-Federal employment or improperly purchase or sell a security of or a government retirement plan business relationship, involving the an entity subject to Commission administered by a Federal agency; and provision of personal service by the investigation or enforcement action. —Certificates of deposit and comparable employee. The definition includes New Rule 4401.102(e) provides instruments issued by depository acting as an officer, director, employee, generally that members and employees institutions subject to Federal agent, attorney, consultant, contractor, must hold a security for a minimum of regulation and Federal deposit general partner, trustee, teacher, writer, six months from the trade date.9 Under insurance. or speaker. The rule excludes new Rule 4401.102(e)(2), the holding In accordance with existing standards, participation in certain nonprofit period does not apply to securities that new Rule 4401.102(g)(2) provides that religious, charitable, and civic are sold for 90 percent or less of their certain additional transactions are not organizations from the definition of original purchase price; securities with prohibited by new Rule 4401.102(c) and employment unless the person (i) serves an initial term of less than six months excludes these holdings and as an officer or director; (ii) provides that are held to term; or shares in money transactions from the prior clearance professional services or advice; (iii) market funds. New Rule 4401.102(e)(3) and holding requirements. However, receives compensation (other than requires members and employees to these interests must be reported in reimbursement for expenses) from the hold shares of registered investment accordance with new Rule 4401.102(f). organization; or (iv) is an active companies for a minimum of 30 days This exclusion applies to: participant as defined in 5 CFR from the purchase date. —The holdings of a trust in which the 2635.502(b)(1)(v) on a committee of a New Rule 4401.102(f)(1) generally member or employee (or the member’s professional organization whose requires members and employees to or employee’s spouse, the member’s interests may be substantially affected report all securities holdings as required or employee’s unemancipated minor by the Commission. by the Designated Agency Ethics child, or person for whom the New Rule 4401.103(b) encourages Official (‘‘DAEO’’). Currently, this member or employee serves as legal members and employees to participate reporting occurs through EPS. Also, guardian) is (i) solely a vested in pro bono and community service so members and employees must provide beneficiary of an irrevocable trust or long as that service is consistent with duplicate statements for every account (ii) solely a vested beneficiary of a OGE’s requirements including 5 CFR containing reportable securities to the revocable trust where the trust parts 2634 (governing financial DAEO. Under new Rule 4401.102(f)(2) instrument expressly directs the reporting) and 2635 (establishing the members and employees must report all trustee to make present, mandatory government-wide ethics standards), as purchases and sales within five days of distributions of trust income or well as the restrictions contained in 18 receipt of confirmation of the principal; provided, that the member U.S.C. 203 (prohibiting seeking or transaction.10 The reporting of or employee did not create the trust, receiving compensation for has no power to control, and does not, representational services before the 9 This rule applies to securities purchased after in fact, control or advise with respect Government), 205 (prohibiting assisting Commission employment. in prosecution of claims against or 10 Any person who receives a conditional offer of to the holdings and transactions of the employment from the Commission must report all acting as attorney or agent before the securities holdings after acceptance of that offer and Commission on the prescribed form. These reports Government), and 208 (prohibiting an before commencement of employment with the are currently received on SEC Form 682. employee’s participation in matters

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affecting the employee’s own financial Certain Commission ethics II. Costs and Benefits of the interest and those of certain specified requirements remain in effect. Under 17 Amendments persons and organizations). CFR 200.735–3(b) (General provisions), Taken as a whole, the Commission Under new Rule 4401.103(d)(1), each a member or employee shall not engage and the public have a substantial employee must obtain prior approval in any personal business transaction or interest in the integrity of the before engaging in any outside arrangement for personal profit which Commission’s processes. Congress has employment, whether or not for arises from his or her official position or directed the Commission to oversee the compensation. New Rule authority or is based on nonpublic securities markets and securities 4401.103(c)(1)(i) provides that no information obtained by virtue of that professionals and to protect investors. employee may engage in any outside position or authority. The restrictions To that end, the ethical standards employment or activity that conflicts on release of nonpublic Commission contained in the rules enacted today with Commission employment. New documents contained in 17 CFR require the Commission’s members and Rule 4401.103(c)(1)(iii) prohibits any 200.735–3(b)(2) (Policy) (formerly Rule employees to maintain high standards of employee from (i) outside employment 735–3(b)(7)) also remain in effect. The honesty, integrity, and impartiality, and on behalf of any entity regulated by the Commission encourages its members to avoid actual, or the appearance of, Commission; (ii) engaging in activity and employees to engage in teaching, conflicts of interest. directly or indirectly related to the lecturing, and writing. Therefore, the issuance, purchase, investment, or In general, the costs of the procedures provisions governing those activities, in the Commission’s rules of practice trading of securities or securities including the clearance of publications futures, except for securities holdings or fall largely on the Commission and its and speeches, contained in 17 CFR employees. As noted, the amendments transactions permitted by new Rule 200.735–4(b) and (d) (formerly Rules 4401.102; or (iii) engaging in work set forth in this release relate to internal 735–4(b)(5) and (e)), continue. agency management. These rules re- otherwise involved with the securities The Commission will also continue to codify pre-existing obligations on the industry. Commission members are require any former member or employee Commission’s members and employees subject to the restrictions of Section 4(a) who is retained or employed to with certain minor modifications. As of the Securities Exchange Act of 1934, represent any person before the such, the Commission believes that the 15 U.S.C. 78d(a). Commission within two years of leaving costs imposed by compliance with these Under new Rule 4401.103(d)(2), an the Commission to provide written amended rules have not substantially employee’s request for prior approval of notice of that representation. 17 CFR increased from the obligations of any outside employment must be made 200.735–8(b) (Practice by former Commission members and employees both to the appropriate Division members and employees of the before these amendments. Directors, Office Heads, or Regional Commission). Directors as well as the Commission’s The amendments also replace III. Consideration of Burden on Office of the General Counsel’s Ethics references to the Director of Personnel Competition Office. New Rule 4401.103(d)(3) with references to the General Counsel, Section 23(a)(2) of the Exchange Act, requires that the request identify the the Commission’s Office of the General 15 U.S.C. 78w(a)(2), requires the proposed outside employer; describe the Counsel’s Ethics Office, and the Commission, in making rules pursuant work to be performed, the duration of Designated Agency Ethics Official to to any provision of the Exchange Act, to the employment, and any compensation reflect current agency practice. to be received; and include a statement consider among other matters the that the employee will disqualify I. Administrative Procedure Act, impact any such rule would have on himself or herself from matters Regulatory Flexibility Act, and competition. The purposes of the involving the proposed employer. Paperwork Reduction Act Exchange Act include protection of Under new Rule 4401.103(d)(4), the The Commission finds, in accordance interstate commerce and maintenance of request must be updated annually or if with section 553(b)(3)(A) of the fair and honest markets. The degree of there is a significant change in either the Administrative Procedure Act,11 that trust that investors and the public have nature of the employment or in the these rules relate solely to agency in the Commission and its employees is employee’s position with the organization, procedure, or practice. critical to these goals. The Commission Commission. New Rule 4401.103(d)(5) These rules are therefore not subject to and its employees must adhere to the provides that approval will be granted the provisions of the Administrative highest standards of integrity and only if the outside employment does not Procedure Act requiring notice, impartiality and avoid the appearance of involve conduct prohibited by law or opportunity for public comment, and conflicts of interest. These rules affect a regulation, including the government- publication. The Regulatory Flexibility relatively small number of persons. wide ethics requirements in 5 CFR part Act 12 therefore does not apply. Because Therefore, the Commission has 2635. these rules relate to ‘‘agency determined that the burden on B. The Commission is separately organization, procedure or practice that competition is small and is necessary amending its Regulation concerning does not substantially affect the right or and appropriate in furtherance of the conduct of Commission members and obligations of non-agency parties,’’ they purposes of the Exchange Act. employees and former members and are not subject to the Small Business Section 2(b) of the Securities Act, 15 employees, 17 CFR 200–735–1 et seq. Regulatory Enforcement Fairness Act.13 U.S.C. 77b(b); Section 3(f) of the These amendments generally delete The rules do not contain any new Exchange Act, 15 U.S.C. 78c(f); Section Commission requirements that are collection of information requirements 2(c) of the Investment Company Act of duplicative of OGE’s government-wide as defined by the Paperwork Reduction 1940, 15 U.S.C. 80a–2(c); and Section requirements. The amendments also Act of 1995, as amended.14 202(c) of the Investment Advisers Act of direct members, employees, special 1940, 15 U.S.C. 80b–2(c) require that the government employees, and former 11 5 U.S.C. 553(b)(3)(A). Commission consider efficiency, members and employees to the 12 5 U.S.C. 601 et seq. competition, and capital formation, in applicable ethics laws and regulations 13 5 U.S.C. 804(3)(C). addition to the protection of investors, for ease of reference. 14 44 U.S.C. 3501 et seq. whenever it is required to consider or

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determine whether an action is 215, as modified by E.O. 12731, 55 FR 42547; an entity directly regulated by the necessary or appropriate in the public 3 CFR, 1990 Comp., p. 306; 5 CFR 2635.105, Commission; interest. As noted above, these rules 2635.403, 2635.803; 15 U.S.C. 77s, 78w, (2) Purchasing a security in an initial apply to a relatively small number of 77sss, 80a–37, 80b–11. public offering (‘‘IPO’’) for seven people and do not substantially alter § 4401.101 General. calendar days after the IPO effective date, except that this prohibition does their pre-existing obligations. The In accordance with 5 CFR 2635.105, not apply to an IPO of shares in a Commission believes that the the regulations in this part apply to registered investment company or other amendments that the Commission is members and employees of the publicly traded or publicly available adopting today will have a small impact Securities and Exchange Commission collective investment fund; on competition, the capital markets, or (‘‘Commission’’) and supplement the capital formation. (3) Purchasing or otherwise carrying Standards of ethical conduct for securities on margin; IV. Statutory Basis for the Rules employees of the executive branch (4) Selling securities short as defined These new supplemental rules and contained in 5 CFR part 2635. Members in 17 CFR 242.200(a); the amendments to the Commission’s and employees of the Commission are (5) Accepting a loan from, or entering ethics rules are being adopted pursuant required to comply with 5 CFR part into any other financial relationship to statutory authority granted to OGE 2635 and this part. In addition, they are with, an entity, institution or other and to the Commission. These include subject to the Executive branch financial person directly regulated by the 5 U.S.C. 7301; 5 U.S.C. App. (Ethics in disclosure regulations, 5 CFR part 2634; Commission if the loan or financial Government Act of 1978); section 19 of the Office of Personnel Management relationship is governed by terms more the Securities Act of 1933, 15 U.S.C. Employee responsibilities and conduct favorable than would be available in 77s; section 23 of the Securities regulations at 5 CFR part 735; and the like circumstances to members of the Exchange Act of 1934, 15 U.S.C. 78w; Commission’s Canons of ethics and public, except as otherwise permitted by section 319 of the Trust Indenture Act Regulation concerning conduct of 5 CFR part 2635, subpart B (Gifts from of 1939, 15 U.S.C. 77sss; section 40 of members and employees and former outside sources); the Investment Company Act of 1940, members and employees, 17 CFR part (6) Engaging in transactions involving 15 U.S.C. 80a–39; and section 211 of the 200, subparts C and M. financial instruments that are Investment Advisers Act of 1940, 15 § 4401.102 Prohibited and restricted derivatives of securities (that is, the U.S.C. 80b–11. financial interests and transactions. value of the security depends on or is derived from, in whole or in part, the (a) Applicability. The requirements of List of Subjects value of another security, or a group, or this section apply to all securities an index of securities), except that this 5 CFR Part 4401 holdings or transactions effected, prohibition does not apply to Administrative practice and directly or indirectly, by or on behalf of transactions in shares in a registered procedure, Conduct and Ethics. a member or employee, the member’s or investment company or other publicly employee’s spouse, the member’s or 17 CFR Part 200 traded or publicly available collective employee’s unemancipated minor child, investment fund; and Administrative practice and or any person for whom the member or (7) Purchasing or selling any security procedure, Authority delegations employee serves as legal guardian. A (Government Agencies), Conduct and issued by an entity that is: member or employee is deemed to have (i) Under investigation by the Ethics, Information and Requests, and sufficient interest in the securities Organization. Commission; holdings and transactions of his or her (ii) A party to a proceeding before the ■ For the reasons set out in the spouse, unemancipated minor child, or Commission; or preamble, Title 5 of the Code of Federal person for whom the member or (iii) A party to a proceeding to which Regulations and Title 17, Chapter II, employee serves as legal guardian that the Commission is a party. Part 200, are amended as follows: such holdings or transactions are subject (d) Prior clearance of transactions in to all the terms of this part. TITLE 5—ADMINISTRATIVE securities or related financial interests. PERSONNEL (b) In general. (1) Except as set forth in paragraph (g) (1) Members and employees are of this section, members and employees ■ 1. Add a new chapter XXXIV, prohibited from purchasing or selling must confirm before entering into any consisting of part 4401 to read as any security while in possession of security or other related financial follows: material nonpublic information transaction that the security or related CHAPTER XXXIV—SECURITIES AND regarding that security. Nonpublic financial transaction is not prohibited or EXCHANGE COMMISSION information has the meaning as restricted as to them by clearing the provided in 5 CFR 2635.703(b). transaction in the manner required by PART 4401—SUPPLEMENTAL (2) Members and employees are the Designated Agency Ethics Official STANDARDS OF ETHICAL CONDUCT prohibited from recommending or (‘‘DAEO’’). A member or employee will FOR MEMBERS AND EMPLOYEES OF suggesting to any person the purchase or have five business days after clearance THE SECURITIES AND EXCHANGE sale of security: to effect a transaction. COMMISSION (i) Based on material nonpublic (2) Documentation of the clearance of information regarding that security; or Sec. any transaction pursuant to this 4401.101 General. (ii) That the member or employee paragraph (d) shall be prima facie 4401.102 Prohibited and restricted financial could not purchase or sell because of evidence that the member or employee interests and transactions. the restrictions contained in this Rule. has not knowingly purchased, sold, or 4401.103 Outside employment and (c) Prohibited and restricted holdings held such financial interest in violation activities. and transactions. Members and of the provisions of paragraphs (c)(1), Authority: 5 U.S.C. 7301; 5 U.S.C. App. employees are prohibited from: (2), (6), or (7) of this section. (Ethics in Government Act of 1978); E.O. (1) Knowingly purchasing or holding (3) The DAEO shall be responsible for 12674, 54 FR 15159; 3 CFR 1989 Comp., p. a security or other financial interest in administering the Commission’s

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clearance systems. The DAEO shall (ii) Securities holdings and application of the rule would cause an maintain a record of securities that transactions of a member’s or undue hardship. A member requests a members and employees may not employee’s legally separated spouse waiver by submitting a confidential purchase or sell, or otherwise hold, living apart from the member or written application to the Commission’s because such securities are the subject employee (including those effected for Office of the General Counsel’s Ethics of the various prohibitions and the benefit of the member’s or Office. The DAEO will review the restrictions contained in this section. employee’s minor child), provided that request and provide to the Commission (e) Holding periods for securities and the member or employee has no control, a recommendation for resolution of the related financial interests. and does not, in fact, control, advise waiver request. In developing a (1) General rule. Except as set forth in with respect to, or have knowledge of recommendation, the DAEO may paragraph (g) and in paragraphs (e)(2) those holdings and transactions; consult, on a confidential basis, other and (3) of this section, members and (iii) Securities issued by the United Commission personnel as the DAEO in employees must hold a security States Government or one of its his or her discretion considers purchased after commencement of agencies; necessary. employment with the Commission for a (iv) Investments in funds (2) Employees may request from the minimum of six (6) months from the administered by the Thrift Savings Plan DAEO a waiver of the prohibitions or trade date. or by any retirement plan administered limitations that would otherwise apply (2) General exceptions. This holding by a Federal government agency; and to a securities holding or transaction on period does not apply to: (v) Certificates of deposit or other the grounds that application of the rule (i) Securities sold for ninety percent comparable instruments issued by would cause an undue hardship. An (90) or less of the original purchase depository institutions subject to employee requests a waiver by price; Federal regulation and Federal deposit (ii) Securities with an initial term of submitting a confidential written insurance. application to the Commission’s Office less than six (6) months that are held to (2) The following holdings and term; and of the General Counsel’s Ethics Office in transactions are exempt from the the manner prescribed by the DAEO. In (iii) Shares in money market funds, as requirements of paragraphs (c), (d), and defined in Rule 12d1–1(d)(2), 17 CFR considering a waiver request, the DAEO, (e), but these interests must be reported or his or her designee, may consult with 270.12d1–1(d)(2). in accordance with this paragraph (f) of (3) Exception for shares in registered the employee’s supervisors and other this section: investment companies. Members and Commission personnel as the DAEO in (i) The holdings of a trust in which employees must hold shares in his or her discretion considers the member or employee (or the registered investment companies for a necessary. member’s or employee’s spouse, the minimum of thirty (30) days from the (3) The Commission or the DAEO, as member’s or employee’s unemancipated purchase date. applicable, will provide written notice (f) Reporting requirements. minor child, or person for whom the of its determination of the waiver (1) Except as set forth in paragraph (g) member or employee serves as legal request to the requesting member or of this section, members and employees guardian) is: employee. (A) Solely a vested beneficiary of an must: (4) The Commission or the DAEO, as irrevocable trust; or (i) Report and certify all securities applicable, may condition the grant of a (B) Solely a vested beneficiary of a holdings according to the schedule waiver under this provision upon the revocable trust where the trust required by the DAEO; and agreement to certain undertakings (such instrument expressly directs the trustee (ii) Submit duplicate statements for as execution of a written statement of to make present, mandatory every account containing reportable disqualification) to avoid the distributions of trust income or securities to the DAEO according to appearance of misuse of position or loss principal; provided, the member or such procedures required by the DAEO. of impartiality, and to ensure employee did not create the trust, has (2) Members and employees must confidence in the impartiality and no power to control, and does not, in report all purchases, sales, acquisitions, objectivity of the Commission. The fact, control or advise with respect to or dispositions of securities within five Commission or DAEO, as applicable, the holdings and transactions of the (5) business days after receipt of shall note the existence of conditions on trust; confirmation of the transaction. the waiver and describe them in (3) Any person who receives a (ii) Acceptance or reinvestment of reasonable detail in the text of the conditional offer of employment from stock dividends on securities already waiver-request determination. the Commission must report all owned; securities holdings after acceptance of (iii) Exercise of a right to convert (5) The grant of a waiver requested that offer and before commencement of securities; and pursuant to this section must reflect the employment with the Commission on (iv) The acquisition of stock or the judgment that the waiver: the form prescribed by the Commission. acquisition or the exercise of employee (i) Is necessary to avoid an undue (g) Exceptions. stock options, or other comparable hardship; and, under the particular (1) The following transactions are instruments, received as compensation circumstances, application of the exempt from the requirements of from an issuer that is: prohibition or restriction is not paragraphs (c), (d), (e), and (f) of this (A) The member’s or employee’s necessary to avoid the appearance of section: former employer; or misuse of position or loss of (i) Securities transactions effected by (B) The present or former employer of impartiality, or otherwise necessary to a member’s or employee’s spouse on the member’s or employee’s spouse. ensure confidence in the impartiality behalf of an entity or person other than (h) Waivers. and objectivity of the Commission; the member or employee, the member’s (1) Members may request from the (ii) Is consistent with 18 U.S.C. 208 or employee’s spouse, the member’s or Commission a waiver of the (Acts affecting a personal financial employee’s unemancipated minor child, prohibitions or limitations that would interest), 5 CFR part 2635 (Standards of or any person for whom the member or otherwise apply to a securities holding ethical conduct for employees of the employee serves as legal guardian; or transaction on the grounds that executive branch), and 5 CFR part 2640

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(Interpretation, exemptions and waiver (3) Professional services means member’s ability to perform properly guidance concerning 18 U.S.C. 208); and practicing a profession as the term the member’s duties. Such outside (iii) Is not otherwise prohibited by ‘‘profession’’ is defined in 5 CFR employment or activity includes such law. 2636.305(b)(1). fiduciary relationships such as serving (6) The determination of the (4) DAEO is the Designated Agency as a trustee, executor or corporate Commission with respect to a member’s Ethics Official. director. request for a waiver is final and binding (b) Pro bono and community service. (d) Prior approval requirement. on the member. Subject to the prohibitions, restrictions (1) An employee, other than a member (7) The determination of the DAEO and requirements contained in law and or special government employee, must with respect to an employee’s request Federal regulations, including 18 U.S.C. obtain written approval before engaging for a waiver may be appealed to the 203 (Compensation to members of in any outside employment (whether or Commission, in accordance with the Congress, officers, and others in matters not for compensation). requirements of Rules 430 and 431 of affecting the Government), 205 (2) Requests for prior approval of the Commission’s Rule of Practice, 17 (Activities of officers and employees in outside employment shall be submitted CFR 201.430, 201.431. The claims against and other matters in writing to the appropriate agency determination of the DAEO or, if affecting the Government), and 208 designee and to the Commission’s Office appealed, the Commission, is final and (Acts affecting a personal financial of the General Counsel’s Ethics Office. binding on the employee. interest), 5 CFR part 2634 (Executive Agency designees include Division (8) Notwithstanding the grant of a branch financial disclosure), 5 CFR part Directors, Office Heads and Regional waiver, a member or employee remains 2635 (Standards of ethical conduct for Directors. subject to the disqualification employees of the executive branch), and (3) The request shall include, at a requirements of 5 CFR 2635.402 paragraph (c) of this section, employees minimum: (Disqualifying financial interests) and 5 are encouraged to participate in matters (i) The name and address of the CFR 2635.502 (Personal and business involving improvement to their prospective outside employer; relationships) with respect to communities, and, when qualified, to (ii) A description of the proposed transactions or holdings subject to the provide professional pro bono services. outside employment, including the waiver. (c) Prohibitions and restrictions on duties and services to be performed; (i) Required disposition of securities. outside employment and activities. (iii) The expected duration of the The DAEO is authorized to require (1) Prohibitions and restrictions on outside employment; disposition of securities acquired as a employees other than members. (iv) The fee or other compensation, if result of a violation of the provisions of (i) No employee may engage in any any, to be received by the Commission this section, whether unintentional or outside employment or activities that employee for the outside employment; not. The DAEO shall report repeated conflict with employment with the and violations to the Commission for Commission. (v) A statement that the employee will appropriate action. (ii) No employee shall engage in any disqualify himself or herself, if the outside employment, whether or not for request is approved, from participating § 4401.103 Outside employment and compensation, without prior approval, in particular matters that could directly activities. in accordance with paragraph (d) of this affect his outside employer during the (a) Definitions. As used in this section. period of the outside employment and, section: (iii) The Commission will not approve thereafter, from participating in (1) Employee is defined in 5 CFR the following kinds of employment or particular matters involving specific 2635.102(h) and includes employees activities: parties, consistent with 5 CFR 2635.502 and special government employees of (A) Employment with any entity (Personal and business relationships). the Commission. regulated by the Commission; (4) The employee shall submit an (2) Employment is defined broadly, as (B) Employment or any activity updated request for approval: any form of non-Federal employment or directly or indirectly related to the (i) Annually; business relationship, involving the issuance, purchase, sale, investment or (ii) Upon a significant change in the provision of personal services by the trading of securities or futures on nature or scope of the outside employee. It includes services as an securities or a group of securities, employment; or officer, director, employee, agent, except this prohibition does not apply (iii) Upon a significant change in the attorney, accountant, consultant, to securities holdings or transactions employee’s official position at the contractor, general partner, trustee, permitted by § 4401.102 of this subpart; Commission. teacher, writer, or speaker, but does not or (5) Approval shall be granted only include participation in the activities of (C) Employment otherwise involved upon a determination by both the a nonprofit charitable, religious, with the securities industry. agency designee and Designated Agency professional, civic, or public service (2) Prohibitions and restrictions on Ethics Officers (‘‘DAEO’’) or by the organization, unless such activities: members. Commission, on appeal, pursuant to (i) Involve serving as an officer or (i) Members of the Commission may paragraph (d)(6) of this section, that the director of the organization; engage in outside employment only to outside employment is not expected to (ii) Involve providing professional the extent permitted by Section 4(a) of involve conduct prohibited by law or services or advice to the organization; the Securities Exchange Act of 1934, 15 Federal regulation, including 5 CFR part (iii) Are for compensation, other than U.S.C. 78d(a). This provision does not 2635 (Standards of ethical conduct for reimbursement of expenses; or preclude members from engaging in employees of the executive branch), and (iv) Involve serving as an active permitted securities transactions. this part. participant (as defined in 5 CFR (ii) Notwithstanding the absence of a (6) An employee may appeal the 2635.502(b)(1)(v)) in a professional statutory prohibition, a member may not disapproval of a request to engage in organization whose interests may be engage in any outside employment or outside employment by the agency substantially affected by the activity, if such outside employment or designee or by the Commission’s Office Commission. activity would materially impair the of the General Counsel’s Ethics Office to

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the Commission in accordance with the employees should at all times abide by (e) A member or employee shall requirements of Commission Rules 430 the standards of ethical conduct for comply with the requirements of 5 CFR and 431 of the Commission’s Rules of employees of the executive branch part 2635, subpart D (Conflicting Practice, 17 CFR 201.430, 201.431. That (codified in 5 CFR part 2635); the financial requirements); appeal shall be submitted in writing to supplemental standards of ethical (f) A member or employee shall the Commission through the conduct for members and employees of comply with the requirements of 5 CFR Commission’s Office of the General the Securities and Exchange part 2635, subpart E (Impartiality). Counsel’s Ethics Office and shall Commission (codified in 5 CFR part (g) A member or employee shall explain why the employee believes that 4401); the standards of conduct set forth comply with the requirements of 5 CFR his or her request should be approved. in this subpart; the Canons of ethics for part 2635, subpart G (Misuse of (e) Employees are required to submit members of the Securities and Exchange position). proposed publications or prepared Commission (codified in subpart C of (h) No member or employee shall speeches relating to the Commission, or this part 200); and, in the case of a accept host-paid travel or the statutes or rules it administers, to person practicing a profession as reimbursement except as in accordance the Commission’s Office of the General defined in 5 CFR 2636.305(b)(1), the with the requirements of the Counsel’s Ethics Office for review, applicable professional ethical Supplemental standards of ethical pursuant to the Commission’s standards. conduct for members and employees of Regulation Concerning Conduct of ■ 5. § 200.735–3 is amended by: the Securities and Exchange Members and Employees and Former ■ a. Revising paragraph (a); Commission (codified at 5 CFR Members and Employees of the ■ b. Removing footnote 2 in paragraph 4401.103 (Outside Employment and Commission, 17 CFR 200.735–4 (b)(1); Activities)); 5 CFR part 2635, subpart H (Outside Employment and Activities). ■ c. Removing paragraphs (b)(2) through (Outside Activities); and 31 U.S.C. 353 Any such publication or speech must (b)(6) and footnotes 3 and 4 in and 41 CFR 304–1.1 (Acceptance of include the disclaimer prescribed in 17 paragraphs (b)(3)(vi) and (b)(6) payment from a non-Federal source for CFR 200.735–4(c). Employees who wish respectively; travel expenses). to engage in teaching, writing or ■ d. Redesignating paragraph (b)(7) as ■ 6. § 200.735–4 is amended by: speaking for compensation should paragraph (b)(2), removing footnote 5 in ■ a. Revising paragraph (a) and review the provisions of 5 CFR 2635.807 paragraph (b)(7)(i), redesignating removing footnote 8 to paragraph (a); (Teaching, Speaking, and Writing). footnote 6 in paragraph (b)(7)(iii) as ■ b. Removing paragraphs (b)(1) through (b)(4) and paragraphs (b)(6) through TITLE 17—COMMODITY AND footnote 1 and removing the words (b)(8); SECURITIES EXCHANGES ‘‘section 22(c) of the Public Utility Holding Company Act of 1935 (15 ■ c. Redesignating paragraph (b)(5) as PART 200—ORGANIZATION; U.S.C. 79y) and Rule 104 thereunder (17 paragraph (b); in redesignated paragraph CONDUCT AND ETHICS; AND CFR 250.104)’’ and removing the words (b), further redesginating paragraphs (i), INFORMATION AND REQUESTS ‘‘But see, section 171 of the (ii), and (iii) as paragraphs (b)(1), (2), Administrative Manual which and (3); and redesignating footnotes 9 Subpart M—Regulation Concerning authorizes the staff to divulge certain and 10 in newly designated paragraphs Conduct of Members and Employees nonpublic information with (b) introductory text and (b)(3) as and Former Members and Employees Commission approval (n. 5, supra).’’ footnotes 2 and 3 respectively and of the Commission from the newly redesignated footnote 2 removing the words ‘‘(See 17 CFR to newly redesignated paragraph (b)(2); 200.735–4(b)(7))’’ from newly ■ 2. The general authority citation for ■ e. Removing paragraphs (b)(8) through redesignated footnote 2; ■ part 200, subpart M is revised to read as (b)(12) and footnote 7 in paragraph d. Removing footnote 11; ■ follows: (b)(8); and e. Revising paragraph (c) and Authority: 15 U.S.C. 77s, 77sss, 78w, 80a– ■ f. Adding paragraphs (c), (d), (e), (f), removing footnotes 12, 13, and 14; ■ 37, 80b–11; E.O. 11222, 3 CFR, 1964–1965 (g), and (h). f. Removing paragraph (d); ■ g. Redesignating paragraph (e) as Comp., p. 36; 5 CFR 735.104; 5 CFR 2634; The revision and additions read as paragraph (d) and removing footnote 15 and 5 CFR 2635, unless otherwise noted. follows: in newly redesignated paragraph (d)(1) ■ 3. § 200.735–1 is amended as follows: § 200.735–3 General provisions. and adding new footnote 4 to newly ■ a. Revising § 200.735–1 to read as (a) A member or employee shall redesignated paragraph (d)(1); follows; and ■ h. In newly redesignated paragraph ■ b. Removing footnote 1. comply with the requirements of 5 CFR part 2635, subpart A (General (d)(1), removing the words ‘‘paragraph This revision reads as follows: provisions) and in particular with the (b)(5)’’ and, in their place, adding § 200.735–1 Purpose. provisions of 5 CFR 2635.101 (Basic ‘‘paragraph (b)’’, and revising newly obligations of public service); 2635.103 redesignated paragraph (d)(2)(ii); This subpart sets forth the standards ■ i. Redesignating paragraphs (f) and (g) of ethical conduct required of members, (Applicability to members of the uniformed services); and 2635.104 as paragraphs (g) and (h); employees and special Government ■ (Applicability to employees on detail). j. Adding new paragraphs (e) and (f); employees, and former members and ■ k. Removing footnote 16 in paragraph employees of the Securities and * * * * * (g) and the authority citation at the end Exchange Commission. (c) A member or employee shall of the section. ■ 4. § 200.735–2(b) is revised to read as comply with the requirements of 5 CFR The revisions and additions read as follows: part 2635, subpart B (Gifts from outside follows: sources). § 200.735–2 Policy. (d) A member or employee shall § 200.735–4 Outside employment and * * * * * comply with the requirements of 5 CFR activities. (b) For these reasons, members, part 2635, subpart C (Gifts between (a) Members and employees shall employees, and special Government employees). comply with the requirements of the

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Supplemental standards of ethical with the requirements of the § 200.735–6 Action in case of personal conduct for members and employees of Supplemental standards of ethical interest. the Securities and Exchange conduct for members and employees of Members and employees shall comply Commission (codified at 5 CFR the Securities and Exchange with the requirements of 5 CFR part 4401.103 (Outside employment and Commission (codified at 5 CFR 2640 (Interpretation, exemptions, and activities) and 5 CFR part 2635, subpart 4401.103 (Outside employment and waiver guidance concerning 18 U.S.C. H (Outside activities)). activities)); 5 CFR part 2635, subpart H 208 (Acts affecting a personal interest)). * * * * * (Outside Activities); and 31 U.S.C. 1353 ■ 9. § 200.735–7 is amended by: (c) If otherwise permitted by 18 U.S.C. and 41 CFR 304–1.1 (Acceptance of ■ (a) Revising 200.735–7; 203 and 205, the provisions of these payment from a non-Federal source for ■ (b) Removing footnote 19 in paragraph rules or of 5 CFR 4401.103 do not travel expenses). (c). preclude an employee from acting as (f)(1) With respect to seeking or The revision reads as follows: agent or attorney: negotiating outside employment, (1) For any Commission employee members and employees shall comply § 200.735–7 Negotiation for employment. who is sued or under investigation in with the requirements of the Members and employees shall comply connection with his or her official Supplemental standards of ethical with the requirements of 18 U.S.C. 208 duties; conduct for members and employees of (Acts affecting a personal interest) and (2) For any Commission employee the Securities and Exchange 5 CFR part 2635, subpart F (Seeking who is the subject of disciplinary, Commission (codified at 5 CFR other employment). See § 200.735– loyalty, or other personnel 4401.103 (Outside employment and 4(f)(2) of this subpart. administrative proceedings in activities)); 5 CFR part 2635, subpart F ■ 10. § 200.735–8 is amended as connection with those proceedings; or (Seeking other employment); 5 CFR part follows: (3) For any Commission employee 2635, subpart H (Outside activities). ■ a. Revising paragraph (a) and who raises claims or against whom (2) Members and employees should be removing footnotes 20 and 21 in allegations of wrongdoing are made aware that 18 U.S.C. 208 (Acts affecting paragraph (a); pursuant to the Commission’s Equal a personal interest) provides, among ■ b. Removing footnote 22 in paragraph Opportunity regulations, if such other things, that a member or employee (a)(4); representation is not inconsistent with is prohibited from participating ■ c. In paragraph (d)(1) removing the the faithful performance of the personally and substantially in any words ‘‘by paragraph (a)(1) of this employee’s duties. particular matter in which, to his or her section’’; 4 (d)(1) * * * knowledge, the member or employee, ■ d. In paragraph (d)(2) removing the (2) * * * his or her spouse, minor child, general words ‘‘under paragraph (a)(1) of this (ii) (A) A determination by the partner, organization of which the section’’; General Counsel that a proposed employee is an officer, director, trustee, ■ e. Redesignating footnote 23 in publication conforms to the general partner or employee, or any paragraph (d)(3) as footnote 5; and requirements of the rule will not involve person or organization with whom he or ■ f. Redesignating footnote 24 in adoption of, or concurrence in, the she is negotiating or has any paragraph (e) as footnote 6. views expressed. Therefore, such arrangement concerning prospective The revisions read as follows: publication or speech shall include at employment, has a financial interest. an appropriate place or in a footnote or This provision does not apply if the § 200.735–8 Practice by former members otherwise, the following disclaimer of employee has received a written and employees of the Commission. responsibility: determination by an authorized official (a) Members and employees and The Securities and Exchange that the financial interest is not so former members and employees shall Commission disclaims responsibility for substantial as to be deemed likely to comply with the requirements of 18 any private publication or statement of affect the integrity of the employee’s U.S.C. 207 and 5 CFR part 2641 (Post any SEC employee or Commissioner. government service. employment conflict of interest This [article, outline, speech, chapter] (3) Members may follow the restrictions). Members and employees expresses the author’s views and does procedural provision contained in Part and former members and employees not necessarily reflect those of the V, Section 503 of the Executive Order should be aware that, among other Commission, the [other] Commissioners, 11222. restrictions, 18 U.S.C. 207 generally or [other] members of the staff. * * * * * prohibits a former member or employee (B) In appropriate cases, the above from knowingly communicating to or disclaimer may be modified by the ■ 7. § 200.735–5 is amended by: appearing before a Federal agency with General Counsel or the Commission to ■ a. Revising § 200.735–5; and the intent to influence a particular reflect the circumstances of an ■ b. Removing footnote 17 in paragraph matter involving specific parties in individual case. In addition, any (b)(1)(ii). which that person personally and publication or speech that reflects The revision reads as follows: substantially participated while at the positions taken by the Commission shall Commission. set forth those positions accurately and, § 200.735.5 Securities transactions. * * * * * if it contains differences with Securities transactions by members ■ Commission positions, it shall clearly and employees must comply with the 11. § 200.735–9 is revised to read as state that such positions are those of the provisions of 5 CFR 4401.102 follows: employee. (Prohibited and restricted financial § 200.735–9 Indebtedness. (e) With respect to host-paid travel, interests and transactions). members and employees shall comply Members and employees shall comply ■ 8. § 200.735–6 is amended by: with the requirements of 5 CFR ■ (a) Revising § 200.735–6; and 4 This paragraph (d), requiring review of prepared 2635.809 (Just financial obligations). ■ ■ speeches or writings relating to the Commission (b) Removing footnote 18. 12. § 200.735–10 is revised to read as does not apply to teaching activities. The revision reads as follows: follows:

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§ 200.735–10 Miscellaneous statutory ■ e. Removing paragraph (j); CFR part 2634 (Executive branch provisions. ■ f. Redesignating paragraphs (k) financial disclosure). Each member and employee is through (l) as paragraph (f) through (g); * * * * * responsible for acquainting himself or ■ g. In newly redesignated paragraph herself with the statutory provisions (d), removing each time they appear the ■ 14. § 200.735–15(b), (e), and (f) are listed in 5 CFR 2635.902 (Related words ‘‘Director of Personnel or the amended by removing the words statutes). A violation of any of these Assistant Director of Personnel’’ and, in ‘‘Director of Personnel’’ and, in their provisions is deemed a violation of this their place, adding the words place, adding ‘‘Commission’s Office of subpart M. ‘‘Commission’s Office of the General the General Counsel’s Ethics Office’’. ■ Counsel’s Ethics Office’’; and 13. § 200.735–11 is amended as ■ follows: ■ h. In newly redesignated paragraph 15. § 200.735–17 is amended by ■ a. Revising paragraph (a) and (e), removing the words ‘‘paragraph (c)’’ removing the words ‘‘the Executive removing footnote 25 in paragraph (b); and in their place, adding the words Director, the Director of Personnel’’ and ■ b. Removing paragraphs (c) through ‘‘paragraph (a)’’; and removing the words adding, in their place, ‘‘the General (f); ‘‘Director of Personnel or the Assistant Counsel, the Designated Agency Ethics ■ c. Redesignating paragraph (g) as Director of Personnel’’ and, in their Official’’. paragraph (c), removing the words place, adding the words ‘‘Commission’s Dated: July 14, 2010. ‘‘paragraph (c)’’ and in their place, Office of the General Counsel’s Ethics By the Commission. adding the words ‘‘paragraph (a)’’ and Office’’. removing the words ‘‘Director of The revision reads as follows: Elizabeth M. Murphy, Personnel’’ and in their place, adding Secretary. § 200.735–11 Statement of employment the words ‘‘Commission’s Office of the Robert I. Cusick, General Counsel’s Ethics Office’’ in and financial interests. Director, Office of Government Ethics. newly redesignated paragraph (c); (a) Members and employees shall file ■ d. Redesignating paragraph (h) financial disclosure reports in [FR Doc. 2010–17658 Filed 7–19–10; 8:45 am] through (i) as paragraphs (d) through (e); accordance with the requirements of 5 BILLING CODE 8010–01–P

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Reader Aids Federal Register Vol. 75, No. 138 Tuesday, July 20, 2010

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JULY

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. 607...... 39443 Presidential Documents 2 CFR Executive orders and proclamations 741–6000 1703...... 39629 The United States Government Manual 741–6000 Ch. 58 ...... 41691 Proposed Rules: 902...... 39443 37...... 40756 Other Services 3186...... 39133 72...... 41404 Electronic and on-line services (voice) 741–6020 73...... 42000 3 CFR Privacy Act Compilation 741–6064 217...... 41405 Public Laws Update Service (numbers, dates, etc.) 741–6043 Proclamations: 430...... 41102 TTY for the deaf-and-hard-of-hearing 741–6086 8539...... 38905 431...... 41102, 41103 8540...... 38911 1023...... 38042 ELECTRONIC RESEARCH Executive Orders: World Wide Web 13546...... 39439 12 CFR Full text of the daily Federal Register, CFR and other publications Administrative Orders: Proposed Rules: is located at: http://www.gpoaccess.gov/nara/index.html Memorandum of June 615...... 39392 28, 2010 ...... 38387 1237...... 39462 Federal Register information and research tools, including Public Memorandum of June 1777...... 39462 Inspection List, indexes, and links to GPO Access are located at: 30, 2010 ...... 38913 l http://www.archives.gov/federal register Memorandum of July 14 CFR E-mail 13, 2010 ...... 41687 13...... 41968 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 25...... 38391 5 CFR an open e-mail service that provides subscribers with a digital 39 ...... 37990, 37991, 37994, form of the Federal Register Table of Contents. The digital form 4401...... 42270 37997, 38001, 38007, 38009, of the Federal Register Table of Contents includes HTML and Proposed Rules: 38011, 38014, 38017, 38019, PDF links to the full text of each document. 532...... 39460 38394, 38397, 38404, 39143, To join or leave, go to http://listserv.access.gpo.gov and select 39787, 39790, 39795, 39798, Online mailing list archives, FEDREGTOC-L, Join or leave the list 6 CFR 39801, 39803, 39804, 39811, (or change settings); then follow the instructions. Proposed Rules: 39814, 39818 PENS (Public Law Electronic Notification Service) is an e-mail 5...... 39144 47...... 41968 service that notifies subscribers of recently enacted laws. 71 ...... 38406, 39145, 39146, 7 CFR 39147, 39148, 39149, 40719, To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 41074, 41075, 41076, 41077, and select Join or leave the list (or change settings); then follow 205...... 38693 41983, 41984, 41985 the instructions. 301...... 41073 760...... 41365 91...... 41968, 41986 FEDREGTOC-L and PENS are mailing lists only. We cannot 800...... 41693 97...... 39150, 39152 respond to specific inquiries. 916...... 38696 121...... 39629 Reference questions. Send questions and comments about the 917...... 38696 217...... 41580 Federal Register system to: [email protected] 948...... 38698 234...... 41580 The Federal Register staff cannot interpret specific documents or 1413...... 41963 241...... 41580 regulations. 1430...... 41365 248...... 41580 Reminders. Effective January 1, 2009, the Reminders, including 1455...... 39135 250...... 41580 Rules Going Into Effect and Comments Due Next Week, no longer 4280...... 41695 291...... 41580 appear in the Reader Aids section of the Federal Register. This Proposed Rules: 298...... 41580 information can be found online at http://www.regulations.gov. 701...... 41389 385...... 41580 Proposed Rules: CFR Checklist. Effective January 1, 2009, the CFR Checklist no 1755...... 38042 39 ...... 38052, 38056, 38058, longer appears in the Federal Register. This information can be 1221...... 41392 38061, 38064, 38066, 38941, found online at http://bookstore.gpo.gov/. 1429...... 41397 38943, 38945, 38947, 38950, 9 CFR 38953, 38956, 39185, 39189, FEDERAL REGISTER PAGES AND DATE, JULY 102...... 40719 39192, 39472, 39863, 39869, 37975–38390...... 1 103...... 40719 40757, 41104 38391–38692...... 2 104...... 40719 71 ...... 38753, 41772, 41773, 38693–38914...... 6 108...... 40719 41774, 42012, 42014 38915–39132...... 7 112...... 40719 91...... 39196, 42015 113...... 40719 39133–39442...... 8 15 CFR 39443–39628...... 9 114...... 40719 39629–39786...... 12 116...... 40719 742...... 41078 39787–40718...... 13 124...... 40719 774...... 41078 40719–41072...... 14 Proposed Rules: 41073–41364...... 15 10 CFR 922...... 40759 41365–41690...... 16 9...... 41368 41691–41962...... 19 72...... 41369 16 CFR 41963–42278...... 20 431...... 37975 305...... 41696

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Proposed Rules: 38415, 38714, 38716, 38718, 501...... 38068 22...... 38689 1218...... 42017 38721, 38723, 38923, 38926, 503...... 38068 25...... 38689 39163, 39166, 39632, 39839, 745...... 38959 26...... 38683 17 CFR 40726, 41376, 41762, 41764, 31...... 38675 200...... 42270 41987 41 CFR 32...... 38675 275...... 41018 Proposed Rules: 102-5...... 41994 42...... 38675, 39414 Proposed Rules: 100...... 41119, 41789 Proposed Rules: 45...... 38675 16...... 41775 165...... 38754, 39197 102-38...... 40763 52 ...... 38675, 38683, 38684, 242...... 39626 38689, 39414 34 CFR 42 CFR 205...... 40714 18 CFR Proposed Rules: 423...... 38026 210...... 40714 Proposed Rules: 600...... 42190 447...... 38748 212...... 40712 410...... 41106 668...... 42190 457...... 38748 216...... 40716 682...... 42190 Proposed Rules: 232...... 40712 20 CFR 405...... 40040 252...... 40712, 40717 36 CFR 404...... 39154 409...... 40040 516...... 41093 416...... 39154 7...... 39168 410...... 40040 552...... 41093 418...... 41084 411...... 40040 3002...... 41097 37 CFR 413...... 40040 3007...... 41097 21 CFR Proposed Rules: 414...... 40040 3009...... 41097 3016...... 41097 522...... 38699 386...... 39891 415...... 40040 3034...... 41097 573...... 41725 424...... 40040 38 CFR 3035...... 41097 814...... 41986 488...... 39641 3052...... 41097 1310...... 38915 3...... 39843, 41092 44 CFR Proposed Rules: 23 CFR 39 CFR 64...... 38749 901...... 38042 772...... 39820 111...... 41989 902...... 38042 3050...... 38725 45 CFR 903...... 38042 24 CFR 3055...... 38725 147...... 41726 904...... 38042 906...... 38042 5...... 41087 Proposed Rules: 301...... 38612 20...... 39475 302...... 38612 907...... 38042 84...... 41087 908...... 38042 85...... 41087 111...... 39477, 41790 303...... 38612 305...... 38612 909...... 38042 Proposed Rules: 3050...... 39200 308...... 38612 911...... 38042 3280...... 39871 3055...... 38757 614...... 40754 914...... 38042 40 CFR 26 CFR 1186...... 39133 915...... 38042 52 ...... 38023, 38745, 39366, Proposed Rules: 916...... 38042 1...... 38700 39633, 39635, 40726, 41312 160...... 40868 917...... 38042 53...... 38700 63...... 41991 164...... 40868 952...... 38042 54...... 38700, 41726 81...... 39635, 41379 301...... 38700 49 CFR 98...... 39736 47 CFR 602...... 38700 180 ...... 38417, 39450, 39455, 1...... 41932 39...... 38878 Proposed Rules: 40729, 40736, 40741, 40745, 64...... 39859 40...... 38422 54...... 41787 40751 73 ...... 41092, 41093, 41932 213...... 41282 237...... 41282 29 CFR 355...... 39852 90...... 41381 370...... 39852 101...... 41932 387...... 38423 2201...... 41370 Proposed Rules: Proposed Rules: Proposed Rules: 2550...... 41600 2...... 39094 1...... 38959, 41338 231...... 38432 2590...... 41726 52 ...... 38757, 40760, 40762, 22...... 38959 395...... 40765 4022...... 41091 42018 24...... 38959 611...... 39492 Proposed Rules: 63...... 42030 27...... 38959 1910...... 38646 80...... 42238 73...... 41123 50 CFR 1915...... 38646 81...... 41421, 42018 90...... 38959 622...... 39638 1917...... 38646 122...... 38068 101...... 38959 635...... 41995 1918...... 38646 123...... 38068 648 ...... 38935, 39170, 41996 1926...... 38646 141...... 40926 48 CFR 660 ...... 38030, 39178, 41383 1928...... 38646 142...... 40926 Ch. I...... 38674, 38691, 39414, 679 ...... 38430, 38936, 38937, 152...... 38958 39420 38938, 38939, 38940, 39183, 31 CFR 191...... 41421 2...... 38675, 38683 39638, 39639, 39861, 41999 Ch. V...... 38212 194...... 41421 4 ...... 38675, 38683, 38684, Proposed Rules: Proposed Rules: 257...... 41121 39414 16...... 38069 103...... 41788 261...... 41121 7...... 38683 17 ...... 38441, 42033, 42040, 264...... 41121 10...... 38683 42054, 42059 33 CFR 265...... 41121 12...... 39414 216...... 38070 100 ...... 38408, 38710, 39161, 268...... 41121 13...... 38683 300...... 38758 39445, 39448, 41373, 41987 271...... 41121 15...... 38675 679 ...... 38452, 38454, 39892, 117 ...... 38411, 38412, 38712 302...... 41121 18...... 38683 41123, 41424 165 ...... 38019, 38021, 38412, 403...... 38068 19...... 38687 680...... 39892

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