Vol. 76 Thursday, No. 189 September 29, 2011

Pages 60357–60700

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 76, No. 189

Thursday, September 29, 2011

Agency for Healthcare Research and Quality Antitrust Division NOTICES NOTICES Meetings: National Cooperative Research and Production Act of 1993: Health Services Research Initial Review Group Council for Advancement of Pyrethroid Human Risk Subcommittees, 60494 Assessment, LLC, 60530 Patient Safety Organizations: Plastic Aerosol Research Group, LLC, 60530 Voluntary Relinquishment from HPI–PSO, 60494–60495 Voluntary Relinquishment from Illinois PSO, 60495 Army Department Voluntary Relinquishment from The Patient Safety See Engineers Corps Group, 60495–60496 Centers for Disease Control and Prevention Agricultural Marketing Service NOTICES RULES Agency Information Collection Activities; Proposals, Decreased Assessment Rates: Submissions, and Approvals, 60496–60500 Pistachios Grown in California, Arizona, and New Carcinogen and Recommended Exposure Limit Policy Mexico, 60361–60363 Assessment, 60500 PROPOSED RULES Meetings: Revision of Cotton Futures Classification Procedures, Advisory Committee on Immunization Practices, 60500– 60388–60390 60501 Centers for Medicare & Medicaid Services Agricultural Research Service RULES PROPOSED RULES Exclusions from Medicare and Limitations on Medicare Modification of Interlibrary Loan Fee Schedule; Correction, Payment; CFR Correction, 60378 60395–60396 Coast Guard Agriculture Department PROPOSED RULES See Agricultural Marketing Service Inflatable Personal Flotation Devices, 60405–60412 See Agricultural Research Service NOTICES See Animal and Plant Health Inspection Service Amendment of Marine Safety Manual, Volume III, 60511– See Forest Service 60512 Commerce Department Alcohol and Tobacco Tax and Trade Bureau See Economic Development Administration NOTICES See Industry and Security Bureau Agency Information Collection Activities; Proposals, See National Oceanic and Atmospheric Administration Submissions, and Approvals, 60601–60602 See Patent and Trademark Office NOTICES Animal and Plant Health Inspection Service Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals, 60451–60452 Golden Nematode; Removal of Regulated Areas, 60357– 60358 Copyright Office, Library of Congress Gypsy Moth Generally Infested Areas: PROPOSED RULES Additions in Indiana, Maine, Ohio, Virginia, West Exemption to Prohibition on Circumvention of Copyright Virginia, and Wisconsin, 60358–60359 Protection Systems for Access Control Technologies, Phytosanitary Treatments: 60398–60405 Location of and Process for Updating Treatment Schedules, 60359–60361 Corporation for National and Community Service PROPOSED RULES NOTICES Irradiation Treatment; Location of Facilities in the Southern Meetings; Sunshine Act, 60455 United States, 60390–60395 NOTICES Defense Acquisition Regulations System Determination of Nonregulated Status for Altered Color NOTICES Roses Agency Information Collection Activities; Proposals, Florigene Pty., Ltd., 60447–60448 Submissions, and Approvals, 60474 Determination of Nonregulated Status for Lepidopteran- Commercial Item Handbook, 60474 Resistant Cotton: Syngenta Biotechnology, Inc., 60448–60449 Defense Department Pest Risk Analysis for the Importation of Fresh Tejocote See Defense Acquisition Regulations System Fruit from Mexico; Availability, 60449–60450 See Engineers Corps Pest Risk Analysis for the Importation of Pomegranate From NOTICES India; Availability, 60450 36(b)(1) Arms Sales, 60455–60473

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Performance Review Board; Membership, 60473–60474 PROPOSED RULES Airworthiness Directives: Economic Development Administration PIAGGIO AERO INDUSTRIES S.p.A. Airplanes, 60396– NOTICES 60398 Determination of Eligibility to Apply for Trade Adjustment NOTICES Assistance, 60452 Petitions for Exemption; Summaries of Petitions Received, 60582 Employment and Training Administration NOTICES Federal Communications Commission Agency Information Collection Activities; Proposals, RULES Submissions, and Approvals: Leased Commercial Access: Apprenticeship Programs, Labor Standards for Development of Competition and Diversity in Video Registration, 60534–60535 Programming Distribution and Carriage, 60652–60674 Tariffs; CFR Correction, 60378–60379 Energy Department PROPOSED RULES See Federal Energy Regulatory Commission Possible Revision or Elimination of Rules, 60413–60426 NOTICES Program Carriage Rules; Revision, 60675–60700 Loan Guarantees: Tonopah Solar Energy, LLC, for the Crescent Dunes Solar Federal Election Commission Energy Project, 60475–60477 NOTICES Meetings: Meetings; Sunshine Act, 60493–60494 Hydrogen and Fuel Cell Technical Advisory Committee, 60478 Federal Emergency Management Agency Records of Decision: NOTICES Texas Clean Energy Project, 60478–60488 Emergency and Related Determinations: New York, 60512–60513 Engineers Corps Puerto Rico, 60513–60514 NOTICES Virginia, 60512 Environmental Impact Statements; Availability, etc.: Emergency Declarations: Haile Gold Mine, Lancaster County, SC, 60474–60475 New York; Amendment No. 1, 60514 North Dakota; Amendment No. 6, 60514 Environmental Protection Agency Pennsylvania; Amendment No. 3, 60514 RULES Major Disaster and Related Determinations: Approval and Promulgation of Air Quality Implementation Connecticut, 60515 Plans: Iowa, 60515–60516 Cincinnati–Hamilton Nonattainment Area; Virginia, 60516 Determinations of Attainment of the 1997 Annual Major Disaster Declarations: Fine Particulate Standards, 60373–60376 Maine; Amendment No. 1, 60517–60518 Revisions to the California State Implementation Plan: Missouri; Amendment No. 3, 60518 Santa Barbara Air Pollution Control District, Sacramento New Hampshire; Amendment No. 4, 60516–60517 Municipal Air Quality Management District, etc., New York; Amendment No. 3, 60516 60376–60378 New York; Amendment No. 4, 60517 PROPOSED RULES Pennsylvania; Amendment No. 1, 60517 Revisions to the California State Implementation Plan: Texas; Amendment No. 5, 60518 Santa Barbara Air Pollution Control District, Sacramento Municipal Air Quality Management District, etc., Federal Energy Regulatory Commission 60405 NOTICES NOTICES Adequacy Status of Portions of the Huntington/Ashland License Applications: Submitted Annual Fine Particulate Matter Maintenance Pacific Green Power, LLC, 60488–60489 Plan, 60492 License Terminations: Proposed CERCLA Administrative Past Cost Recovery Lynn E. Stevenson, 60489–60490 Settlement, 60493 Preliminary Permit Applications: Settlement Agreements for Recovery of Past Response Mona North Pumped Storage Project, 60490–60491 Costs: Mona South Pumped Storage Project, 60491 Granite Timber Post and Pole Site, Philipsburg, Granite Records Governing Off-the-Record Communications, 60491– County, MT, 60493 60492

Executive Office of the President Federal Highway Administration See Management and Budget Office NOTICES See Science and Technology Policy Office Buy America Waivers, 60582–60583 See Trade Representative, Office of United States Final Federal Agency Actions on Proposed Highway in Indiana, 60583–60584 Federal Aviation Administration RULES Federal Motor Carrier Safety Administration Airworthiness Directives: NOTICES Piper Aircraft, Inc. Airplanes, 60367–60370 Meetings; Sunshine Act, 60584

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Federal Railroad Administration Forest Service NOTICES NOTICES Petitions for Waivers of Compliance, 60584–60585 Environmental Impact Statements; Availability, etc.: Taos Ski Valley 2010 Master Development Plan – Phase 1 Projects; Correction, 60451 Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Savings and Health and Human Services Department Loan Holding Companies; Correction, 60494 See Agency for Healthcare Research and Quality See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services Federal Transit Administration See Food and Drug Administration NOTICES See National Institutes of Health Early Scoping: Southwest Corridor Plan, Portland, OR, 60585–60587 Homeland Security Department Environmental Impact Statements; Availability, etc.: See Coast Guard North Corridor Transit Project; Seattle, WA, 60587–60590 See Federal Emergency Management Agency Proposed Circulars: See U.S. Customs and Border Protection Environmental Justice, 60590–60593 PROPOSED RULES Title VI, 60593–60599 Privacy Act; Systems of Records, 60385–60388 NOTICES Meetings: Fiscal Service Data Privacy and Integrity Advisory Committee, 60510– NOTICES 60511 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Annual Letters – Certificates of Authority and Admitted Industry and Security Bureau Reinsurer, 60602–60603 NOTICES Surety Companies Acceptable on Federal Bonds; Administrative Proceedings: Terminations: Bahram Maghazehe, 60452–60454 Minnesota Surety and Trust Co., 60603 Interior Department See Fish and Wildlife Service Fish and Wildlife Service See Land Management Bureau RULES See National Park Service Hunting and Fishing; CFR Correction, 60379 See Reclamation Bureau PROPOSED RULES NOTICES Endangered and Threatened Wildlife and Plants: Privacy Act; Systems of Records, 60519–60522 90-Day Finding on a Petition to List the American Eel as Threatened, 60431–60444 NOTICES Internal Revenue Service Comprehensive Conservation Plan and Finding of No RULES Significant Impact for Environmental Assessment: Interest and Penalty Suspension Provisions Under Section Selawik National Wildlife Refuge, Kotzebue, AK, 60522– 6404(g) of the Internal Revenue Code, 60373 60523 Justice Department See Antitrust Division Food and Drug Administration See Foreign Claims Settlement Commission NOTICES See Justice Programs Office Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Lodgings of Consent Decrees under CERCLA, 60529–60530 Prescription Drug Marketing Act of 1987; Administrative Procedures, Policies, and Requirements, 60501– Justice Programs Office 60503 NOTICES Guidance for Industry; Availability: National Institute of Justice Interview Room Recording Target Animal Safety and Effectiveness Protocol Systems and License Plate Readers Workshops, 60531 Development and Submission, 60503–60504 Time and Extent Applications for Nonprescription Drug Products, 60504–60505 Labor Department Meetings: See Employment and Training Administration Center for Drug Evaluation and Research, Approach to See Occupational Safety and Health Administration Addressing Drug Shortage; Public Workshop, 60505 NOTICES Food Defense Workshop, 60505–60506 Agency Information Collection Activities; Proposals, Vaccines and Biological Products Advisory Committee; Submissions, and Approvals: Selection Process and Nominations, 60506–60507 Employee Retirement Income Security Act Prohibited Transaction Exemption, 60531–60532 Miners Claim for Benefits Under the Black Lung Benefits Foreign Claims Settlement Commission Act and Employment History, 60532–60533 NOTICES Representative Payee Report, Short Form, Physician’s/ Meetings; Sunshine Act, 60530 Medical Officer’s Statement, 60533–60534

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Land Management Bureau NOTICES NOTICES Meetings: Environmental Assessments; Availability, etc.: Advisory Committee to the U.S. Section of the Federal Coal Lease Applications in Haskell and LeFlore International Commission for the Conservation of Counties, OK; Correction, 60524 Atlantic Tunas, 60454 Realty Actions: Recreation and Public Purposes Act Classification and National Park Service Conveyance of Public Land in Emery County, UT, NOTICES 60524–60525 Environmental Impact Statements; Availability, etc.: Isle Royale National Park, MI, 60525–60526 Library of Congress Meetings: See Copyright Office, Library of Congress National Park System Advisory Board, 60526–60527 Nuclear Regulatory Commission Management and Budget Office NOTICES RULES Agency Information Collection Activities; Proposals, Federal Regulations: Submissions, and Approvals, 60556–60557 OFPP Policy Letters, and CASB Cost Accounting Closure Of The U.S. Nuclear Regulatory Commissions Two Standards Included in the Semiannual Agenda of White Flint North Building Entrance, 60557 Federal Activities, 60357 Environmental Assessment and Finding of No Significant Impact: Millennium Challenge Corporation Westinghouse Electric Company, LLC, Hematite NOTICES Decommissioning Project, Hematite, MO, 60557– Quarterly Report, 60536–60555 60559

National Aeronautics and Space Administration Occupational Safety and Health Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Request for Nominations: Submissions, and Approvals, 60555–60556 Federal Advisory Council on Occupational Safety and Health, 60535–60536 National Credit Union Administration RULES Office of Management and Budget Net Worth and Equity Ratio, 60364–60367 See Management and Budget Office Office of United States Trade Representative National Highway Traffic Safety Administration See Trade Representative, Office of United States NOTICES Agency Information Collection Activities; Proposals, Overseas Private Investment Corporation Submissions, and Approvals, 60599 NOTICES Meetings; Sunshine Act, 60559 National Institutes of Health NOTICES Patent and Trademark Office Meetings: NOTICES Center for Scientific Review, 60507–60509 Agency Information Collection Activities; Proposals, National Institute of Allergy and Infectious Diseases, Submissions, and Approvals, 60454–60455 60509–60510 National Institute of Diabetes and Digestive and Kidney Postal Regulatory Commission Diseases, 60507 NOTICES National Institute of Mental Health, 60508 Post Office Closings, 60559–60564 National Institute of Nursing Research, 60508 Prospective Grants of Exclusive Licenses: Public Debt Bureau Compositions and Method for Preventing Reactogenicity See Fiscal Service Associated with Administration of Immunogenic Live Rotavirus Compositions, 60510 Railroad Retirement Board RULES National Oceanic and Atmospheric Administration Application for Annuity or Lump Sum, 60372–60373 RULES Fisheries of the Northeastern United States: Reclamation Bureau Atlantic Deep-Sea Red Crab; Amendment 3, 60379–60384 NOTICES Magnuson–Stevens Fishery Conservation and Management Status Report of Water Service, Repayment, and Other Act Provisions; Fisheries of Northeastern United States: Water-Related Contract Actions, 60527–60529 Annual Catch Limits and Accountability Measures, 60606–60650 Science and Technology Policy Office PROPOSED RULES NOTICES Fisheries of the Caribbean, Gulf of Mexico, and South Meetings: Atlantic: President’s Council of Advisors on Science and Coastal Migratory Pelagic Resources in Gulf of Mexico Technology, Working Group on Advanced and Atlantic Region; Amendment 18, 60444–60446 Manufacturing, 60564–60565

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Securities and Exchange Commission See Surface Transportation Board RULES PROPOSED RULES Consolidation of the Office of the Executive Director with Nondiscrimination on the Basis of Disability: the Office of the Chief Operating Officer, 60370–60372 Programs or Activities Receiving Federal Financial NOTICES Assistance (U.S. Airports), 60426–60431 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 60565–60566 Treasury Department Self-Regulatory Organizations; Proposed Rule Changes: See Alcohol and Tobacco Tax and Trade Bureau Financial Industry Regulatory Authority, Inc., 60567– See Fiscal Service 60569 See Internal Revenue Service International Securities Exchange, Inc., 60574–60576 NOTICES NASDAQ OMX BX, Inc., 60569–60572 Agency Information Collection Activities; Proposals, NASDAQ OMX PHLX LLC, 60566–60567 Submissions, and Approvals, 60600 Options Clearing Corp., 60572–60574 Agency Information Collection Activities; Proposals, Submissions, and Approvals: State Department Supplemental Quarterly Report (Small Business Lending NOTICES Fund), 60600–60601 Bureau of Educational and Cultural Affairs Request for Grant Proposals; Global Undergraduate Exchange U.S. Customs and Border Protection Program: NOTICES Serbia and Montenegro, 60576–60581 Discontinuation of H–2A and H–2B Temporary Worker Visa Meetings: Exit Program Pilot, 60518–60519 Advisory Panel to the U.S. Section of the North Pacific Anadromous Fish Commission, 60581–60582 Separate Parts In This Issue Surface Transportation Board NOTICES Part II Exemptions: Commerce Department, National Oceanic and Atmospheric Boston and Maine Corp. and Springfield Terminal Administration, 60606–60650 Railway Co., Rockingham, NH, 60599–60600 Part III Trade Representative, Office of United States Federal Communications Commission, 60652–60700 NOTICES Meetings: Industry Trade Advisory Committee on Small and Reader Aids Minority Business, 60582 Consult the Reader Aids section at the end of this page for Transportation Department phone numbers, online resources, finding aids, reminders, See Federal Aviation Administration and notice of recently enacted public laws. See Federal Highway Administration To subscribe to the Federal Register Table of Contents See Federal Motor Carrier Safety Administration LISTSERV electronic mailing list, go to http:// See Federal Railroad Administration listserv.access.gpo.gov and select Online mailing list See Federal Transit Administration archives, FEDREGTOC-L, Join or leave the list (or change See National Highway Traffic Safety Administration 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 Chapter III...... 60357 6 CFR Proposed Rules: 5 (2 documents) ...... 60385, 60387 7 CFR 301 (2 documents) ...... 60357, 60358 305...... 60359 983...... 60361 Proposed Rules: 27...... 60388 305...... 60390 319...... 60390 505...... 60395 12 CFR 700...... 60364 701...... 60364 702...... 60364 725...... 60364 741...... 60364 14 CFR 39...... 60367 Proposed Rules: 39...... 60396 17 CFR 200...... 60370 201...... 60370 204...... 60370 20 CFR 217...... 60372 26 CFR 301...... 60373 37 CFR Proposed Rules: 201...... 60398 40 CFR 52 (2 documents) ...... 60373, 60376 Proposed Rules: 52...... 60405 42 CFR 411...... 60378 46 CFR Proposed Rules: 160...... 60405 47 CFR 0...... 60652 1...... 60652 61...... 60378 76...... 60652 Proposed Rules: Chapter I...... 60413 76...... 60675 48 CFR Chapter 1...... 60357 49 CFR Proposed Rules: 27...... 60426 50 CFR 32...... 60379 648 (2 documents) ...... 60379, 60606 Proposed Rules: 17...... 60431 622...... 60444

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Rules and Regulations Federal Register Vol. 76, No. 189

Thursday, September 29, 2011

This section of the FEDERAL REGISTER assignment, and allocation of costs to • Federal eRulemaking Portal: Go to contains regulatory documents having general contracts with the United States http://www.regulations.gov/ applicability and legal effect, most of which Government. #!documentDetail;D=APHIS-2011-0036- are keyed to and codified in the Code of For purposes of this agenda, we have 0001. Federal Regulations, which is published under excluded directives that outline • Postal Mail/Commercial Delivery: 50 titles pursuant to 44 U.S.C. 1510. procedures to be followed in connection Send your comment to Docket No. The Code of Federal Regulations is sold by with the President’s budget and APHIS–2011–0036, Regulatory Analysis the Superintendent of Documents. Prices of legislative programs and directives that and Development, PPD, APHIS, Station new books are listed in the first FEDERAL affect only the internal functions, 3A–03.8, 4700 River Road Unit 118, REGISTER issue of each week. management, or personnel of Federal Riverdale, MD 20737–1238. agencies. Supporting documents and any FOR FURTHER INFORMATION CONTACT: See comments we receive on this docket OFFICE OF MANAGEMENT AND agency person listed for each entry in may be viewed at http:// BUDGET the agenda, c/o Office of Management www.regulations.gov/ #!docketDetail;D=APHIS-2011-0036 or 5 CFR Ch. III and 48 CFR Ch. 1 and Budget, Washington, DC 20503. On the overall agenda, contact Kevin F. in our reading room, which is located in room 1141 of the USDA South Building, Federal Regulations; OMB Circulars, Neyland, (202) 395–5897, at the above 14th Street and Independence Avenue, OFPP Policy Letters, and CASB Cost address. SW., Washington, DC. Normal reading Accounting Standards Included in the Kevin F. Neyland, room hours are 8 a.m. to 4:30 p.m., Semiannual Agenda of Federal Deputy Administrator, Office of Information Monday through Friday, except Activities and Regulatory Affairs. holidays. To be sure someone is there to AGENCY: Office of Management and [FR Doc. 2011–24712 Filed 9–28–11; 8:45 am] help you, please call (202) 690–2817 Budget. BILLING CODE P before coming. ACTION: Semiannual regulatory agenda. FOR FURTHER INFORMATION CONTACT: Mr. Jonathan M. Jones, National Program SUMMARY: The Office of Management DEPARTMENT OF AGRICULTURE Manager, Emergency and Domestic and Budget (OMB) is publishing its Programs, Plant Protection and semiannual agenda of upcoming Animal and Plant Health Inspection Quarantine, APHIS, 4700 River Road activities for Federal regulations, OMB Service Unit 137, Riverdale, MD 20737; (301) Circulars, Office of Federal Procurement 734–5038. Policy (OFPP) Policy Letters, and Cost 7 CFR Part 301 SUPPLEMENTARY INFORMATION: Accounting Standards Board (CASB) [Docket No. APHIS–2011–0036] Cost Accounting Standards. Background OMB Circulars and OFPP Policy Golden Nematode; Removal of The golden nematode (Globodera Letters are published in accordance Regulated Areas rostochiensis) is a destructive pest of with OMB’s internal procedures for potatoes and other solanaceous plants. AGENCY: implementing Executive Order No. Animal and Plant Health Potatoes cannot be economically grown 12866 (October 4, 1993, 58 FR 51735). Inspection Service, USDA. on land which contains large numbers OMB policy guidelines are issued under ACTION: Interim rule and request for of the nematode. The golden nematode authority derived from several sources comments. has been determined to occur in the including: Subtitles I, II, and V of Title United States only in parts of the State SUMMARY: We are amending the golden 31, United States Code; Executive Order nematode regulations by removing the of New York. No. 11541; and other specific authority In 7 CFR part 301, the golden townships of Elba and Byron in Genesee as cited. OMB Circulars and OFPP nematode quarantine regulations County, NY, from the list of generally Policy Letters communicate guidance (§§ 301.85 through 301.85–10, referred infested areas. Surveys have shown that and instructions of a continuing nature to below as the regulations) set out the fields in these two townships are to executive branch agencies. As such, procedures for determining the areas free of golden nematode, and we have most OMB Circulars and OFPP Policy regulated for golden nematode and determined that regulation of these Letters are not regulations. Nonetheless, impose restrictions on the interstate areas is no longer necessary. As a result because these issuances are typically of movement of regulated articles from of this action, all the areas in Genesee public interest, they are generally regulated areas. County, NY, that have been listed as published in the Federal Register in Paragraph (a) of § 301.85–2 states that generally infested will be removed from both proposed (for public comment) and the Deputy Administrator, Plant the list of areas regulated for golden final stages. For this reason, they are Protection and Quarantine, Animal and nematode. presented below in the standard format Plant Health Inspection Service of ‘‘prerule,’’ ‘‘proposed rule,’’ and DATES: This interim rule is effective (APHIS), shall list as regulated areas ‘‘final rule’’ stages. September 29, 2011. We will consider each quarantined State or each portion CASB Cost Accounting Standards are all comments that we receive on or thereof in which golden nematode has issued under authority derived from 41 before November 28, 2011. been found or in which there is reason U.S.C. 1501. Cost Accounting Standards ADDRESSES: You may submit comments to believe that golden nematode is are rules governing the measurement, by either of the following methods: present, or which it is deemed necessary

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to regulate because of their proximity to may be viewed on the Regulations.gov List of Subjects in 7 CFR Part 301 infestation or their inseparability for Web site (see ADDRESSES above for Agricultural commodities, Plant quarantine enforcement purposes from instructions for accessing diseases and pests, Quarantine, infested localities. The townships of Regulations.gov) or obtained from the Reporting and recordkeeping Elba and Byron in Genesee County, NY, person listed under FOR FURTHER requirements, Transportation. were regulated for golden nematode in INFORMATION CONTACT. 1977 on the basis of their proximity to Accordingly, we are amending 7 CFR This rule codifies a Federal Order part 301 as follows: and association with three fields in issued in December 2010, removing the Orleans County, NY, in which golden townships of Elba and Byron in Genesee PART 301—DOMESTIC QUARANTINE nematode was detected. County, NY, from the areas listed in NOTICES Paragraph (c) of § 301.85–2 states that, § 301.85–2a as regulated because of the in accordance with the criteria listed in golden nematode. These two townships ■ 1. The authority citation for part 301 § 301.85–2(a), the Deputy Administrator are the first areas removed from the continues to read as follows: shall terminate the designation of any golden nematode quarantine. area listed as a regulated area and Authority: 7 U.S.C. 7701–7772 and 7781– 7786; 7 CFR 2.22, 2.80, and 371.3. suppressive or generally infested area In 2007, there were 13 farms in when he or she determines that such Genesee County that harvested potatoes. Section 301.75–15 issued under Sec. 204, designation is no longer required. From These farms represented about 2 percent Title II, Public Law 106–113, 113 Stat. 1977 until 2010, potato production of such farms in New York, and 1501A–293; sections 301.75–15 and 301.75– comprised about 6 percent of the State’s 16 issued under Sec. 203, Title II, Public Law fields in the townships of Elba and 106–224, 114 Stat. 400 (7 U.S.C. 1421 note). Byron have had a sequence of surveys acres of harvested potatoes. New York with negative laboratory results for the farms that harvested potatoes in 2007 § 301.85–2a [Amended] represented about 6 percent of such detection of golden nematode. As a ■ 2. In § 301.85–2a, under the heading result, it is no longer necessary to farms in the United States and held about 2 percent of the U.S. acres of New York, in paragraph (1), the entry regulate these townships in Genesee for Genesee County is removed. County, NY, and restrict interstate harvested potatoes. movement of golden nematode Affected entities will benefit from no Done in Washington, DC, this 23rd day of regulated articles from these townships. longer needing to satisfy compliance September 2011. This is the first time APHIS has requirements of the quarantine. They Kevin Shea, removed an area that had been listed as are also expected to find improved Acting Administrator, Animal and Plant generally infested with golden export opportunities. While the potato Health Inspection Service. nematode from regulation. farms in the two townships qualify as [FR Doc. 2011–25088 Filed 9–28–11; 8:45 am] small entities, they are few in number BILLING CODE 3410–34–P Immediate Action and their share of the U.S. potato Immediate action is warranted to industry is minor. DEPARTMENT OF AGRICULTURE relieve restrictions that are no longer Under these circumstances, the necessary on two townships in Genesee Administrator of the Animal and Plant County, NY, that have been regulated Animal and Plant Health Inspection Health Inspection Service has Service for golden nematode. Under these determined that this action will not circumstances, the Administrator, have a significant economic impact on 7 CFR Part 301 APHIS, has determined that prior notice a substantial number of small entities. and opportunity for public comment are [Docket No. APHIS–2010–0075] contrary to the public interest and that Executive Order 12372 Gypsy Moth Generally Infested Areas; there is good cause under 5 U.S.C. 553 This program/activity is listed in the Additions in Indiana, Maine, Ohio, for making this action effective less than Catalog of Federal Domestic Assistance Virginia, West Virginia, and Wisconsin 30 days after publication in the Federal under No. 10.025 and is subject to Register. Executive Order 12372, which requires AGENCY: We will consider comments we Animal and Plant Health intergovernmental consultation with receive during the comment period for Inspection Service, USDA. State and local officials. (See 7 CFR part this interim rule (see DATES above). ACTION: Affirmation of interim rule as 3015, subpart V.) After the comment period closes, we final rule. will publish another document in the Executive Order 12988 SUMMARY: We are adopting as a final Federal Register. The document will rule, without change, an interim rule include a discussion of any comments This rule has been reviewed under Executive Order 12988, Civil Justice that amended the regulations to add we receive and any amendments we are areas in Indiana, Maine, Ohio, Virginia, making to the rule. Reform. This rule: (1) Preempts all State and local laws and regulations that are West Virginia, and Wisconsin to the list Executive Order 12866 and Regulatory inconsistent with this rule; (2) has no of generally infested areas based on the Flexibility Act retroactive effect; and (3) does not detection of infestations of gypsy moth This interim rule is subject to require administrative proceedings in those areas. The interim rule was Executive Order 12866. However, for before parties may file suit in court necessary to prevent the artificial spread this action, the Office of Management challenging this rule. of the gypsy moth to noninfested areas of the United States. and Budget has waived its review under Paperwork Reduction Act Executive Order 12866. DATES: Effective on September 29, 2011, In accordance with the Regulatory This rule contains no new we are adopting as a final rule the Flexibility Act, we have analyzed the information collection or recordkeeping interim rule published at 76 FR 21613– potential economic effects of this action requirements under the Paperwork 21615 on April 18, 2011. on small entities. The analysis is Reduction Act of 1995 (44 U.S.C. 3501 FOR FURTHER INFORMATION CONTACT: Ms. summarized below. The full analysis et seq.). Julie S. Spaulding, Forest Pest Programs

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Manager, Emergency and Domestic Done in Washington, DC, this 23rd day of Background Programs, Plant Protection and September 2011. Quarantine, APHIS, 4700 River Road Kevin Shea, In a final rule that was published in the Federal Register on January 26, Unit 137, Riverdale, MD 20737; (301) Acting Administrator, Animal and Plant 734–5332. Health Inspection Service. 2010 (75 FR 4228–4253, Docket No. APHIS–2008–0022), and effective on [FR Doc. 2011–25089 Filed 9–28–11; 8:45 am] SUPPLEMENTARY INFORMATION: February 25, 2010, we amended the BILLING CODE 3410–34–P phytosanitary treatment regulations in 7 Background CFR part 305 by removing the lists of The gypsy moth, Lymantria dispar DEPARTMENT OF AGRICULTURE approved treatments and treatment (Linnaeus), is a destructive pest of schedules from the regulations, while forest, shade, and commercial trees such Animal and Plant Health Inspection retaining the general requirements for as nursery stock and Christmas trees. Service performing treatments and certifying or The gypsy moth regulations (contained approving treatment facilities. The final in 7 CFR 301.45 through 301.45–12 and 7 CFR Part 305 rule also removed treatment schedules referred to below as the regulations) from other places where they had been restrict the interstate movement of [Docket No. APHIS–2008–0022] found in 7 CFR chapter III. regulated articles from generally We replaced the lists of approved infested areas to prevent the artificial RIN 0579–AC94 treatments that had been in § 305.2 with spread of the gypsy moth. Section a general statement in paragraph (b) of 301.45–3 of the regulations lists Phytosanitary Treatments; Location of that section that approved treatment generally infested areas. and Process for Updating Treatment schedules are set out in the Plant Protection and Quarantine (PPQ) In an interim rule 1 effective and Schedules; Technical Amendment Treatment Manual. Paragraph (b) went published in the Federal Register on AGENCY: Animal and Plant Health on to state that treatments may only be April 18, 2011 (76 FR 21613–21615, Inspection Service, USDA. administered in accordance with the Docket No. APHIS–2010–0075), we treatment requirements of part 305 and amended § 301.45–3(a) by adding ACTION: Final rule; technical amendment. in accordance with treatment schedules portions of Indiana, Maine, Ohio, found in the PPQ Treatment Manual. Virginia, West Virginia, and Wisconsin We also amended the general to the list of generally infested areas. SUMMARY: In a final rule that was published in the Federal Register on requirements for performing treatments Comments on the interim rule were January 26, 2010, and effective on and certifying or approving treatment required to be received on or before June February 25, 2010, we amended the facilities to indicate that such facilities 17, 2011. We received one comment phytosanitary treatment regulations by need to be able to conduct the from a State agricultural agency that was removing the lists of approved treatments in the PPQ Treatment in favor of this action. Therefore, for the treatments and treatment schedules Manual. reasons given in the interim rule, we are from the regulations, while retaining the However, while the PPQ Treatment adopting the interim rule as a final rule general requirements for performing Manual contains only approved without change. treatments and certifying or approving treatment schedules, it is inappropriate This action also affirms the treatment facilities. The final rule also to refer to the PPQ Treatment Manual as information contained in the interim removed treatment schedules from other the sole place where approved treatment rule concerning Executive Order 12866 places where they had been found in schedules may be found and to set and the Regulatory Flexibility Act, APHIS regulations and provided that requirements for treatment facilities Executive Orders 12372 and 12988, and approved treatment schedules will based only on the treatments in the PPQ the Paperwork Reduction Act. instead be found in the Plant Protection Treatment Manual. A treatment Further, for this action the Office of and Quarantine Treatment Manual, schedule is ultimately approved for use Management and Budget has waived its which is available on the Internet. In the not by dint of its inclusion in the PPQ review under Executive Order 12866. final rule, we neglected to provide for Treatment Manual but because the the Administrator of the Animal and Administrator of the Animal and Plant List of Subjects in 7 CFR Part 301 Plant Health Inspection Service to Health Inspection Service has decided approve treatments that are not found in that the treatment schedule is effective Agricultural commodities, Plant the Treatment Manual, and we did not at neutralizing the targeted plant pest. diseases and pests, Quarantine, retain text explaining that irradiation Ultimately, the regulations should refer Reporting and recordkeeping can be used as a substitute for other to approval by the Administrator as the requirements, Transportation. treatments. In this amendment, we are standard for use of a treatment schedule. amending the regulation to provide for Therefore, we are amending PART 301—DOMESTIC QUARANTINE such approval of treatments and to NOTICES paragraph (b) of § 305.2 to indicate that restore the text we removed. treatments may only be administered in accordance with the requirements of ■ Accordingly, we are adopting as a DATES: Effective Date: September 29, part 305 and in accordance with final rule, without change, the interim 2011. treatment schedules approved by the rule that amended 7 CFR part 301 and FOR FURTHER INFORMATION CONTACT: Dr. Administrator as effective at that was published at 76 FR 21613– Inder P. S. Gadh, Senior Risk Manager— neutralizing quarantine pests. We are 21615 on April 18, 2011. Treatments, Regulations, Permits, and also amending paragraph (b) to Manuals, PPQ, APHIS, 4700 River Road explicitly indicate that the treatment 1 To view the interim rule and its supporting Unit 133, Riverdale, MD 20737–1236; schedules found in the PPQ Treatment economic analysis, go to http:// (301) 734–0627. www.regulations.gov/fdmspublic/component/ Manual have been approved by the main?main=DocketDetail&d=APHIS-2010-0075. SUPPLEMENTARY INFORMATION: Administrator.

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As the regulations in part 305 now As noted earlier, before the Authority: 7 U.S.C. 7701–7772 and 7781– indicate that treatment must be publication of the January 2010 final 7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, administered in accordance with rule, § 305.2 listed approved treatments 2.80, and 371.3. treatment schedules approved by the for various articles. Paragraph (h) of ■ 2. In § 305.1, in the definition of PPQ Administrator, it is appropriate to § 305.2 listed approved treatments for Treatment Manual, the first sentence is provide a means by which persons can fruits and vegetables. At the beginning revised to read as follows: request that the Administrator approve of the list, paragraph (h)(1) stated that other treatment schedules. Therefore, irradiation treatment in accordance with § 305.1 Definitions. we are adding a new paragraph (c) to part 305 could be substituted for other * * * * * § 305.2. This paragraph indicates that approved treatments for any pests for PPQ Treatment Manual. A document persons who wish to have a treatment which irradiation was an approved that contains treatment schedules that schedule approved by the Administrator treatment. For example, several fruits are approved by the Administrator for as effective at neutralizing a quarantine and vegetables may be treated with cold use under this part. * * * pest or pests may apply for approval by treatment to neutralize certain fruit flies; * * * * * submitting the treatment schedule, as irradiation is an approved treatment ■ 3. Section 305.2 is amended as along with any supporting information for fruit flies, irradiation for fruit flies in follows: and data, to the Animal and Plant accordance with part 305 may be ■ a. By revising paragraph (b) to read as Health Inspection Service, Plant substituted for cold treatment for those set forth below. Protection and Quarantine, Center for fruits and vegetables. ■ b. By redesignating paragraph (c) as Plant Health Science and Technology, We did not include this text in the paragraph (d). 1730 Varsity Drive, Suite 400, Raleigh, revised part 305; it is contained in the ■ c. By adding a new paragraph (c) to NC 27606–5202. Upon receipt of such PPQ Treatment Manual, thus confirming read as set forth below. an application, the Administrator will that substitution of irradiation for other § 305.2 Approved treatments. review the schedule and the supporting approved treatments has been approved information and data and respond with by the Administrator. However, since * * * * * (b) Treatments may only be approval or denial of the treatment the publication of the January 2010 final administered in accordance with the schedule. If the Administrator rule, there has been some confusion requirements of this part and in determines the treatment schedule to be among the regulated community accordance with treatment schedules of potential general use, the regarding our policy on substituting approved by the Administrator as Administrator may add the new irradiation for other approved effective at neutralizing quarantine treatment schedule to the PPQ treatments. Treatment Manual or revise an existing pests. The treatment schedules found in schedule, as appropriate, in accordance To address this confusion, we are the PPQ Treatment Manual have been with the process described in § 305.3. adding a new paragraph (o) to § 305.9, approved by the Administrator. which contains requirements for To accommodate this change, we are Treatment schedules may be added to performing irradiation treatment, that redesignating current paragraph (c) of the PPQ Treatment Manual in describes our policy on substituting § 305.2 as paragraph (d). We are also accordance with § 305.3. Treatment irradiation for other approved amending the definition of PPQ schedules may also be approved by the treatments. The new paragraph reads: Treatment Manual in § 305.1 to make it Administrator in accordance with ‘‘Treatment of fruits and vegetables that clear that all treatment schedules in the paragraph (c) of this section. are from foreign localities, from Hawaii, manual are approved by the (c) Persons who wish to have a Puerto Rico, and the U.S. Virgin Islands, Administrator, and we are amending the treatment schedule approved by the or from domestic areas under quarantine heading of § 305.3, which describes the Administrator as effective at with irradiation in accordance with this process for adding, revising, or neutralizing a quarantine pest or pests section may be substituted for other removing treatment schedules, to may apply for approval by submitting approved treatments if the target pests indicate that it specifically applies to the treatment schedule, along with any of the other approved treatments are the PPQ Treatment Manual. supporting information and data, to the approved for treatment with irradiation Animal and Plant Health Inspection These changes also necessitate in the PPQ Treatment Manual or changes in §§ 305.5 through 305.9, Service, Plant Protection and approved for treatment with irradiation Quarantine, Center for Plant Health which set out the requirements for in accordance with § 305.2.’’ administering chemical treatment, cold Science and Technology, 1730 Varsity treatment, quick freeze treatment, heat List of Subjects in 7 CFR Part 305 Drive, Suite 400, Raleigh, NC 27606– treatment, and irradiation treatment, 5202. Upon receipt of such an respectively. Where these sections have Agricultural commodities, Chemical application, the Administrator will referred to facilities capable of treatment, Cold treatment, Heat review the schedule and the supporting performing treatments in accordance treatment, Imports, Irradiation, information and data and respond with with treatment schedules in the PPQ Phytosanitary treatment, Plant diseases approval or denial of the treatment Treatment Manual, they now also refer and pests, Quarantine, Quick freeze, schedule. If the Administrator to performing treatments in accordance Reporting and recordkeeping determines the treatment schedule to be with treatment schedules approved in requirements, Transportation. of potential general use, the accordance with § 305.2. For other Accordingly, we are amending 7 CFR Administrator may add the new references to the PPQ Treatment Manual part 305 as follows: treatment schedule to the PPQ in those sections, we have added Treatment Manual or revise an existing references to treatment schedules PART 305—PHYTOSANITARY schedule, as appropriate, in accordance approved in accordance with § 305.2 as TREATMENTS with § 305.3. well. A complete list of these changes * * * * * can be found in the regulatory text at the ■ 1. The authority citation for part 305 ■ 4. In § 305.3, the section heading is end of this document. continues to read as follows: revised to read as follows:

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§ 305.3 Processes for adding, revising, or treatment schedule’’ after the word reasonable and necessary expenses of removing treatment schedules in the PPQ ‘‘Manual’’. the program. The production year Treatment Manual. ■ c. In paragraph (j)(2), by adding the begins September 1 and ends August 31. * * * * * words ‘‘or by another approved The assessment rate will remain in treatment schedule’’ after the word § 305.5 [Amended] effect indefinitely unless modified, ‘‘Manual’’. suspended, or terminated. ■ 5. Section 305.5 is amended as ■ d. In paragraph (n), by adding the DATES: Effective September 30, 2011. follows: words ‘‘or the plant pests for which Comments received by November 28, ■ a. In paragraph (a)(1), by adding the another treatment schedule is approved words ‘‘or in another treatment schedule 2011, will be considered prior to in accordance with § 305.2’’ after the issuance of a final rule. approved in accordance with § 305.2’’ word ‘‘Manual’’. after the word ‘‘Manual’’. ■ e. By adding a new paragraph (o) to ADDRESSES: Interested persons are ■ b. In paragraph (c)(1), in the first read as set forth below. invited to submit written comments sentence, by adding the words ‘‘or in concerning this rule. Comments must be another treatment schedule approved in § 305.9 Irradiation treatment requirements. sent to the Docket Clerk, Marketing accordance with § 305.2’’ after the word * * * * * Order Administration Branch, Fruit and ‘‘Manual’’; and, in the second sentence, (o) Substitution of irradiation for Vegetable Programs, AMS, USDA, 1400 by adding the words ‘‘or approved in other treatments. Treatment of fruits Independence Avenue, SW., STOP accordance with § 305.2’’ after the word and vegetables that are from foreign 0237, Washington, DC 20250–0237; Fax: ‘‘Manual’’. localities, from Hawaii, Puerto Rico, and (202) 720–8938; or Internet: http:// ■ c. In paragraph (c)(3), in the first the U.S. Virgin Islands, or from www.regulations.gov. Comments should sentence, by adding the words ‘‘or in domestic areas under quarantine with reference the document number and the another approved treatment schedule’’ irradiation in accordance with this date and page number of this issue of after the word ‘‘Manual’’. section may be substituted for other the Federal Register and will be approved treatments if the target pests available for public inspection in the § 305.6 [Amended] of the other approved treatments are Office of the Docket Clerk during regular ■ 6. Section 305.6 is amended as approved for treatment with irradiation business hours, or can be viewed at: follows: in the PPQ Treatment Manual or http://www.regulations.gov. All ■ a. In paragraph (a) introductory text, approved for treatment with irradiation comments submitted in response to this by adding the words ‘‘or in another in accordance with § 305.2. rule will be included in the record and treatment schedule approved in * * * * * will be made available to the public. accordance with § 305.2’’ after the word Please be advised that the identity of the Done in Washington, DC, this 23rd day of ‘‘Manual’’. individuals or entities submitting the ■ September 2011. b. In paragraph (c)(1), by adding the comments will be made public on the Kevin Shea, words ‘‘or in another approved Internet at the address provided above. treatment schedule’’ after the word Acting Administrator, Animal and Plant ‘‘Manual’’. Health Inspection Service. FOR FURTHER INFORMATION CONTACT: ■ c. In paragraph (d)(14), by adding the [FR Doc. 2011–25097 Filed 9–28–11; 8:45 am] Andrea Ricci, Marketing Specialist or words ‘‘or in accordance with another BILLING CODE 3410–34–P Kurt J. Kimmel, Regional Manager, approved treatment schedule’’ after the California Marketing Field Office, word ‘‘Manual’’. Marketing Order Administration ■ 7. Section 305.7 is amended as DEPARTMENT OF AGRICULTURE Branch, Fruit and Vegetable Programs, follows: AMS, USDA; Telephone: (559) 487– ■ a. In the second sentence, by removing Agricultural Marketing Service 5901, Fax: (559) 487–5906, or E-mail: the word ‘‘the’’ before the word ‘‘fruits’’. [email protected] or ■ b. By adding a new sentence at the 7 CFR Part 983 [email protected]. end of the section to read as set forth [Doc. No. AMS–FV–11–0077; FV–983–2 IR] Small businesses may request below. information on complying with this Pistachios Grown in California, regulation by contacting Laurel May, § 305.7 Quick freeze treatment Marketing Order Administration requirements. Arizona, and New Mexico; Decreased Assessment Rate Branch, Fruit and Vegetable Programs, * * * Requests to authorize quick AMS, USDA, 1400 Independence freeze as a treatment for other fruits and AGENCY: Agricultural Marketing Service, Avenue, SW., STOP 0237, Washington, vegetables may be made in accordance USDA. DC 20250–0237; Telephone: (202) 720– with § 305.2(c). ACTION: Interim rule with request for 2491, Fax: (202) 720–8938, or E-mail: § 305.8 [Amended] comments. [email protected]. ■ 8. In § 305.8, paragraph (a)(1) is SUMMARY: This rule decreases the SUPPLEMENTARY INFORMATION: This rule amended by adding the words ‘‘or in assessment rate established for the is issued under Marketing Agreement another treatment schedule approved in Administrative Committee for and Order No. 983, both as amended (7 accordance with § 305.2’’ after the word Pistachios (Committee) for the 2011–12 CFR part 983), regulating the handling ‘‘Manual’’. and subsequent production years from of pistachios grown in California, ■ 9. Section 305.9 is amended as $0.0007 to $0.0005 per pound of Arizona, and New Mexico hereinafter follows: assessed weight pistachios. The referred to as the ‘‘order.’’ The order is ■ a. In paragraph (d)(1), by adding the Committee locally administers the effective under the Agricultural words ‘‘or in another treatment schedule marketing order which regulates the Marketing Agreement Act of 1937, as approved in accordance with § 305.2’’ handling of pistachios grown in amended (7 U.S.C. 601–674), hereinafter after the word ‘‘Manual’’. California, Arizona, and New Mexico. referred to as the ‘‘Act.’’ ■ b. In paragraph (i), by adding the Assessments upon pistachio handlers The Department of Agriculture words ‘‘or in another approved are used by the Committee to fund (USDA) is issuing this rule in

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conformance with Executive Order upon recommendation and information to or during each production year to 12866. submitted by the Committee or other recommend a budget of expenses and This rule has been reviewed under information available to USDA. consider recommendations for Executive Order 12988, Civil Justice The Committee met on July 21, 2011, modification of the assessment rate. The Reform. Under the marketing order now and unanimously recommended 2011– dates and times of Committee meetings in effect, California, Arizona, and New 12 expenditures of $681,850 and an are available from the Committee or Mexico pistachio handlers are subject to assessment rate of $0.0005 per pound of USDA. Committee meetings are open to assessments. Funds to administer the pistachios. In comparison, last year’s the public and interested persons may order are derived from such budgeted expenditures were $803,400. express their views at these meetings. assessments. It is intended that the The assessment rate of $0.0005 is USDA will evaluate Committee assessment rate as issued herein will be $0.0002 lower than the rate currently in recommendations and other available applicable to all assessable pistachios effect. This action will allow the information to determine whether beginning September 1, 2011, and Committee to provide sufficient revenue modification of the assessment rate is continue until amended, suspended, or to meet its expenses while maintaining needed. Further rulemaking will be terminated. a financial reserve within the limit undertaken as necessary. The The Act provides that administrative authorized under the order. Committee’s 2011–12 budget and those proceedings must be exhausted before The major expenditures for subsequent production years will be parties may file suit in court. Under recommended by the Committee for the reviewed and, as appropriate, approved section 608c(15)(A) of the Act, any 2011–12 year include $115,850 for by USDA. handler subject to an order may file administrative expenses, $10,000 for with USDA a petition stating that the compliance expenses, $281,000 for Initial Regulatory Flexibility Analysis order, any provision of the order, or any salaries, $125,000 for research, and Pursuant to requirements set forth in obligation imposed in connection with $150,000 for a contingency fund. the Regulatory Flexibility Act (RFA) the order is not in accordance with law Budgeted expenses for these items in (5 U.S.C. 601–612), the Agricultural and request a modification of the order 2010–11 were $112,400 for Marketing Service (AMS) has or to be exempted therefrom. Such administrative expenses, $10,000 for considered the economic impact of this handler is afforded the opportunity for compliance expenses, and $281,000 for rule on small entities. Accordingly, a hearing on the petition. After the salaries, $250,000 for a new research AMS has prepared this initial regulatory hearing, USDA would rule on the and food quality line item budget and flexibility analysis. petition. The Act provides that the $150,000 for a contingency reserve. The purpose of the RFA is to fit district court of the United States in any The assessment rate recommended by regulatory actions to the scale of district in which the handler is an the Committee was derived by business subject to such actions in order inhabitant, or has his or her principal considering anticipated expenses and that small businesses will not be unduly place of business, has jurisdiction to production levels of pistachios grown in or disproportionately burdened. review USDA’s ruling on the petition, California, Arizona, and New Mexico, Marketing orders issued pursuant to the provided an action is filed not later than and additional pertinent factors. In its Act, and the rules issued thereunder, are 20 days after the date of the entry of the recommendation, the Committee unique in that they are brought about ruling. utilized an estimate of 400 million through group action of essentially This rule decreases the assessment pounds of assessable pistachios for the small entities acting on their own rate established for the Committee for 2011–12 production year. If realized, behalf. the 2011–12 and subsequent production this would provide estimated There are approximately 900 years from $0.0007 to $0.0005 per assessment revenue of $200,000. producers of pistachios in the pound of assessed weight pistachios. Additional anticipated revenue will be production area and approximately 25 The California, Arizona, and New provided by other sources, including the handlers subject to regulation under the Mexico pistachio marketing order financial reserve ($369,234), estimated marketing order. Small agricultural provides authority for the Committee, interest income ($2,000), and funds producers are defined by the Small with the approval of USDA, to formulate received from the California Pistachio Business Administration (13 CFR an annual budget of expenses and Research Board (CPRB) ($110,616). 121.201) as those having annual receipts collect assessments from handlers to When combined, revenue from these less than $750,000, and small administer the program. The members sources would be adequate to cover agricultural service firms are defined as of the Committee are producers and budgeted expenses. Any unexpended those whose annual receipts are less handlers of California, Arizona, and funds from the 2011–12 production year than $7,000,000. Based on Committee New Mexico pistachios. They are may be carried over to cover expenses data, it is estimated that over 70 percent familiar with the Committee’s needs and during the succeeding production year. of the handlers ship less than with the costs for goods and services in Funds in the reserve at the end of 2011– $7,000,000 worth of pistachios and their local area and are thus in a 12 production year are estimated to be would thus be considered small position to formulate an appropriate approximately $228,037 which would business under the SBA definition. It is budget and assessment rate. The be within the amount permitted in the also estimated that over 80 percent of assessment rate is formulated and order. the growers in the production area discussed in a public meeting. Thus, all The assessment rate established in produce less than $750,000 worth of directly affected persons have an this rule will continue in effect pistachios and would thus be opportunity to participate and provide indefinitely unless modified, considered small businesses under the input. suspended, or terminated by USDA SBA definition. For the 2006–07 production year, the upon recommendation and information This rule decreases the assessment Committee recommended, and USDA submitted by the Committee or other rate established for the Committee and approved, an assessment rate that would available information. collected from handlers for the 2011–12 continue in effect from production year Although this assessment rate is and subsequent production years from to production year unless modified, effective for an indefinite period, the $0.0007 to $0.0005 per pound of suspended, or terminated by USDA Committee will continue to meet prior assessed weight pistachios. The

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Committee unanimously recommended the burden on handlers, and may reduce Pursuant to 5 U.S.C. 553, it is also 2011–12 expenditures of $681,850 and the burden on producers. In addition, found and determined upon good cause an assessment rate of $0.0005 per pound the Committee’s meeting was widely that it is impracticable, unnecessary, of assessed weight pistachios. The publicized throughout the California, and contrary to the public interest to assessment rate of $0.0005 is $0.0002 Arizona, and New Mexico pistachio give preliminary notice prior to putting lower than the 2010–11 rate. The industry and all interested persons were this rule into effect, and that good cause quantity of assessable pistachios for the invited to attend the meeting and exists for not postponing the effective 2011–12 production year is estimated at participate in Committee deliberations date of this rule until 30 days after 400,000,000 pounds. Thus, the $0.0005 on all issues. Like all Committee publication in the Federal Register rate should provide $200,000 in meetings, the July 21, 2011, meeting was because: (1) The 2011–12 production assessment income. Income derived a public meeting and all entities, both year begins on September 1, 2011, and from handler assessments combined large and small, were able to express with the 2010–11 financial reserve, views on this issue. Finally, interested the marketing order requires that the estimated interest income, and funds persons are invited to submit comments rate of assessment for each production received from the CPRB is expected to on this interim rule, including the year apply to all assessable pistachios provide sufficient revenues for the regulatory and informational impacts of handled during such production year; Committee to meet its expenses while this action on small businesses. (2) this action decreases the assessment maintaining a financial reserve within In accordance with the Paperwork rate for assessable pistachios beginning the limit authorized under the order. Reduction Act of 1995, (44 U.S.C. with 2011–12 production year; (3) The major expenditures Chapter 35), the order’s information handlers are aware of this action which recommended by the Committee for the collection requirements have been unanimously recommended by the 2011–12 year include $115,850 for previously approved by the Office of Committee at a public meeting and is administrative expenses, $10,000 for Management and Budget (OMB) and similar to other assessment rate actions compliance expenses, $281,000 for assigned OMB No. 0581–0215 issued in past years; and (4) this interim salaries, $125,000 for research, and Pistachios Grown in California. No rule provides a 60-day comment period, $150,000 for a contingency fund. changes in those requirements as a and all comments timely received will Budgeted expenses for these items in result of this action are necessary. be considered prior to finalization of the 2010–11 were $112,400 for Should any changes become necessary, this rule. administrative expenses, $10,000 for they would be submitted to OMB for compliance expenses, and $281,000 for approval. List of Subjects in 7 CFR Part 983 salaries, $250,000 for a new research This action imposes no additional and food quality line item budget and reporting or recordkeeping requirements Marketing agreements, Pistachios, $150,000 for a contingency reserve. on either small or large California, Reporting and recordkeeping The recommended 2011–12 Arizona, and New Mexico handlers. As requirements. expenditures of $681,850 include a with all Federal marketing order For the reasons set forth in the substantial decrease in research programs, reports and forms are preamble, 7 CFR part 983 is amended as expenses and a slight increase in periodically reviewed to reduce follows: administrative expenses. The information requirements and Committee discussed alternative duplication by industry and public PART 983—PISTACHIOS GROWN IN expenditure levels, including sector agencies. CALIFORNIA, ARIZONA, AND NEW continuing with the current assessment AMS is committed to complying with MEXICO rate, but determined the lower the E-Government Act, to promote the assessment rate will better allow the use of the Internet and other ■ Committee to provide sufficient revenue information technologies to provide 1. The authority citation for 7 CFR to meet its expenses while maintaining increased opportunities for citizen part 983 continues to read as follows: a financial reserve within the limit access to Government information and Authority: 7 U.S.C. 601–674. authorized under the order. services, and for other purposes. According to NASS, the season In addition, USDA has not identified ■ 2. In § 983.253, paragraph (a) is average producer price was $1.67 in any relevant Federal rules that revised to read as follows: 2009 and $2.22 per pound of assessed duplicate, overlap, or conflict with this weight pistachios in 2010. A review of rule. § 983.253 Assessment rate. historical information and preliminary A small business guide on complying (a) On and after September 1, 2011, an information pertaining to the upcoming with fruit, vegetable, and specialty crop assessment rate of $0.0005 per pound is production year indicates that the marketing agreements and orders may established for California, Arizona, and grower price for the 2011–12 production be viewed at: http://www.ams.usda.gov/ New Mexico pistachios. year could range between $1.67 and MarketingOrdersSmallBusinessGuide. $2.22 per pound of assessed weight Any questions about the compliance * * * * * pistachios. Therefore, the estimated guide should be sent to Laurel May at Dated: September 23, 2011. assessment revenue for the 2011–12 the previously mentioned address in the Ellen King, production year as a percentage of total FOR FURTHER INFORMATION CONTACT Acting Administrator, Agricultural Marketing producer revenue during the 2011–12 section. Service. After consideration of all relevant production year could range between [FR Doc. 2011–25038 Filed 9–28–11; 8:45 am] 0.030 and 0.023 percent material presented, including the This action decreases the assessment information and recommendation BILLING CODE 3410–02–P obligation imposed on handlers. submitted by the Committee and other Assessments are applied uniformly on available information, it is hereby found all handlers, and some of the costs may that this rule, as hereinafter set forth, be passed on to producers. However, will tend to effectuate the declared decreasing the assessment rate reduces policy of the Act.

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NATIONAL CREDIT UNION and three of the Stabilization Fund deficit from flowing forward to the ADMINISTRATION Expenditures Act. acquiring institution. Finally, this proposed revision adds a requirement B. Proposed Rule 12 CFR Parts 700, 701, 702, 725, and that the retained earnings of the 741 On March 17, 2011, the NCUA Board acquired credit union at the point of (the Board) issued a proposed rule to acquisition be measured under RIN 3133–AD87 make conforming changes to the Generally Accepted Accounting definitions of ‘‘net worth’’ and ‘‘equity Procedures (GAAP) as referenced in the Net Worth and Equity Ratio ratio,’’ as those terms are used in Act. 12 U.S.C. 1790d(o)(2)(A). NCUA’s regulations. 76 FR 16345, All of the commenters objecting to AGENCY: National Credit Union March 23, 2011. The Board also this change cited at least one of three Administration (NCUA). proposed technical changes to the term reasons. First, six commenters believed ACTION: Final rule. ‘‘net worth’’ to ensure consistency and this change would have a chilling effect accurate accounting treatment in or act as a disincentive to credit unions SUMMARY: On January 4, 2011, President combination transactions. In response, interested in merging. The Board, Obama signed Senate Bill 4036 into law, the Board received 15 comments: Two however, notes that most mergers will which, among other things, amended from credit union trade associations; be unaffected by this change. For the the statutory definitions of ‘‘net worth’’ one from a bank trade association; one majority of credit union mergers, the and ‘‘equity ratio’’ in the Federal Credit from a state bank league; four from state resulting component is in the form of Union Act. Through this final rule, credit union leagues; four from federal goodwill rather than bargain purchase NCUA is making conforming credit unions; and three from federally gain. In those situations, this change amendments to the definition of ‘‘net insured state chartered credit unions. will have no effect on the transaction. worth’’ as it appears in NCUA’s Prompt All of the commenters supported the For those few mergers that this change Corrective Action regulation and the conforming changes to the definitions of will impact, the Board believes the definition of ‘‘equity ratio’’ as it appears ‘‘net worth’’ and ‘‘equity ratio,’’ but a impact will be minimal and will not in NCUA’s Requirements for Insurance majority of the commenters disagreed create any disincentive to mergers as it regulation. NCUA is also making with the Board’s proposed technical duplicates the regulatory capital result technical changes in other regulations to correction to the definition of net worth achieved under the old pooling method. ensure clarity and consistency in the in § 702.2(f)(3) of NCUA’s regulation. In responding to these comments, use of the term ‘‘net worth,’’ as it is The proposed technical change, which NCUA staff looked at recent mergers to applied to federally-insured credit addresses the acquisition of one credit evaluate the impact this change would unions. union by another, requires the have had on those transactions. Of the DATES: This rule will become effective subtraction of any bargain purchase gain mergers reviewed, which resulted in a on October 31, 2011. from the acquired credit union’s bargain purchase gain, none would have resulted in a significant decrease in net FOR FURTHER INFORMATION CONTACT: retained earnings when determining the worth because of the technical Justin M. Anderson, Staff Attorney, amount of regulatory capital add-on to correction. To illustrate this point, the Office of General Counsel, at the above be included in the acquirer credit Board notes that, of the mergers address or telephone (703) 518–6540 or union’s post acquisition net worth. In addition, commenters also reviewed, the sharpest decline in net Karen Kelbly, Chief Accountant, Office worth was from a net worth of 12.93% of Examination and Insurance, at the addressed other points in the proposed rule, including the differing definitions under the current rule to a net worth of above address or telephone at 703–518– 12.46% with the technical correction. 6630. of ‘‘net worth’’ in the Prompt Corrective Action (PCA) and Member Business Second, six commenters also stated SUPPLEMENTARY INFORMATION: Loan (MBL) regulations, the inclusion of that this change is contrary to GAAP A. Background section 208 assistance in a credit and would put acquiring credit unions union’s net worth, and the public in a worse financial position than they On January 4, 2011, President Obama otherwise would have been had the signed An Act to Clarify the National disclosure of credit unions that receive section 208 assistance. Below, the Board transaction been accounted for under Credit Union Administration Authority GAAP. The Board agrees with discusses each of the topics addressed to Make Stabilization Fund commenters that GAAP should govern by the commenters. Expenditures without Borrowing from the financial reporting of merger the Treasury (the Stabilization Fund C. Summary of Comments transactions and notes that this Expenditures Act) into law. S. 4036, technical correction does not change the 1. Technical Change To ‘‘Net Worth’’ 111th Cong., Public Law 111–382 requirement for credit unions to report (2011). The Stabilization Fund Eleven commenters objected to merger transactions in accordance with Expenditures Act amended the Federal NCUA’s technical change to the GAAP. This technical correction Credit Union Act (the Act) by clarifying definition of ‘‘net worth’’ in a ensures that an acquiring credit union’s NCUA’s authority to make stabilization combination transaction as set forth in regulatory capital does not achieve a fund expenditures without borrowing proposed § 702.2(f)(3). The proposed double benefit through a bargain from the Treasury, amending the change requires the subtraction of any purchase gain, which is not contrary to definitions of ‘‘equity ratio’’ and ‘‘net bargain purchase gain from an acquired GAAP accounting. worth,’’ and requiring the Comptroller credit union’s retained earnings before Finally, eight commenters stated that General of the United States to conduct the latter amount is included in the net this change is contrary to the purpose a study on NCUA’s handling of the worth of the acquiring credit union. and intent of the 2006 Financial recent corporate credit union crisis. The This proposed correction also limits the Services Relief Act (2006 Relief Act). Stabilization Fund Expenditures Act is difference between the added retained The 2006 Relief Act amended the FCU divided into four sections, and the earnings and bargain purchase gain to Act by defining ‘‘net worth’’ as amendments in this rule implement the an amount that is zero or more, which including ‘‘the retained earnings changes made to the Act by sections two would prevent a retained earnings balance of the credit union, as

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determined under generally accepted capital and thus preserve the incentive proposed by the Board retains the accounting procedures, together with for desirable credit union mergers.’’ forward flow of the capital of both the any amounts that were previously Staff of Senate Comm. on Banking, acquired and acquiring credit unions, retained earnings of any credit union Housing and Urban Affairs, 109th Cong., but removes the double counting of the with which the credit union has Section-By-Section Analysis of acquired credit union’s capital caused combined.’’ Public Law 709–351, Financial Services Regulatory Relief Act by the accounting treatment of bargain section 504 (2006), 12 U.S.C. of 2006 (Comm. Print 2006) at 3. By purchase gain. The Board’s proposed 1790d(o)(2)(A). The expanded definition duplicating the regulatory capital technical correction, therefore, is permitted the acquiring credit union to measure previously obtained under the consistent with Congress’ objective in ‘‘follow the new Financial Accounting pooling method of accounting, the 2006 the 2006 Relief Act. The following Standards Board (FASB) rule while still Relief Act eliminated the regulatory hypothetical example illustrates how allowing the capital of both credit capital disincentive caused by changes the technical correction is in line with unions to flow forward as regulatory to the FASB rules. The technical change Congress’ intent:

TABLE 1—HYPOTHETICAL EXAMPLE

Target’s balance sheet Book value Fair value

Assets ...... $475,000 $500,000 Liabilities ...... 348,000 350,000 Equity: Retained Earnings ...... 127,000 ...... Acquired Equity ...... 125,000 Bargain Purchase Gain ...... 25,000 Liabilities & Equity ...... 475,000 500,000 Acquirer’s Retained Earnings ...... 250,000 ......

TABLE 2—COMPARISON OF ACQUIRER’S REGULATORY CAPITAL OUTCOMES

Under old Under current With technical pooling rule w/BPG amendment

Acquirer’s Retained Earnings Under GAAP ...... $250,000 $275,000 $275,000 Target’s Regulatory Capital Add-on: PreMerger Retained Earnings ...... 127,000 127,000 127,000 Less: Bargain Purchase Gain ...... (25,000) Net Worth (Regulatory Capital) ...... 377,000 402,000 377,000

Based on the discussion above and for definition of ‘‘net worth’’ in the MBL believe that the phrase ‘‘facilitate a least the reasons articulated in the proposed and PCA regulations without a statutory cost resolution’’ limits when section 208 rule (see 76 FR 16345, March 23, 2011), change. assistance may be considered net worth the Board is retaining the technical 3. Clarification of Section 208 to only those situations where it is change in this final rule that requires Assistance provided to facilitate a merger. In the subtraction of any bargain purchase contrast, two other commenters stated gain from the acquired credit union’s The Board received four comments that section 208 assistance counted as retained earnings before the latter seeking clarification on when 208 net worth should not be restricted to amount is included in the acquirer’s net assistance can be counted as net worth. only those situations involving a worth. A technical change to a reference Section 208 of the Act allows the Board, merger. These other commenters also in Part 725 is also made due to a in its discretion, to make loans to, or cited the statutory amendments and realignment of definitions in Part 700. purchase the assets of, or establish argued that the Stabilization Fund accounts in insured credit unions the 2. Consistent Definition of ‘‘Net Worth’’ Expenditures Act does not contain Board has determined are in danger of explicit limitations on when section 208 Four commenters objected to the use closing or in order to assist in the assistance can be included in a credit of a different definition of ‘‘net worth’’ voluntary liquidation of a solvent credit unions net worth, but rather provides in the MBL and PCA regulations. These union. 12 U.S.C. 1788(a)(1). Two the Board with a high level of discretion commenters stated that the differing commenters stated that it was Congress’ on when to use section 208 assistance definitions were unfair and would likely intent to limit when section 208 as net worth. Id. cause confusion among credit unions. assistance may be counted as net worth As noted in the proposed rule, the to only those situations when the Board After considering the comments and differing definitions are based on the provides the assistance to facilitate a revisiting the language of the statutory definitions of ‘‘net worth’’ used in the merger between a healthy and a failed amendments, the Board concurs with sections of the Act addressing MBLs and credit union. These commenters cited a the commenters who stated that section PCA. See 76 FR 16345, March 23, 2011 portion of the Stabilization Fund 208 assistance as net worth should not and 12 U.S.C. 1757a(c)(2) and Expenditures Act, which states that be limited to only those instances when 1790d(o)(2). The differing definitions of section 208 assistance may be counted a merger is involved. As those net worth for MBLs and PCA in NCUA’s as net worth when it is provided by the commenters pointed out, there is regulations reflect the corresponding Board ‘‘to facilitate a least cost nothing in the statutory change that differing definitions in the Act. As such, resolution.’’ 111 Public Law 382, 124 states that section 208 assistance can the Board cannot use the same Stat. 4134 (2011). These commenters only be counted as net worth when a

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merger is involved. In fact, when read describe any significant economic List of Subjects in 12 CFR Parts 700, as a whole, the Act, as amended by the impact a proposed rule may have on a 701, 702, 725, and 741 Stabilization Fund Expenditures Act, substantial number of small credit Bank deposit insurance, Credit, Credit addresses net worth in the context of a unions (those under $10 million in unions, Reporting and recordkeeping merger and in the context of section 208 assets). This final rule modifies the requirements. assistance in different sections. definition of ‘‘net worth’’ and ‘‘equity Specifically, section 216(o)(2)(A) of the ratio,’’ and will not have a significant By the National Credit Union Act defines net worth of a credit union economic impact on a substantial Administration Board on September 22, 2011. in a combination transaction and number of small credit unions and a section 216(o)(2)(B) of the Act regulatory flexibility analysis is not Mary Rupp, separately defines net worth with required. Secretary of the Board. respect to section 208 assistance. 12 For the reasons stated in the Small Business Regulatory Enforcement U.S.C. 1790d(o)(2)(A) and (B). The preamble, the National Credit Union Fairness Act Board believes that this statutory Administration amends 12 CFR parts construction as well as the absence of The Small Business Regulatory 700, 701, 702, 725, and 742 as set forth limiting language in the Stabilization Enforcement Fairness Act (SBREFA) of below: Fund Expenditures Act supports the 1996, Public Law 104–121, provides conclusion that defining section 208 generally for congressional review of PART 700—DEFINITIONS assistance as net worth is not limited to agency rules. A reporting requirement is ■ 1. The authority citation for part 700 situations only involving a merger. The triggered in instances where NCUA continues to read as follows: Board, therefore, is clarifying that issues a final rule as defined by Section section 208 assistance can be counted in 551 of the Administrative Procedures Authority: 12 U.S.C. 1752, 1757(6) and a credit union’s net worth subject only Act. 5 U.S.C. 551. The Office of 1766. to those limitations contained in the Information and Regulatory Affairs, an ■ 2. In § 700.2: rule text and is not limited only to office within the Office of Management ■ a. Remove the alphabetical paragraph merger transactions. and Budget, is currently reviewing this designations,and add in alphabetical rule, and NCUA anticipates it will 4. Section 208 Assistance on the 5300 order a definition for ‘‘net worth’’; and determine that, for purposes of SBREFA, ■ b. In the definition of ‘‘insolvency,’’ Finally, three commenters requested this is not a major rule. transfer paragraph designation (1) to that NCUA include a separate line item Paperwork Reduction Act follow the term. on the 5300 Call Report for reporting The addition reads as follows: section 208 assistance received by a NCUA has determined that the final credit union. These commenters cited amendments will not increase § 700.2 Definitions. transparency and accountability as paperwork requirements and a * * * * * reasons for the inclusion of section 208 paperwork reduction analysis is not Net worth. Unless otherwise noted, assistance on the 5300 Call Report. required. the term ‘‘net worth,’’ as applied to NCUA has previously declined to make Executive Order 13132 credit unions, has the same meaning as information about credit unions set forth in § 702.2(f) of this chapter. Executive Order 13132 encourages receiving section 208 assistance public independent regulatory agencies to * * * * * because there is a strong possibility that consider the impact of their actions on members may perceive receipt of PART 701—ORGANIZATION AND state and local interests. In adherence to section 208 assistance to indicate a OPERATION OF FEDERAL CREDIT fundamental federalism principles, weak and unstable credit union. UNIONS NCUA, an independent regulatory Further, this information would also be agency as defined in 44 U.S.C. 3502(5), exempt from public disclosure pursuant ■ 3. The authority citation for part 701 voluntarily complies with the executive to Exemption 8 of the FOIA.1 While the continues to read as follows: order. The final rule would not have Board is dedicated to transparency in its substantial direct effects on the states, Authority: 12 U.S.C. 1752(5), 1755, 1756, operations, this dedication must also be 1757, 1758, 1759, 1761a, 1761b, 1766, 1767, on the connection between the national balanced with the safety and soundness 1782, 1784, 1786, 1787, 1789. Section 701.6 government and the states, or on the of the credit union industry. As such, is also authorized by 15 U.S.C. 3717. Section distribution of power and the Board continues to agree with this 701.31 is also authorized by 15 U.S.C. 1601 responsibilities among the various rationale for not publicly releasing et seq.; 42 U.S.C. 1981 and 3601–3610. levels of government. NCUA has Section 701.35 is also authorized by 42 information on credit unions that determined that this final rule does not U.S.C. 4311–4312. receive section 208 assistance and will constitute a policy that has federalism ■ 4. Revise § 701.21(h)(4)(iv) to read as not include a separate line item on the implications for purposes of the follows: 5300 Call Report for the disclosure of executive order. section 208 assistance. § 701.21 Loans to members and lines of The Treasury and General Government credit to members. Regulatory Procedures Appropriations Act, 1999—Assessment * * * * * Regulatory Flexibility Act of Federal Regulations and Policies on (h) * * * The Regulatory Flexibility Act Families (4) * * * requires NCUA to prepare an analysis to NCUA has determined that this (iv) The term ‘‘net worth’’ means the proposed rule would not affect family retained earnings balance of the credit 1 Exemption 8 of the FOIA exempts from well-being within the meaning of union at quarter end as determined disclosure information contained in or related to section 654 of the Treasury and General under generally accepted accounting examination, operating, or condition reports principles and as further defined in prepared by, on behalf of, or for the use of an Government Appropriations Act, 1999, agency responsible for the regulation or supervision Public Law 105–277, 112 Stat. 2681 § 702.2(f) of this chapter. of financial institutions. 5 U.S.C. 552(b)(8). (1998). * * * * *

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PART 702—PROMPT CORRECTIVE paragraph (1) to the definition of Amendment 39–15944. This AD was ACTION ‘‘insolvency in § 700.2’’. prompted by further investigation and a request for an alternative method of ■ 5. The authority citation for part 702 PART 741—REQUIREMENTS FOR compliance (AMOC). We are issuing continues to read as follows: INSURANCE this AD to correct the unsafe condition on these products. Authority: 12 U.S.C. 1766(a), 1790(d). ■ 9. The authority citation for part 741 ■ DATES: This AD is effective November 3, 6. In 702.2, revise paragraph (f)(3) and continues to read as follows: add paragraph (f)(4) to read as follows: 2011. Authority: 12 U.S.C. 1757, 1766(a), 1781– The Director of the Federal Register § 702.2 Definitions. 1790, and 1790d; 31 U.S.C. 3717. approved the incorporation by reference * * * * * ■ 10. In § 741.4, in paragraph (b), revise of a certain publication listed in this AD (f) * * * the introductory text to the definition of as of July 24, 2009 (74 FR 29118, June (3) For a credit union that acquires ‘‘equity ratio’’ to read as follows: 19, 2009). another credit union in a mutual ADDRESSES: For service information combination, net worth includes the § 741.4 Insurance premium and one identified in this AD, contact Piper retained earnings of the acquired credit percent deposit. Aircraft, Inc., 2926 Piper Drive, Vero union, or of an integrated set of * * * * * Beach, Florida 32960; telephone: (772) activities and assets, less any bargain (b) * * * 567–4361; fax: (772) 978–6573; Internet: purchase gain recognized in either case Equity ratio, which shall be calculated http://www.newpiper.com/company/ to the extent the difference between the using the financial statements of the publications.asp. You may review two is greater than zero. The acquired NCUSIF alone, without any copies of the referenced service retained earnings must be determined at consolidation or combination with the information at the FAA, Small Airplane the point of acquisition under generally financial statements of any other fund or Directorate, 901 Locust, Kansas City, accepted accounting principles. A entity, means the ratio of: Missouri 64106. For information on the mutual combination is a transaction in * * * * * availability of this material at the FAA, which a credit union acquires another [FR Doc. 2011–24907 Filed 9–28–11; 8:45 am] call (816) 329–4148. credit union or acquires an integrated BILLING CODE 7535–01–P Examining the AD Docket set of activities and assets that is capable of being conducted and You may examine the AD docket on managed as a credit union. DEPARTMENT OF TRANSPORTATION the Internet at http:// (4) The term ‘‘net worth’’ also www.regulations.gov; or in person at the includes loans to and accounts in an Federal Aviation Administration Docket Management Facility between insured credit union established 9 a.m. and 5 p.m., Monday through pursuant to section 208 of the Act [12 14 CFR Part 39 Friday, except Federal holidays. The AD U.S.C. 1788], provided such loans and docket contains this AD, the regulatory [Docket No. FAA–2009–0218; Directorate accounts: evaluation, any comments received, and Identifier 2009–CE–006–AD; Amendment other information. The address for the (i) Have a remaining maturity of more 39–16820; AD 2009–13–06 R1] than 5 years; Docket Office (phone: 800–647–5527) is (ii) Are subordinate to all other claims RIN 2120–AA64 Document Management Facility, U.S. including those of shareholders, Department of Transportation, Docket creditors and the National Credit Union Airworthiness Directives; Piper Operations, M–30, West Building Share Insurance Fund; Aircraft, Inc. Airplanes Ground Floor, Room W12–140, 1200 (iii) Are not pledged as security on a AGENCY: Federal Aviation New Jersey Avenue, SE., Washington, loan to, or other obligation of, any party; Administration (FAA), DOT. DC 20590. (iv) Are not insured by the National FOR FURTHER INFORMATION CONTACT: ACTION: Final rule. Credit Union Share Insurance Fund; Gregory K. Noles, Aerospace Engineer, (v) Have non-cumulative dividends; SUMMARY: We are revising an existing FAA, Atlanta Aircraft Certification (vi) Are transferable; and airworthiness directive (AD) for certain Office, 1701 Columbia Avenue, College (vii) Are available to cover operating Piper Aircraft, Inc. Models PA–23, PA– Park, Georgia 30337; telephone: (404) losses realized by the insured credit 23–160, PA–23–235, PA–23–250, PA– 474–5551; fax: (404) 474–5606; e-mail: union that exceed its available retained 23–250 (Navy UO–1), PA–E23–250, PA– [email protected]. earnings. 31, PA–31–300, PA–31–325, PA–31– SUPPLEMENTARY INFORMATION: * * * * * 350, PA–31P, PA–31P–350, PA–31T, PA–31T1, PA–31T2, PA–31T3, PA–42, Discussion PART 725—NATIONAL CREDIT UNION PA–42–720, and PA–42–1000 airplanes We issued a notice of proposed ADMINISTRATION CENTRAL that are equipped with a baggage door rulemaking (NPRM) to amend 14 CFR LIQUIDITY FACILITY in the fuselage nose section (a nose part 39 to revise AD 2009–13–06, baggage door). That AD currently amendment 39–15944 (74 FR 29118, ■ 7. The authority citation for part 725 establishes life limits and replacement June 19, 2009). That AD applies to the continues to read as follows: requirements for safety-critical nose specified products. The NPRM Authority: Secs. 301–307 Federal Credit baggage door components and repetitive published in the Federal Register on Union Act, 92 Stat. 3719–3722 (12 U.S.C. inspections and lubrication of the nose May 20, 2011 (76 FR 29176). That 1795–1795f). baggage door latching mechanism and NPRM proposed to continue to require lock assembly. This new AD removes establishment of life limits for safety- § 725.18 [Amended] the requirement for the nose baggage critical nose baggage door components. ■ 8. In § 725.18, amend paragraph (c) by door compartment interior light That NPRM also proposed to continue removing the words ‘‘by § 700.2(e)(1)’’ inspection and retains the other to require replacement of those safety- and adding in its place the words ‘‘in requirements from AD 2009–13–06, critical nose baggage door components

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and repetitive inspections and commenters stated this would match Conclusion lubrications of the nose baggage door program extensions for aircraft that are We reviewed the relevant data, latching mechanism and lock assembly. in for-hire or instructional usage per 14 considered the comments received, and The NPRM also proposed to remove the CFR 91.409(b) and that similar determined that air safety and the requirement for the nose baggage door allowance had been allowed in other public interest require adopting the AD compartment interior light inspection. ADs. with the change described previously Comments We agree with this comment because and minor editorial changes. We have We gave the public the opportunity to the requested extension provides an determined that these minor changes: • participate in developing this AD. Ed acceptable level of safety for this class Are consistent with the intent that Keith of Wright Air Service, the Aircraft of aircraft. We revised paragraph (f)(2) of was proposed in the NPRM for Owners and Pilots Association, Gary this AD to include the following text: correcting the unsafe condition; and King, and several others commented ‘‘Initially within 100 hours TIS after • Do not add any additional burden that they support the NPRM. The July 24, 2009 (the effective date retained upon the public than was already following presents a comment received from AD 2009–13–06, amendment proposed in the NPRM. on the proposal and the FAA’s response 39–15944 (74 FR 29118, June 19, 2009); We also determined that these to the comment: and repetitively thereafter at intervals of changes will not increase the economic 100 hours TIS. The 100-hour interval burden on any operator or increase the Revised Compliance Time may be exceeded by not more than 10 scope of the AD. Ben Stevens and another commenter hours TIS to reach a place where the Costs of Compliance requested we revise the compliance inspection can be done, per 14 CFR time in paragraph (f)(2) for the repetitive 91.409(b). The excess time used to reach We estimate that this AD affects 8,000 interval to allow for a 10 percent (110 a place where the inspection can be airplanes of U.S. registry. hours) overrun for return to a done must be included in computing We estimate the following costs to maintenance base for inspection. The the next 100 hours of TIS.’’ comply with this AD:

ESTIMATED COSTS

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

Inspection and parts replacement of nose 4 work-hours × $85 per hour = $340 ...... $190 $530 $4,240,000 baggage door.

The new requirements of this AD add Regulatory Findings the FAA amends 14 CFR part 39 as no additional economic burden. The follows: We have determined that this AD will increased estimated cost of this AD is not have federalism implications under due to increased labor cost from 2009 PART 39—AIRWORTHINESS Executive Order 13132. This AD will DIRECTIVES when AD 2009–13–06, amendment 39– not have a substantial direct effect on 15944 (74 FR 29118, June 19, 2009) was the States, on the relationship between ■ 1. The authority citation for part 39 issued. the national government and the States, continues to read as follows: or on the distribution of power and Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. responsibilities among the various Title 49 of the United States Code levels of government. § 39.13 [Amended] specifies the FAA’s authority to issue For the reasons discussed above, I ■ 2. The FAA amends § 39.13 by rules on aviation safety. Subtitle I, certify that this AD: removing airworthiness directive AD Section 106, describes the authority of (1) Is not a ‘‘significant regulatory 2009–13–06, amendment 39–15944 (74 the FAA Administrator. Subtitle VII, action’’ under Executive Order 12866, FR 29118, June 19, 2009), and adding Aviation Programs, describes in more (2) Is not a ‘‘significant rule’’ under the following new AD: detail the scope of the Agency’s DOT Regulatory Policies and Procedures authority. 2009–13–06 R1 Piper Aircraft, Inc.: (44 FR 11034, February 26, 1979), Amendment 39–16820; Docket No. We are issuing this rulemaking under (3) Will not affect intrastate aviation FAA–2009–0218; Directorate Identifier the authority described in Subtitle VII, in Alaska, and 2009–CE–006–AD. Part A, Subpart III, Section 44701, (4) Will not have a significant (a) Effective Date ‘‘General requirements.’’ Under that economic impact, positive or negative, on a substantial number of small entities This airworthiness directive (AD) is section, Congress charges the FAA with effective November 3, 2011. promoting safe flight of civil aircraft in under the criteria of the Regulatory air commerce by prescribing regulations Flexibility Act. (b) Affected ADs for practices, methods, and procedures List of Subjects in 14 CFR Part 39 This AD revises AD 2009–13–06, the Administrator finds necessary for amendment 39–15944 (74 FR 29118, June 19, safety in air commerce. This regulation Air transportation, Aircraft, Aviation 2009). is within the scope of that authority safety, Incorporation by reference, (c) Applicability because it addresses an unsafe condition Safety. This AD applies to Models PA–23, PA–23– that is likely to exist or develop on Adoption of the Amendment 160, PA–23–235, PA–23–250, PA–23–250 products identified in this rulemaking (Navy UO–1), PA–E23–250, PA–31, PA–31– action. Accordingly, under the authority 300, PA–31–325, PA–31–350, PA–31P, PA– delegated to me by the Administrator, 31P–350, PA–31T, PA–31T1, PA–31T2, PA–

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31T3, PA–42, PA–42–720, and PA–42–1000 (e) Unsafe Condition assembly. The door opening in flight could airplanes, all serial numbers, that are: This AD was prompted by several significantly affect the handling and performance of the aircraft. It could also (1) Certificated in any category; and incidents and accidents, including fatal allow baggage to be ejected from the nose (2) Equipped with a baggage door in the accidents, where the nose baggage door fuselage nose section (a nose baggage door). baggage compartment and strike the opening in flight was listed as a causal factor. propeller. This failure could lead to loss of (d) Subject We are issuing this AD to establish life limits control. for safety-critical nose baggage door Joint Aircraft System Component (JASC)/ components, replace those safety-critical (f) Compliance Air Transport Association (ATA) of America nose baggage door components, and Comply with this AD within the Code, 52, Doors. repetitively inspect and lubricate the nose compliance times specified, unless already baggage door latching mechanism and lock done.

Actions Compliance Procedures

(1) For all aircraft: (i) Inspect the nose baggage Initially within 1,000 hours time-in-service Follow INSTRUCTIONS: PART I of Piper Air- door assembly for damaged, worn, corroded, (TIS) since all life-limited components were craft, Inc. Mandatory Service Bulletin No. or non-conforming components; (ii) Replace installed new following Piper Aircraft, Inc. 1194A, dated November 10, 2008. As an life-limited components specified in the serv- Mandatory Service Bulletin No. 1194A, alternative to using the part number ice information; and (iii) Install or inspect, as dated November 10, 2008, or within the 100700–079 placard, you may fabricate a applicable, the nose baggage placard fol- next 100 hours TIS after July 24, 2009 (the placard (using at least lowing the service information. effective date retained from AD 2009–13– 1⁄8-inch letters) with the words in figure 1 of 06, amendment 39–15944 (74 FR 29118, this AD and install the placard directly June 19, 2009), whichever occurs later. Re- above the nose baggage door handle. This petitively thereafter at intervals not to ex- AD does not require the verification of prop- ceed 1,000 hours TIS. er functioning of the nose baggage com- partment interior light set forth in the last sentence of PART 1, paragraph 1, of Piper Aircraft, Inc. Mandatory Service Bulletin No. 1194A, dated November 10, 2008. (2) For all aircraft: (i) Lubricate and inspect all Initially within 100 hours TIS after July 24, Follow INSTRUCTIONS: PART II of Piper Air- nose baggage door latching and locking com- 2009 (the effective date retained from AD craft, Inc. Mandatory Service Bulletin No. ponents for damaged, worn, corroded, or 2009–13–06, amendment 39–15944 (74 FR 1194A, dated November 10, 2008. non-conforming components; and (ii) Verify 29118, June 19, 2009); and repetitively the key can only be removed from the lock thereafter at intervals of 100 hours TIS. The assembly in the locked position in accord- 100-hour interval may be exceeded by not ance with the service instructions. more than 10 hours TIS to reach a place where the inspection can be done, per 14 CFR 91.409(b). The excess time used to reach a place where the inspection can be done must be included in computing the next 100 hours of TIS. (3) For all aircraft with damaged, worn, cor- Before further flight after any inspection re- Follow Piper Aircraft, Inc. Mandatory Service roded, or non-conforming components: Re- quired in paragraphs (f)(1) and (f)(2) of this Bulletin No. 1194A, dated November 10, pair/replace any damaged, worn, corroded, or AD where any evidence of damaged, worn, 2008. non-conforming components. corroded or non-conforming components was found.

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(g) Alternative Methods of Compliance November 10, 2008, to do the actions SECURITIES AND EXCHANGE (AMOCs) required by this AD, unless the AD specifies COMMISSION (1) The Manager, Atlanta Aircraft otherwise. The Director of the Federal Certification Office (ACO), FAA, has the Register approved the incorporation by 17 CFR Parts 200, 201, and 204 authority to approve AMOCs for this AD, if reference (IBR) under 5 U.S.C. 552(a) and 1 [Release No. 34–65385] requested using the procedures found in 14 CFR part 51 on July 24, 2009 (74 FR 29118, CFR 39.19. In accordance with 14 CFR 39.19, June 19, 2009). Consolidation of the Office of the send your request to your principal inspector (2) For service information identified in or local Flight Standards District Office, as Executive Director With the Office of this AD, contact Piper Aircraft, Inc., 2926 appropriate. If sending information directly the Chief Operating Officer to the manager of the ACO, send it to the Piper Drive, Vero Beach, Florida 32960; attention of the person identified in the telephone: (772) 567–4361; fax: (772) 978– AGENCY: Securities and Exchange Related Information section of this AD. 6573; Internet: http://www.newpiper.com/ Commission. (2) Before using any approved AMOC, company/publications.asp. ACTION: Final rule. notify your appropriate principal inspector, (3) You may review copies of the or lacking a principal inspector, the manager referenced service information at the FAA, SUMMARY: The Securities and Exchange of the local flight standards district office/ Central Region, Office of the Regional Commission (‘‘Commission’’) is certificate holding district office. Counsel, 901 Locust, Kansas City, Missouri amending its rules to reflect the (3) AMOCs approved for AD 2009–13–06, 64106. For information on the availability of consolidation of the Office of the amendment 39–15944 (74 FR 29118, June 19, this material at the FAA, call (816) 329–3768. Executive Director with the Office of the 2009) are approved as AMOCs for this AD. (4) You may also review copies of the Chief Operating Officer, including The format has been revised and certain amendments to replace references to the paragraphs have been rearranged since AD service information that is incorporated by 2009–13–06 was issued, including changes to reference at the National Archives and Executive Director with references to paragraph identifiers in this AD. Previous Records Administration (NARA). For the Chief Operating Officer. AMOCs may refer to particular paragraph information on the availability of this DATES: Effective Date: September 29, identifiers from the original AD, however, the material at an NARA facility, call 202–741– 2011. corresponding actions of the AMOC in the 6030, or go to http://www.archives.gov/ FOR FURTHER INFORMATION CONTACT: revised AD still apply even though the federal_register/code_of_federal_regulations/ Jeffery Heslop, Chief Operating Officer, identifiers have changed. ibr_locations.html. at (202) 551–2105, Securities and (h) Related Information Issued in Kansas City, Missouri on Exchange Commission, 100 F Street, For more information about this AD, September 20, 2011. NE., Washington, DC 20549. contact Gregory K. Noles, Aerospace Wes Ryan, SUPPLEMENTARY INFORMATION: Engineer, FAA, Atlanta ACO, 1701 Columbia Acting Manager, Small Airplane Directorate, Avenue, College Park, Georgia 30337; I. Discussion Aircraft Certification Service. telephone: (404) 474–5551; fax: (404) 474– Until recently, the support functions 5606; e-mail: [email protected]. [FR Doc. 2011–25008 Filed 9–28–11; 8:45 am] of the Commission were allocated BILLING CODE 4910–13–P (i) Material Incorporated by Reference primarily to the Office of the Executive (1) You must use Piper Aircraft, Inc. Director (‘‘OED’’). In 2010, however, the Mandatory Service Bulletin No. 1194A, dated Commission established the Office of

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the Chief Operating Officer (‘‘OCOO’’) II. Related Matters List of Subjects and allocated some support and 17 CFR Part 200 administrative functions to OCOO. A. Administrative Procedure Act and Then, on April 19, 2011, the Other Administrative Laws Administrative practice and Commission approved the consolidation The Commission has determined that procedure, Authority delegations (Government agencies), Organization of the OED with the OCOO in an effort these amendments to its rules relate to streamline the organizational and functions (Government agencies). solely to the agency’s organization, structure of the agency and add clarity procedure, or practice. Accordingly, the 17 CFR Part 201 and efficiency to the functions of the Chief Operating Officer. provisions of the Administrative Administrative practice and These amendments harmonize the Procedure Act regarding notice of procedure, Brokers, Claims, Commission’s rules with the proposed rulemaking and opportunity Confidential business information, consolidation already approved by for public participation are not Equal access to justice, lawyers, replacing references to the Executive applicable.1 The Regulatory Flexibility Penalties, Securities. Director with references to the Chief Act, therefore, does not apply.2 Because 17 CFR Part 204 Operating Officer. These include these rules relate solely to the agency’s references to the Executive Director in organization, procedure, or practice and Claims, Government employees, rules describing the responsibilities of do not substantially affect the rights or Income taxes, Reporting and the Executive Director and officers obligations of non-agency parties, they recordkeeping requirements, Wages. serving under the Executive Director; are not subject to the Small Business Text of Amendments rules delegating authority to the Regulatory Enforcement Fairness Act.3 In accordance with the preamble, the Executive Director and officers serving Finally, these amendments do not Commission hereby amends Title 17, under the Executive Director; and rules contain any collection of information Chapter II of the Code of Federal relating to the classification and requirements as defined by the Regulations as follows: declassification of national security Paperwork Reduction Act of 1995, as information and material. As a result of amended.4 these amendments, these rules now will PART 200—ORGANIZATION; apply to the Chief Operating Officer and B. Cost-Benefit Analysis CONDUCT AND ETHICS; AND officers serving under the Chief INFORMATION AND REQUESTS The Commission is sensitive to the Operating Officer, as applicable. Subpart A—Organization and Program The amendments also make costs and benefits imposed by its rules. Management conforming changes to Commission The amendments adopted today are rules relating to the offices that report to procedural in nature and will produce ■ 1–2. The authority citation for Part the OCOO. They amend provisions the benefit of facilitating the efficient 200, Subpart A, continues to read, in relating to the Office of the Comptroller operation of the Commission. The part, as follows: to reflect that this office is now known Commission also believes that these Authority: 15 U.S.C. 77o, 77s, 77sss, 77d, as the Office of Financial Management rules will not impose any costs on non- and headed by the Chief Financial 78d–1, 78d–2, 78w, 78ll(d), 78mm, 80a–37, agency parties, or that if there are any 80b–11, and 7202, unless otherwise noted. Officer. They amend provisions relating such costs, they are negligible. to the Office of Administrative and * * * * * Personnel Management to reflect that C. Consideration of Burden on ■ 3. In 17 CFR Part 200, remove the the functions of this office are now Competition words ‘‘Executive Director’’ and add, in performed by the Office of Human their place, the words ‘‘Chief Operating Resources and the Office of Section 23(a)(2) of the Exchange Act Officer’’ in the following places: Administrative Services. They amend requires the Commission, in making ■ a. Section 200.13, heading and provisions relating to the former Office rules pursuant to any provision of the paragraphs (a) introductory text, (b), and of Freedom of Information and Privacy Exchange Act, to consider among other (c); Act Operations to reflect that this Office matters the impact any such rule would ■ b. Section 200.17, introductory text; is now known as the Office of FOIA, have on competition. The Commission ■ c. Section 200.21(a); Records Management, and Security. does not believe that the amendments ■ d. Section 200.30–3(a)(80); And, they remove a reference to the that the Commission is adopting today ■ e. Section 200.30–15, heading and Office of Filings and Information will have any impact on competition text; Services, to reflect that this Office no because they impose no new burden ■ f. Section 200.503, introductory text longer exists. upon market participants and are and paragraph (a); ■ Finally, the amendments would intended to facilitate the efficient g. Section 200.504, introductory text; ■ remove from the description of the operation of the Commission. h. Section 200.505(c); functions of the COO (previously the ■ i. Section 200.508(a); description of the functions of the Statutory Authority ■ j. Section 200.510(a); and Executive Director) the functions of ■ k. Section 200.511(a). prescribing procurement regulations, The amendments to the Commission’s entering into contracts, designating rules are adopted pursuant to 15 U.S.C. § 200.13 [Amended] contracting officers, and making 77o, 77s, 77sss, 77d, 78d–1, 78d–2, 78w, ■ 4. In § 200.13: procurement determinations. We 78ll(d), 78mm, 80a–37, 80b–11, and ■ a. In paragraph (a), remove the phrase believe it is appropriate to retain for the 7202. ‘‘the Office of Administrative and Chairman the flexibility to designate the Personnel Management, the Office of the person or persons who shall perform 1 5 U.S.C. 553(b). Comptroller, the Office of Filings and these functions, rather than to specify 2 5 U.S.C. 601–612. Information Services, the Office of by rule that these functions are allocated 3 5 U.S.C. 804. Freedom of Information and Privacy Act to the COO. 4 44 U.S.C. 3501–3520. Operations’’ and add, in its place, the

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phrase ‘‘the Office of Human Resources, PART 201—RULES OF PRACTICE 844 N. Rush Street, Chicago, Illinois the Office of Administrative Services, 60611–2092. ■ the Office of Financial Management, the 11. The authority citation for Part 201 FOR FURTHER INFORMATION CONTACT: Office of FOIA, Records Management, is revised to read as follows: Marguerite P. Dadabo, Assistant General and Security’’; Authority: 15 U.S.C. 77s, 77sss, 78w, 78x, Counsel, (312) 751–4945, TTD (312) ■ b. In paragraph (c), remove the phrase 80a–37, and 80b–11; 5 U.S.C. 504(c)(1). 751–4701. Sections 201.700 and 201.701 are also ‘‘, prescribes procurement regulations, SUPPLEMENTARY INFORMATION: Section enters into contracts, designates issued under sec. 916, Pub. L. 111–203, 124 Stat. 1376. 5(b) of the Railroad Retirement Act contracting officers, and makes (RRA) [45 U.S.C. 231d(b)] provides that * * * * * procurement determinations’’ and add a an application for any payment under period after the word ‘‘payments’’. § 201.59 [Amended] the Act ‘‘shall be made and filed in such ■ c. In paragraph (d), remove the phrase ■ 12. In § 201.59, remove the word manner and form as the Board may ‘‘As the Chief Operating Officer of the prescribe * * *’’ Currently, Part 217 of Commission, the Executive Director’’ ‘‘Comptroller’’ and add, in its place, the words ‘‘Chief Financial Officer’’. the Board’s regulations, which sets out and add, in its place, the phrase ‘‘The the rules governing applications made Chief Operating Officer’’; PART 204—RULES RELATING TO under the RRA, anticipates that an § 200.20c [Removed] DEBT COLLECTION application will include a signature on ■ paper, even where the application itself 5. Remove § 200.20c. Subpart B may be completed electronically. § 200.21 [Amended] In order to provide better service to ■ 13. The authority citation for Part 204, ■ our customers, the Board amends 6. In § 200.21(a), remove the words Subpart B, continues to read as follows: § 217.17 of its regulations in order to ‘‘Office of Administrative and Personnel Authority: 5 U.S.C. 5514, 5 CFR 550.1104. allow signature alternatives to the Management’’ and add, in their place, traditional pen-and-ink (‘‘wet’’) § 204.32 [Amended] the words ‘‘Office of Human signature. The Board changes the Resources’’. ■ 14. In § 204.32, in the definition of current title of § 217.17, ‘‘Who may sign § 200.24 [Amended] Program Official, remove the word an application’’ to ‘‘What is an ‘‘Comptroller’’ and add, in its place, the acceptable signature’’ and adds a new ■ 7. In § 200.24: words ‘‘Chief Financial Officer’’. subsection (f) to describe what may be ■ a. Remove the words ‘‘Office of the considered to be an acceptable Comptroller’’ in the heading and add, in § 204.34 [Amended] signature. The amendment adds two their place, the words ‘‘Office of ■ 15. In § 204.34(d), remove the words different types of acceptable signatures. Financial Management’’; ‘‘Comptroller’s office’’ and add, in their The first alternate method of signature ■ b. Remove the words ‘‘Associate place, the words ‘‘Office of Financial that the amendment to § 217.17 allows Executive Director of the Office of the Management’’. is the use of a personal identification Comptroller’’ and add, in their place, Dated: September 23, 2011. number (PIN) assigned by the agency. the words ‘‘Chief Financial Officer’’; By the Commission. The second alternate method is referred and Elizabeth M. Murphy, to as an ‘‘alternative signature’’ or ■ c. Remove the words ‘‘Executive ‘‘signature proxy.’’ The purpose of this Director’’ and add, in their place, the Secretary. amendment is to allow signature by words ‘‘Chief Operating Officer’’; [FR Doc. 2011–24964 Filed 9–28–11; 8:45 am] BILLING CODE 8011–01–P attestation. Attestation refers to an § 200.25 [Removed and Reserved] action taken by an employee of the Railroad Retirement Board (RRB) to ■ 8. Remove and reserve § 200.25. RAILROAD RETIREMENT BOARD confirm and annotate the RRB records of § 200.30–13 [Amended] (1) An applicant’s intent to file or ■ 9. In § 200.30–13 remove the words 20 CFR Part 217 complete an application or related form, (2) the applicant’s affirmation under ‘‘Associate Executive Director of the RIN 3220–AB64 Office of Financial Management’’ in the penalty of perjury that the information heading and introductory text and add, Application for Annuity or Lump Sum is correct, and (3) the applicant’s agreement to sign the application or in their place, the words ‘‘Chief AGENCY: Railroad Retirement Board. Financial Officer’’. related form. The Board expects that use ACTION: Final rule. of attestation to take RRA applications over the telephone will increase Subpart J—Classification and SUMMARY: The Railroad Retirement efficiency and be more convenient for Declassification of National Security Board (Board) amends its regulations to Information and Material RRB customers. allow alternative signature methods in Before deciding to propose this addition to the traditional pen-and-ink ■ 10a. The authority citation for Part amendment, the Board’s Office of or ‘‘wet’’ signature in order to 200, Subpart J, is revised to read as Programs obtained information about implement an electronic application follows: alternative signature methods used by process which will eventually eliminate the Social Security Administration Authority: 15 U.S.C. 77s; 11 U.S.C. 901, the need to retain paper applications 1109(a); E.O. 12356, 47 FR 14874, Apr. 6, (SSA), since it administers a retirement and make the application process more and disability program comparable to 1982; Information Security Oversight Office convenient for the individuals filing Directive No. 1 (47 FR 27836, June 25, 1982). the Board’s programs under the Railroad applications. Retirement Act. The Office of Programs § 200.503 [Amended] DATES: This rule will be effective also compared the current RRB ■ 10b. In § 200.503, remove the September 29, 2011. application taking process with a authority citation following Section ADDRESSES: Martha P. Rico, Secretary to process using attestation to identify the 503(b). the Board, Railroad Retirement Board, differences and determine how those

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differences affect the process. Based on Authority: 45 U.S.C. 231d and 45 U.S.C. DEPARTMENT OF THE TREASURY the information obtained from the 231f. comparison and from the SSA, it was Internal Revenue Service determined that attestation will reduce ■ 2. Section 217.17 is amended by our paper flow and handling and will revising the section heading and 26 CFR Part 301 work well in our current environment paragraph (a) and adding paragraph (f) [TD 9545] where the Board’s Field Service already to read as follows: completes most applications by RIN 1545–BG75 telephone. § 217.17 What is an acceptable signature. * * * * * Interest and Penalty Suspension Under both the current and amended Provisions Under Section 6404(g) of systems, the RRB claims representative (a) A claimant who is 18 years old or the Internal Revenue Code will identify a caller-applicant using our older, competent (able to handle his or existing protocol and complete an her own affairs), and physically able to Correction application by interviewing the caller sign the application, must sign in his or In rule document number 2011–21164 and entering the answers online into the her own handwriting, except as beginning on page 52259 through 52263 Application Express (APPLE) system. provided in paragraph (e) or paragraph in the issue of August 22, 2011, make APPLE is an online system that (f) of this section. A parent or a person the following corrections: automates the filing of applications for standing in place of a parent must sign 301.6404–4 [Corrected] retirement and survivor benefits and the application for a child who is not forwards the applications to the systems yet 18 years old, except as shown in ■ 1. On page 52262 in the second for payment. We now print out a copy paragraph (d) of this section. column, in § 301.6404–4(a)(7)(i) third of the completed application to send it paragraph, 15 lines from the bottom, the * * * * * to the applicant for signature and return. words ‘‘or Form 886–A’’ were Under attestation, we will instead use (f) An acceptable signature may inadvertently printed in italics. The defined scripts like SSA uses to confirm include: words should not have been italicized, the applicant’s intent to file; attest to the (1) A handwritten signature that and are corrected as follows, ‘‘Form reply by entering the answer in APPLE; complies with the rules set out in 886–A.’’ print the cover notice with penalty ■ 2. On page 52263 in the third column, clause and summary, and review it with paragraphs (a), (b), (c), (d), or (e) of this section; or in § 301.6404–4(c)(2)(ii) 11 lines down, the applicant over the telephone; release article number two (ii) was printed on the case in APPLE for processing after (2) In the case of an application being a separate line, above the word the telephone review of the cover notice taken and processed in the Railroad ‘‘Example.’’ It should appear directly is complete; and send the applicant a Retirement Board’s automated claims next to the word ‘‘Example.’’ It is cover notice and summary to keep. We system, an electronic signature, which corrected to appear as follows: (ii) will advise the applicant to review the shall consist of a personal identification Example. cover notice and summary upon receipt, number (PIN) assigned by the Railroad and contact the RRB promptly if the Retirement Board as described in the [FR Doc. C1–2011–21164 Filed 9–28–11; 8:45 am] applicant needs to make any application instructions; or BILLING CODE 1505–01–D corrections. (3) An alternative signature or Attestation will end the return of signature proxy acceptable to the application documents to our offices, ENVIRONMENTAL PROTECTION Railroad Retirement Board. An example reducing the volume of paper to be AGENCY sorted, assigned, reviewed, input, of an alternative signature is attestation, scanned and indexed by the RRB. which refers to the action taken by a 40 CFR Part 52 The Board, with the concurrence of Railroad Retirement Board (RRB) [EPA–R04–OAR–2010–0719–201144; FRL– the Office of Management and Budget, employee of confirming and annotating 9472–2] has determined that this is not a RRB records of the applicant’s intent to significant regulatory action under file or complete an application or Approval and Promulgation of Air Executive Order 12866, as amended. related form, the applicant’s affirmation Quality Implementation Plans; Ohio, Therefore, no regulatory impact analysis under penalty of perjury that the Kentucky, and Indiana; Cincinnati- is required. There are no changes to the information provided is correct, and the Hamilton Nonattainment Area; information collections associated with applicant’s agreement to sign the Determinations of Attainment of the Part 217. application or related form. 1997 Annual Fine Particulate Standards List of Subjects in 20 CFR Part 217 Dated: September 23, 2011. By Authority of the Board. AGENCY: Environmental Protection Railroad employees, Railroad Agency (EPA). Martha P. Rico, retirement. ACTION: Final rule. For the reasons set out in the Secretary to the Board. preamble, the Railroad Retirement [FR Doc. 2011–25108 Filed 9–28–11; 8:45 am] SUMMARY: EPA is determining that the Board amends title 20, chapter II, BILLING CODE P tri-state Cincinnati-Hamilton, Ohio- subchapter B, part 217 of the Code of Kentucky-Indiana, fine particulate Federal Regulations as follows: (PM2.5) nonattainment Area (hereafter referred to as ‘‘the Cincinnati Area’’ or PART 217—APPLICATION FOR ‘‘Area’’) has attained the 1997 annual ANNUITY OR LUMP SUM average PM2.5 national ambient air quality standards (NAAQS) and ■ 1. The authority citation for part 217 additionally, that the Area has attained continues to read as follows: the 1997 annual PM2.5 NAAQS by its

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applicable attainment date of April 5, Jackson Boulevard, Chicago, Illinois except for the Murray Road site in 2010. The Cincinnati Area is comprised 60604–3507. Mr. Summerhays’ Cincinnati. The Murray Road site had a of Butler, Clermont, Hamilton, and telephone number is (312) 886–6067. preliminary 2008–2010 design value of Warren Counties in Ohio; Boone, Mr. Summerhays can also be reached 15.1 mg/m3; however, the site was shut Campbell and Kenton Counties in via electronic mail at down in February of the first quarter of Kentucky; and a portion of Dearborn [email protected]. 2010 due to safety issues. The partial County in Indiana. These SUPPLEMENTARY INFORMATION: first quarter of 2010 data before the determinations of attainment are based monitor shut down showed the only upon quality-assured and certified I. What actions is EPA taking? data above the NAAQS for the 2008– ambient air monitoring data for the II. What are the effects of these actions? 2010 period. Approval was granted for 2007–2009 period showing that the Area III. What are EPA’s final actions? the site to be shut down because the IV. Statutory and Executive Order Reviews has monitored attainment of the 1997 Carthage Fire site registered a higher annual PM2.5 NAAQS. The requirements I. What actions is EPA taking? design value and is located for the Area to submit an attainment EPA is determining that the approximately a mile from the Murray demonstration and associated Cincinnati Area (comprised of Butler, Road site. A comparison of the 2007– reasonably available control measures Clermont, Hamilton, and Warren 2009 data showed the sites were well (RACM), a reasonable further progress Counties in Ohio; Boone, Campbell and correlated with each other. The (RFP) plan, contingency measures, and Kenton Counties in Kentucky; and a comment period closed on July 5, 2011. other planning State Implementation portion of Dearborn County in Indiana) No comments were received in response Plan (SIP) revisions related to has attained the 1997 annual PM to the NPR. attainment of the standard shall be 2.5 NAAQS. This determination is based II. What are the effects of these actions? suspended so long as the Area continues upon quality-assured, quality-controlled to attain the 1997 annual PM2.5 NAAQS. This final action, in accordance with and certified ambient air monitoring 40 CFR 51.1004(c), suspends the DATES: Effective Date: This final rule is data that shows the Area has monitored effective on October 31, 2011. requirements for this Area to submit attainment of the 1997 annual PM2.5 attainment demonstrations, associated ADDRESSES: EPA has established a NAAQS based on the 2007–2009 data RACM, RFP plans, contingency docket for this action under Docket ID and is continuing to attain with 2008– measures, and other planning SIPs Number EPA–R04–OAR–2010–0719. All 2010 data. EPA is also determining, in related to attainment of the 1997 annual documents in the docket are listed in accordance with EPA’s PM2.5 PM2.5 NAAQS as long as this Area the http://www.regulations.gov Web Implementation Rule of April 25, 2007 continues to meet the 1997 annual PM2.5 site. Although listed in the electronic (72 FR 20664), that the Cincinnati Area NAAQS. Finalizing this action does not docket, some information is not publicly has attained the 1997 annual PM2.5 constitute a redesignation of the available, i.e., confidential business NAAQS by its applicable attainment Cincinnati Area to attainment for the information (CBI) or other information date of April 5, 2010. 1997 annual PM2.5 NAAQS under whose disclosure is restricted by statute. Other specific requirements of the section 107(d)(3) of the Clean Air Act Certain other material, such as determination and the rationale for (CAA). Further, finalizing this action copyrighted material, is not placed on EPA’s action are explained in the notice does not involve approving the Internet and will be publicly of proposed rulemaking (NPR) maintenance plans for the Area as available only in hard copy form. published on June 3, 2011 (76 FR required under section 175A of the Publicly available docket materials are 32110). For summary purposes, the CAA, nor does it involve a available either electronically through Cincinnati Area did not meet the 75 determination that the Area has met all http://www.regulations.gov or in hard percent completeness criteria in three requirements for a redesignation. copy for public inspection during cases. The Northern Kentucky In addition, EPA is making a separate normal business hours at the Regulatory University site began operation on and independent determination that the Development Section, Air Planning August 1, 2007, and thus did not obtain Area has attained the 1997 annual PM2.5 Branch, Air, Pesticides and Toxics complete data for the first three quarters standard by its applicable attainment Management Division, U.S. of 2007. This would not be considered date (April 5, 2010), thereby satisfying Environmental Protection Agency, an incomplete record due to it being a EPA’s requirement pursuant to section Region 4, 61 Forsyth Street, SW., new site. Nevertheless, the average 179(c)(1) of the CAA to make such a Atlanta, Georgia 30303–8960. concentration for the remainder of 2007 determination based on the Area’s air FOR FURTHER INFORMATION CONTACT: In and all of 2008 and 2009 was 12.5 quality data as of the attainment date. Region 4, Joel Huey or Sara Waterson, micrograms per meter cubed (mg/m3). Regulatory Development Section, Air Scarlet Oaks School ended operation III. What are EPA’s final actions? Planning Branch, Air, Pesticides and December 31, 2008 and Hook Field EPA is determining that the Toxics Management Division, U.S. Airport ended operation December 31, Cincinnati Area has data indicating it Environmental Protection Agency, 2007. The Scarlet Oaks School site has attained the 1997 annual PM2.5 Region 4, 61 Forsyth Street, SW., monitored an average concentration of NAAQS, and additionally, that the Area Atlanta, Georgia 30303–8960. Mr. 14.8 mg/m3 in 2007, and an annual has attained the standard by its Huey’s telephone number is (404) 562– average concentration in 2008 of 13.3 applicable attainment date (April 5, 9104. Mr. Huey can also be reached via mg/m3. The Hook Field Airport site 2010). These determinations are based electronic mail at [email protected]. monitored an annual average upon quality-assured, quality- Ms. Waterson may be reached by phone concentration of 14.6 mg/m3 for 2007. controlled, and certified ambient air at (404) 562–9061 or via electronic mail These values are below the NAAQS. monitoring data showing that this Area at [email protected]. In Region 5, The complete 2010 year had not been has monitored attainment of the 1997 John Summerhays, Attainment Planning certified at the time of the NPR; annual PM2.5 NAAQS during the period and Maintenance Section, Air Programs therefore, the data were not considered 2007–2009 and continues to monitor Branch (AR–18J), U.S. Environmental complete for 2010. All of the 2008–2010 attainment during the 2008–2010 Protection Agency, Region 5, 77 West design values are below 15.0 mg/m3, period. This final action, in accordance

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with 40 CFR 51.1004(c), will suspend (65 FR 67249, November 9, 2000), Subpart P—Indiana the requirements for this Area to submit because the SIP is not approved to apply attainment demonstrations, associated in Indian country located in the state, ■ 2. Section 52.774 is amended by RACM, RFP plans, contingency and EPA notes that it will not impose designating the existing text as measures, and other planning SIPs substantial direct costs on tribal paragraph (a) and by adding paragraph related to attainment of the 1997 annual governments or preempt tribal law. (b) to read as follows: PM2.5 NAAQS as long as the Area The Congressional Review Act, 5 § 52.774 Determination of attainment. continues to meet the 1997 annual PM2.5 U.S.C. 801 et seq., as added by the Small NAAQS. These actions are being taken * * * * * Business Regulatory Enforcement (b) Based upon EPA’s review of the air pursuant to section 179(c)(1) of the CAA Fairness Act of 1996, generally provides quality data for the 3-year period 2007– and are consistent with the CAA and its that before a rule may take effect, the 2009, EPA determined that the implementing regulations. agency promulgating the rule must Cincinnati-Hamilton, Ohio, Kentucky, IV. Statutory and Executive Order submit a rule report, which includes a and Indiana PM2.5 nonattainment Area Reviews copy of the rule, to each House of the attained the 1997 annual PM2.5 NAAQS Congress and to the Comptroller General These actions make a determination by the applicable attainment date of of the United States. EPA will submit a of attainment based on air quality, and April 5, 2010. Therefore, EPA has met report containing this action and other will result in the suspension of certain the requirement pursuant to CAA required information to the U.S. Senate, federal requirements, and it will not section 179(c) to determine, based on the U.S. House of Representatives, and impose additional requirements beyond the Area’s air quality as of the the Comptroller General of the United those imposed by state law. For that attainment date, whether the Area States prior to publication of the rule in reason, this action: attained the standard. EPA also • Are not a ‘‘significant regulatory the Federal Register. A major rule determined that the Cincinnati- action’’ subject to review by the Office cannot take effect until 60 days after it Hamilton, Ohio, Kentucky, and Indiana is published in the Federal Register. of Management and Budget under PM2.5 nonattainment Area is not subject Executive Order 12866 (58 FR 51735, This action is not a ‘‘major rule’’ as to the consequences of failing to attain October 4, 1993); defined by 5 U.S.C. 804(2). pursuant to section 179(d). • Do not impose an information Under section 307(b)(1) of the CAA, ■ 3. Section 52.776 is amended by collection burden under the provisions petitions for judicial review of this adding paragraph (x) to read as follows: of the Paperwork Reduction Act (44 action must be filed in the United States U.S.C. 3501 et seq.); Court of Appeals for the appropriate § 52.776 Control strategy: Particulate • Are certified as not having a circuit by November 28, 2011. Filing a matter. significant economic impact on a petition for reconsideration by the * * * * * substantial number of small entities Administrator of this final rule does not (x) Determination of Attainment. EPA under the Regulatory Flexibility Act affect the finality of this action for the has determined, as of September 29, (5 U.S.C. 601 et seq.); purposes of judicial review nor does it 2011, that based upon 2007–2009 air • Do not contain any unfunded extend the time within which a petition quality data, the Cincinnati-Hamilton, mandate or significantly or uniquely for judicial review may be filed, and Ohio, Kentucky, and Indiana, affect small governments, as described shall not postpone the effectiveness of nonattainment Area has attained the in the Unfunded Mandates Reform Act such rule or action. This action may not 1997 annual PM2.5 NAAQS. This of 1995 (Pub. L. 104–4); be challenged later in proceedings to determination, in accordance with 40 • Do not have Federalism enforce its requirements. (See section CFR 52.1004(c), suspends the implications as specified in Executive 307(b)(2)). requirements for this Area to submit an Order 13132 (64 FR 43255, August 10, For purposes of judicial review, the attainment demonstration, associated 1999); reasonably available control measures, a • Are not an economically significant two determinations approved by today’s action are severable from one another. reasonable further progress plan, regulatory action based on health or contingency measures, and other safety risks subject to Executive Order List of Subjects in 40 CFR Part 52 planning SIPs related to attainment of 13045 (62 FR 19885, April 23, 1997); the standard for as long as this Area • Environmental protection, Air Are not a significant regulatory continues to meet the 1997 annual PM2.5 action subject to Executive Order 13211 pollution control, Incorporation by NAAQS. (66 FR 28355, May 22, 2001); reference, Intergovernmental relations, • Are not subject to requirements of Particulate matter, Reporting and Subpart S—Kentucky Section 12(d) of the National recordkeeping requirements. Technology Transfer and Advancement Dated: August 18, 2011. ■ 4. Section 52.929 is amended by Act of 1995 (15 U.S.C. 272 note) because Gwendolyn Keyes Fleming, adding paragraph (c) to read as follows: application of those requirements would be inconsistent with the CAA; and Regional Administrator, Region 4. § 52.929 Determination of attainment. • Do not provide EPA with the Dated: September 12, 2011. * * * * * discretionary authority to address, as Susan Hedman, (c) Based upon EPA’s review of the air appropriate, disproportionate human Regional Administrator, Region 5. quality data for the 3-year period 2007– health or environmental effects, using 2009, EPA determined that the practicable and legally permissible 40 CFR part 52 is amended as follows: Cincinnati-Hamilton, Ohio, Kentucky, methods, under Executive Order 12898 and Indiana PM nonattainment Area PART 52—[AMENDED] 2.5 (59 FR 7629, February 16, 1994). In attained the 1997 annual PM2.5 NAAQS addition, this 1997 PM2.5 clean NAAQS by the applicable attainment date of ■ data determination for the Cincinnati 1. The authority citation for part 52 April 5, 2010. Therefore, EPA has met Area does not have tribal implications continues to read as follows: the requirement pursuant to CAA as specified by Executive Order 13175 Authority: 42 U.S.C. 7401 et seq. section 179(c) to determine, based on

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the Area’s air quality as of the by the applicable attainment date of 3. Mail or deliver: Andrew Steckel attainment date, whether the Area April 5, 2010. Therefore, EPA has met (Air–4), U.S. Environmental Protection attained the standard. EPA also the requirement pursuant to CAA Agency Region IX, 75 Hawthorne Street, determined that the Cincinnati- section 179(c) to determine, based on San Francisco, CA 94105–3901. Hamilton, Ohio, Kentucky, and Indiana the Area’s air quality as of the Instructions: All comments will be PM2.5 nonattainment Area is not subject attainment date, whether the Area included in the public docket without to the consequences of failing to attain attained the standard. EPA also change and may be made available pursuant to section 179(d). determined that the Cincinnati- online at http://www.regulations.gov, Hamilton, Ohio, Kentucky, and Indiana including any personal information ■ 5. Section 52.933 is amended by PM2.5 nonattainment Area is not subject provided, unless the comment includes adding paragraph (e) to read as follows: to the consequences of failing to attain Confidential Business Information (CBI) § 52.933 Control Strategy: Sulfur oxides pursuant to section 179(d). or other information whose disclosure is and particulate matter. [FR Doc. 2011–24811 Filed 9–28–11; 8:45 am] restricted by statute. Information that * * * * * BILLING CODE 6560–50–P you consider CBI or otherwise protected (e) Determination of Attainment. EPA should be clearly identified as such and has determined, as of September 29, should not be submitted through http:// 2011, that based upon 2007–2009 air ENVIRONMENTAL PROTECTION www.regulations.gov or e-mail. http:// quality data, the Cincinnati-Hamilton, AGENCY www.regulations.gov is an ‘‘anonymous Ohio-Kentucky-Indiana nonattainment access’’ system, and EPA will not know 40 CFR Part 52 Area has attained the 1997 annual PM2.5 your identity or contact information NAAQS. This determination, in [EPA–R09–OAR–2011–0561; FRL–9469–1] unless you provide it in the body of accordance with 40 CFR 52.1004(c), your comment. If you send e-mail suspends the requirements for this Area Revisions to the California State directly to EPA, your e-mail address to submit an attainment demonstration, Implementation Plan, Santa Barbara will be automatically captured and associated reasonably available control Air Pollution Control District, included as part of the public comment. measures, a reasonable further progress Sacramento Municipal Air Quality If EPA cannot read your comment due plan, contingency measures, and other Management District and South Coast to technical difficulties and cannot planning SIPs related to attainment of Air Quality Management District contact you for clarification, EPA may the standard for as long as this Area not be able to consider your comment. AGENCY: Environmental Protection continues to meet the 1997 annual PM2.5 Electronic files should avoid the use of NAAQS. Agency (EPA). special characters, any form of ACTION: Direct final rule. encryption, and be free of any defects or Subpart KK—Ohio viruses. SUMMARY: EPA is taking direct final Docket: Generally, documents in the ■ 6. Section 52.1880 is amended by action to approve revisions to the Santa docket for this action are available adding paragraph (o) to read as follows: Barbara Air Pollution Control District electronically at http:// (SBAPCD), Sacramento Municipal Air www.regulations.gov and in hard copy § 52.1880 Control strategy: Particulate Quality Management District at EPA Region IX, 75 Hawthorne Street, matter. (SMAQMD) and South Coast Air San Francisco, California. While all * * * * * Quality Management District documents in the docket are listed at (o) Determination of Attainment. EPA (SCAQMD) portions of the California http://www.regulations.gov, some has determined, as of September 29, State Implementation Plan (SIP). These information may be publicly available 2011, that based upon 2007–2009 air revisions concern volatile organic only at the hard copy location (e.g., quality data, the Cincinnati-Hamilton, compound (VOC) emissions from copyrighted material, large maps), and Ohio-Kentucky-Indiana nonattainment solvent cleaning machines and solvent some may not be publicly available in Area has attained the 1997 annual PM2.5 cleaning operations and oil and gas either location (e.g., CBI). To inspect the NAAQS. This determination, in production wells. We are approving hard copy materials, please schedule an accordance with 40 CFR 52.1004(c), local rules that regulate these emission appointment during normal business suspends the requirements for this Area sources under the Clean Air Act as hours with the contact listed in the FOR to submit an attainment demonstration, amended in 1990 (CAA or the Act). FURTHER INFORMATION CONTACT section. associated reasonably available control DATES: This rule is effective on FOR FURTHER INFORMATION CONTACT: measures, a reasonable further progress November 28, 2011 without further plan, contingency measures, and other Adrianne Borgia, EPA Region IX, (415) notice, unless EPA receives adverse 972–3576, [email protected]. planning SIPs related to attainment of comments by October 31, 2011. the standard for as long as this Area If we receive such comments, we will SUPPLEMENTARY INFORMATION: continues to meet the 1997 annual PM2.5 publish a timely withdrawal in the Throughout this document, ‘‘we,’’ ‘‘us,’’ NAAQS. Federal Register to notify the public and ‘‘our’’ refer to EPA. ■ 7. Section 52.1892 is amended by that this direct final rule will not take Table of Contents adding paragraph (c) to read as follows: effect. ADDRESSES: Submit comments, I. The State’s Submittal § 52.1892 Determination of attainment. identified by docket number EPA–R09– A. What rules did the State submit? * * * * * OAR–2011–0561, by one of the B. Are there other versions of these rules? C. What is the purpose of the submitted (c) Based upon EPA’s review of the air following methods: rules? quality data for the 3-year period 2007– 1. Federal eRulemaking Portal: http:// II. EPA’s Evaluation and Action 2009, EPA determined that the www.regulations.gov. Follow the on-line A. How is EPA evaluating the rules? Cincinnati-Hamilton, Ohio-Kentucky- instructions. B. Do the rules meet the evaluation Indiana PM2.5 nonattainment Area 2. E-mail: [email protected]. criteria? attained the 1997 annual PM2.5 NAAQS

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C. EPA Recommendations To Further I. The State’s Submittal adopted by the local air agencies and Improve the Rules submitted by the California Air A. What rules did the State submit? D. Public Comment and Final Action Resources Board (CARB). III. Statutory and Executive Order Reviews Table 1 lists the rules we are approving with the dates that they were

TABLE 1—SUBMITTED RULES

Local agency Rule No. Rule title Amended Submitted

SBAPCD ...... 321 Solvent Cleaning Machines and Solvent Cleaning ...... 9/20/10 ...... 4/5/11 SMAQMD ...... 466 Solvent Cleaning...... 10/28/10 ...... 4/5/11 SCAQMD ...... 1171 Solvent Cleaning Operations ...... 2/1/08 ...... 4/5/11 SCAQMD ...... 1148.1 Oil and Gas Production Wells ...... Adopted 3/5/04 ...... 1/10/10

On February 4, 2010 (1148.1) and May regulates an ozone nonattainment area comments by October 31, 2011, we will 6, 2011 (321, 466 and 1171), EPA (see 40 CFR part 81), so SMAQMD Rule publish a timely withdrawal in the determined that the four submittals met 466 and SCAQMD Rule 1171 and Rule Federal Register to notify the public the completeness criteria in 40 CFR Part 1148.1 must fulfill RACT. that the direct final approval will not 51 Appendix V, which must be met Guidance and policy documents that take effect and we will address the before formal EPA review. we use to evaluate enforceability and comments in a subsequent final action RACT requirements consistently based on the proposal. If we do not B. Are there other versions of these include the following: receive timely adverse comments, the rules? 1. ‘‘Issues Relating to VOC Regulation direct final approval will be effective We approved an earlier version of Cutpoints, Deficiencies, and without further notice on November 28, SBAPCD Rule 321 into the SIP on April Deviations,’’ EPA, May 25, 1988 (the 2011. This will incorporate these rules 2, 1998 (64 FR 15922). We approved an Bluebook). into the federally enforceable SIP. 2. ‘‘Guidance Document for Correcting earlier version of SMAQMD Rule 466 Please note that if EPA receives Common VOC & Other Rule into the SIP on May 5, 2010 (75 FR adverse comment on an amendment, 24406). We approved an earlier version Deficiencies,’’ EPA Region 9, August 21, 2001 (the Little Bluebook). paragraph, or section of this rule and if of SCAQMD Rule 1171 into the SIP on that provision may be severed from the July 1, 2005 (70 FR 38023). There are no 3. CARB’s Consumer Products Regulation, Title 17, California Code of remainder of the rule, EPA may adopt previous versions of SCAMQD Rule as final those provisions of the rule that 1148.1 in the SIP. Regulations (CCR), Division 3, Chapter 1, Subchapter 8.5, Article 2, Sections are not the subject of an adverse C. What is the purpose of the submitted 94507–94517 comment. rules? 4. EPA’s model VOC rule guidance III. Statutory and Executive Order VOCs help produce ground-level titled, ‘‘Model Volatile Organic Reviews ozone and smog, which harm human Compound Rules for Reasonably health and the environment. Section Available Control Technology’’ (June Under the Clean Air Act, the 110(a) of the CAA requires States to 1992). Administrator is required to approve a submit regulations that control VOC SIP submission that complies with the B. Do the rules meet the evaluation provisions of the Act and applicable emissions. SBAPCD Rule 321, criteria? SMAQMD Rule 466, SCAQMD Rule Federal regulations. 42 U.S.C. 7410(k); 1171 and SCAQMD 1148.1 limit We believe these rules are consistent 40 CFR 52.02(a). Thus, in reviewing SIP emissions of VOC from solvent cleaning with the relevant policy and guidance submissions, EPA’s role is to approve machines, the application of solvents, regarding enforceability, RACT and SIP State choices, provided that they meet and from oil and gas production wells. relaxations. The TSDs have more the criteria of the Clean Air Act. EPA’s technical support documents information on our evaluation. Accordingly, this action merely approves State law as meeting Federal (TSDs) have more information about C. EPA Recommendations to Further requirements and does not impose these rules. Improve the Rules additional requirements beyond those II. EPA’s Evaluation and Action The TSDs describe additional rule imposed by State law. For that reason, revisions that we recommend for the A. How is EPA evaluating the rules? this action: next time the local agency modifies the • Is not a ‘‘significant regulatory Generally, SIP rules must be rules. enforceable (see section 110(a) of the action’’ subject to review by the Office Act), must require Reasonably Available D. Public Comment and Final Action of Management and Budget under Control Technology (RACT) for each As authorized in section 110(k)(3) of Executive Order 12866 (58 FR 51735, category of sources covered by a Control the Act, EPA is fully approving the October 4, 1993); Techniques Guidelines (CTG) document submitted rules because we believe they • Does not impose an information as well as each major source in fulfill all relevant requirements. We do collection burden under the provisions nonattainment areas (see sections not think anyone will object to this of the Paperwork Reduction Act (44 182(a)(2) and (b)(2)), and must not relax approval, so we are finalizing it without U.S.C. 3501 et seq.); existing requirements (see sections proposing it in advance. However, in • Is certified as not having a 110(l) and 193). SBAPCD regulates an the Proposed Rules section of this significant economic impact on a unclassifiable/attainable area for ozone, Federal Register, we are simultaneously substantial number of small entities SMAQMD regulates an ozone proposing approval of the same under the Regulatory Flexibility Act nonattainment area and SCAQMD submitted rules. If we receive adverse (5 U.S.C. 601 et seq.);

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• Does not contain any unfunded comment in the proposed rulemaking. DEPARTMENT OF HEALTH AND mandate or significantly or uniquely This action may not be challenged later HUMAN SERVICES affect small governments, as described in proceedings to enforce its in the Unfunded Mandates Reform Act requirements (see section 307(b)(2)). Centers for Medicare and Medicaid of 1995 (Pub. L. 104–4); • Does not have Federalism List of Subjects in 40 CFR Part 52 42 CFR Part 411 implications as specified in Executive Order 13132 (64 FR 43255, August 10, Environmental protection, Air Exclusions From Medicare and 1999); pollution control, Incorporation by Limitations on Medicare Payment • Is not an economically significant reference, Reporting and recordkeeping CFR Correction regulatory action based on health or requirements, Volatile organic safety risks subject to Executive Order compounds. In Title 42 of the Code of Federal 13045 (62 FR 19885, April 23, 1997); Dated: September 7, 2011. Regulations, Parts 400 to 413, revised as • Is not a significant regulatory action of October 1, 2010, make the following Jared Blumenfeld, subject to Executive Order 13211 (66 FR corrections: Regional Administrator, Region IX. 28355, May 22, 2001); ■ 1. On page 472, in § 411.353, in • Is not subject to requirements of Part 52, Chapter I, Title 40 of the Code paragraph (g)(1)(i), remove the word Section 12(d) of the National of Federal Regulations is amended as ‘‘complied’’ and add ‘‘complies’’ in its Technology Transfer and Advancement follows: place. Act of 1995 (15 U.S.C. 272 note) because ■ application of those requirements would 2. On page 483, in § 411.357: PART 52 [AMENDED] ■ a. In paragraph (b)(4)(ii)(A), remove be inconsistent with the Clean Air Act; the word ‘‘by’’ and add ‘‘through’’ in its and ■ 1. The authority citation for Part 52 • Does not provide EPA with the place, and continues to read as follows: ■ discretionary authority to address b. In paragraph (b)(4)(ii)(B), remove disproportionate human health or Authority: 42 U.S.C. 7401 et seq. the phrase ‘‘between the parties’’ and environmental effects with practical, add ‘‘by the lessor to the lessee’’ in its appropriate, and legally permissible Subpart F—California place. methods under Executive Order 12898 ■ 3. On page 488, in § 411.357, in (59 FR 7629, February 16, 1994). ■ 2. Section 52.220, is amended by paragraph (l)(3)(ii), remove the phrase In addition, this rule does not have adding paragraphs (378)(i)(A)(3), and ‘‘between the parties’’ and add ‘‘by the tribal implications as specified by (c)(388)(i)(A)(5), (C), (D) and to read as lessor to the lessee’’ in its place. Executive Order 13175 (65 FR 67249, follows: ■ 4. On page 490, in § 411.357: November 9, 2000), because the SIP is ■ a. Remove paragraphs (p)(1)(ii) and not approved to apply in Indian country § 52.220 Identification of plan. (iii); located in the State, and EPA notes that * * * * * ■ b. Designate the last sentence of it will not impose substantial direct (c) * * * (p)(1)(i) introductory text as paragraph costs on tribal governments or preempt (p)(1)(ii) introductory text; tribal law. (378) * * * ■ c. In new paragraph (p)(1)(ii)(A), The Congressional Review Act, 5 (i) * * * remove the phrase ‘‘performed or’’ and U.S.C. 801 et seq., as added by the Small (A) * * * add ‘‘performed on or’’ in its place; and Business Regulatory Enforcement ■ d. In new paragaph (p)(1)(ii)(B), (3) Rule 1148.1, ‘‘Oil and Gas Fairness Act of 1996, generally provides remove the phrase ‘‘between the that before a rule may take effect, the Production Wells,’’ adopted on March 5, parties’’ and add ‘‘by the lessor to the agency promulgating the rule must 2004. lessee’’ in its place. submit a rule report, which includes a * * * * * [FR Doc. 2011–25286 Filed 9–28–11; 8:45 am] copy of the rules, to each House of the (388) * * * BILLING CODE 1505–01–D Congress and to the Comptroller General of the United States. EPA will submit a (i) * * * report containing this action and other (A) * * * FEDERAL COMMUNICATIONS required information to the U.S. Senate, (5) Rule 1171, ‘‘Solvent Cleaning COMMISSION the U.S. House of Representatives, and Operations,’’ amended February 1, 2008. the Comptroller General of the United 47 CFR Part 61 States prior to publication of the rule in * * * * * the Federal Register. A major rule (C) Santa Barbara County Air Tariffs cannot take effect until 60 days after it Pollution Control District. CFR Correction is published in the Federal Register. (1) Rule 321, ‘‘Solvent Cleaning This action is not a ‘‘major rule’’ as Machines and Solvent Cleaning,’’ In Title 47 of the Code of Federal defined by 5 U.S.C. 804(2). revised September 20, 2010. Regulations, Parts 40 to 69, revised as of Parties with objections to this direct October 1, 2010, on page 189, in § 61.3, final rule are encouraged to file a (D) Sacramento Metropolitan Air redesignate paragraphs (aa) through (zz) comment in response to the parallel Quality Management District. as paragraphs (bb) through (aaa), and notice of proposed rulemaking for this (1) Rule 466, ‘‘Solvent Cleaning,’’ reinstate old paragraph (z) as paragraph action published in the Proposed Rules amended October 28, 2010. (aa) to read as follows: section of today’s Federal Register, * * * * * § 61.3 Definitions. rather than file an immediate petition [FR Doc. 2011–24688 Filed 9–28–11; 8:45 am] for judicial review of this direct final * * * * * rule, so that EPA can withdraw this BILLING CODE 6560–50–P (aa) Other participating carrier. A direct final rule and address the carrier subject to the Act that publishes

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a tariff containing rates and regulations DEPARTMENT OF COMMERCE partially approved by NMFS on behalf applicable to the portion or through of the Secretary of Commerce service it furnishes in conjunction with National Oceanic and Atmospheric (Secretary). A proposed rule to another subject carrier. Administration implement the measures in Amendment * * * * * 3 published in the Federal Register on 50 CFR Part 648 [FR Doc. 2011–25201 Filed 9–28–11; 8:45 am] July 6, 2011 (76 FR 39369), with public comments accepted through August 5, BILLING CODE 1505–01–D [Docket No. 100903433–1531–02] 2011. Details concerning the RIN 0648–BA22 development of Amendment 3 were contained in the preamble of the Fisheries of the Northeastern United DEPARTMENT OF THE INTERIOR proposed rule and are not repeated here. States; Atlantic Deep-Sea Red Crab; A Notice of Availability (NOA) for Amendment 3 Fish and Wildlife Service Amendment 3 was published in the AGENCY: National Marine Fisheries Federal Register on June 22, 2011 (76 50 CFR Part 32 Service (NMFS), National Oceanic and FR 36511), with public comments Atmospheric Administration (NOAA), accepted through August 22, 2011. Amendment 3 was initiated to bring Hunting and Fishing Commerce. the Red Crab FMP into compliance with CFR Correction ACTION: Final rule. the Magnuson-Stevens Act and establish SUMMARY: This final rule implements a framework for an ACL and AMs. Red In Title 50 of the Code of Federal crab is a data-poor stock and, in the Regulations, Parts 18 to 199, revised as measures that were approved in Amendment 3 to the Atlantic Deep-Sea absence of better scientific information, of October 1, 2010, on page 448, in Red Crab Fishery Management Plan the SSC recommended setting the § 32.60, in the Ernest F. Hollings ACE (FMP). The New England Fishery acceptable biological catch (ABC) equal Basin National Wildlife Refuge, Management Council (Council) to the long-term (1974–2008) average reinstate paragraph D, to read as developed Amendment 3 to bring the landings of the directed red crab fishery follows: FMP into compliance with the annual (3.91 million lb; 1,774 mt). The SSC determined that the results from the § 32.60 South Carolina. catch limit (ACL) and accountability measure (AM) requirements of the December 2008 Data Poor Stocks * * * * * Magnuson-Stevens Fishery Working Group were an underestimate Conservation and Management Act of the maximum sustainable yield Ernest F. Hollings ACE Basin National (MSY) for red crab, but could not Wildlife Refuge (Magnuson-Stevens Act). This rule establishes the mechanisms for determine by how much, so the SSC did * * * * * specifying an ACL and AMs and sets the not recommend an estimate of MSY. As a result, the MSY estimate in the FMP ■ total allowable landings (TAL) for red D. Sport Fishing. We allow fishing on was rejected, but a new estimate could designated areas of the refuge in crab for the 2011–2013 fishing years (FY). NMFS disapproved two proposed not be determined. Because the SSC accordance with State regulations could not determine MSY, a new value subject to the following conditions: measures in Amendment 3. This final rule implements additional management for optimum yield (OY) could not be ■ 1. We allow fishing in impounded measures to promote efficiency in the developed. The overfishing limit (OFL) waters contained within dikes and red crab fishery. is an estimate of the catch level above levees in the Beaufort County portion of which overfishing is occurring, but DATES: This rule is effective September based on the available information, the the refuge annually from April 1 29, 2011. through August 31 during daylight SSC determined that an OFL could not ADDRESSES: An environmental hours. We close fishing during all be estimated for the red crab fishery at assessment (EA) was prepared for remaining times within all refuge- this time. The SSC concluded that Amendment 3 that describes the impounded waters. scientific uncertainty is accounted for proposed action and other considered by using the precautionary approach of ■ 2. We prohibit boat use within refuge- alternatives, and provides a thorough the status quo, so setting ACL equal to impounded waters. We only allow bank analysis of the impacts of the proposed ABC is appropriate. The SSC also fishing. measures and alternatives. Copies of concluded that the undeterminable level ■ 3. We only allow hook and line sport Amendment 3, including the EA and the of discards associated with the long- fishing utilizing rod and reel or pole. Initial Regulatory Flexibility Analysis term average landings is sustainable, (IRFA), are available on request from ■ 4. We only open access into refuge and that setting the TAL equal to ACL Paul J. Howard, Executive Director, New is also appropriate. areas to fishing by foot or bicycle. England Fishery Management Council, * * * * * 50 Water Street, Newburyport, MA Disapproved Measures [FR Doc. 2011–25199 Filed 9–28–11; 8:45 am] 01950. These documents are also 1. Modification to Trap Limit BILLING CODE 1505–01–D available online at http:// Restrictions www.nefmc.org. Changing the trap limit regulations to FOR FURTHER INFORMATION CONTACT: depth-based trap limits as proposed by Moira Kelly, Fishery Policy Analyst, the Council would be unenforceable and (978) 281–9218; fax: (978) 281–9135. inconsistent with the policy of the SUPPLEMENTARY INFORMATION: Magnuson-Stevens Act that the management program be based on the Background Federal capabilities in carrying out This final rule implements approved enforcement (Magnuson-Stevens Act measures in Amendment 3, which was section 2(c)(3)). Depth-based provisions

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are impractical for enforcement because based on the ABC control rule.’’ The overages of the ACL. Amendment 3 the enforcement agent would have to NS1 guidelines further state that ‘‘ABC implements both proactive and reactive witness the deployment of traps beyond may not exceed OFL,’’ and that ‘‘the AMs for the red crab fishery. The the regulated depth range and/or determination of ABC should be based, proactive AM grants the NMFS Regional witness the at-sea retrieval of the traps when possible, on the probability that Administrator the authority to close the to determine compliance. an actual catch equal to a stock’s ABC red crab fishery when the TAL is would result in overfishing.’’ These projected to be harvested. The reactive 2. Prohibition on Landing Female Red guidelines also require that the AM is a pound-for-pound payback of Crab Council’s ABC control rule be based on any overage, should the TAL be Removing the prohibition on landing scientific advice provided by its SSC exceeded. In any year in which the ACL female red crabs, contingent upon a and that the SSC recommend the ABC and TAL are not equal, if the ACL is recommendation from the SSC, would to the Council. exceeded, the amount of that overage be inconsistent with National Standard The SSC, at its March 16, 2010, not already deducted from the TAL (e.g., 2 of the Magnuson-Stevens Act and meeting, determined that the available higher than expected discards, or an administratively confusing. The SSC information for red crab provided an unexpected increase in incidental determined that there were insufficient insufficient basis on which to landings by vessels with open access data to support removing the existing recommend an ABC control rule, and red crab permits) will be deducted from prohibition at this time and, because all that ‘‘an interim ABC based on long- the subsequent single fishing year’s of the catch recommendations were term average landings is safely below an ACL. based on the long-term average landings overfishing threshold and adequately of the male-only directed fishery, the accounts for scientific uncertainty.’’ The 4. FYs 2011–2013 Specifications SSC recommended the status quo as a SSC reviewed information on historical The following specifications will be sustainable approach. Amendment 3 dead discards of red crab in the directed in effect for FYs 2011–2013: proposed to remove the prohibition on trap fishery and in bycatch fisheries at landing female red crab only if the SSC its June 22, 2010, meeting in an effort to mt Million lb approved a landing limit; however, the recommend an ABC that includes both amendment did not specify how NMFS landings and dead discards. The SSC MSY ...... undetermined .. undetermined. OFL ...... undetermined .. undetermined. should implement and monitor a mixed- determined that there was insufficient information to specify dead discards, OY ...... undetermined .. undetermined. sex fishery. In addition, a framework ABC ...... 1,775 ...... 3.91. adjustment would be necessary to but that the long-term average landings, ACL ...... 1,775 ...... 3.91. implement management measures, and the presumed discarding practices TAL ...... 1,775 ...... 3.91. including the ACL framework, for associated with those landings, were allowing the landing of female red crab sustainable, and maintained its 5. TAL; Eliminate DAS regardless of the approval of this recommendation of specifying the measure in Amendment 3. interim red crab ABC in terms of This measure replaces the DAS and landings only. Based on this approach, target TAC management program with a Approved Measures the long-term average landings for TAL. This simplifies the management 1. Biological and Management 1974–2008 result in an ABC of 3.91 measures for red crab, provides Reference Points million lb (1,775 mt), represented in increased flexibility to the red crab fleet, terms of commercial landings. and ensures more accurate accounting The biological and management of the catch limits and monitoring of the reference points currently in the Red 2. ACL catch. Crab FMP are used to determine if The Magnuson-Stevens Act, under 6. Eliminate Trip Limits overfishing is occurring or if the stock section 303(a)(15), requires that any is overfished. However, these reference FMP establish a mechanism for Red crab vessels qualified for a trip points are not sufficient to comply with specifying ACLs at a level that prevents limit during the initial limited access the Magnuson-Stevens Act and the overfishing. The NS1 guidelines further qualification process. The FMP National Standard 1 (NS1) guidelines. state that the ACL for a given stock or specified a trip limit of 75,000 lb As a result, the Council intended to stock complex cannot exceed the ABC, (34,019 kg), unless a vessel owner could establish new estimates for MSY, OY, that it serves as the basis for invoking demonstrate he or she landed more than OFL, and ABC for red crab. However, AMs, and that ACLs in coordination 75,000 lb (34,019 kg) on a trip during MSY, OY, and OFL could not be with AMs must prevent overfishing. the qualification period and was granted estimated with the available Based on the requirements of the a trip limit equal to that higher level, information, and ABC is defined in Magnuson-Stevens Act and the NS1 rounded to the nearest 5,000 lb (2,268 terms of landings instead of total catch guidelines with respect to ACLs and kg). One vessel qualified under that (i.e., the red crab ABC does not include AMs, Amendment 3 establishes an ACL provision, and has operated with a trip dead discards). for red crab that is equal to the ABC. limit of 125,000 lb (56,699 kg) since The OFL is an estimate of the catch Amendment 3 also sets the TAL equal 2002. Amendment 3 eliminates these level above which overfishing is to the ACL for FYs 2011–2013, because trip limits to simplify the management occurring, but based on the available the management uncertainty in the red measures for red crab and to provide information, the SSC determined that an crab fishery is minimal and the SSC increased flexibility to the red crab fleet. OFL could not be estimated for the red determined that there was insufficient Comments and Responses crab fishery at this time. information to specify dead discards. ABC is defined under the Magnuson- Two comments were received on the Stevens Act as ‘‘a level of stock or stock 3. Accountability Measures proposed rule and the amendment. One complex’s annual catch that accounts The NS1 guidelines describe AMs as comment was received on the NOA, for the scientific uncertainty in the management controls aimed at from the National Park Service, stating estimate of OFL and any other scientific preventing the ACL from being no objection to Amendment 3. One uncertainty, and should be specified exceeded, and to correct or mitigate comment was received on the proposed

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rule from an individual recommending of five. Thus, each vessel has a lower $4 million in annual sales, while the that NMFS cut all quotas, including the allocation of red crab DAS than they size standard for charter/party operators red crab quota, by 50 percent. would have had they opted out one (part of NAICS cod 487210) is $7 Amendment 3 proposed, and this final permit. In addition, one of the vessels is million in sales. The participants in the rule implements, a catch level nearing the end of its DAS allocation commercial red crab fishery are those consistent with the best available and would have to stop fishing until vessels issued limited access red crab scientific information, as recommended this rule is implemented. Finally, this permits. Although some firms own more by the SSC. rule will increase the fleet’s flexibility than one vessel, available data make it and ability to take the entire fishing difficult to reliably identify ownership Classification quota, which is the purpose of the rule. control over more than one vessel. For The Administrator, Northeast Region, Currently, the fleet is half-way through this analysis, the number of permitted NMFS, determined that Amendment 3 the fishing year, but only 40% through vessels is considered to be a maximum is necessary for the conservation and the quota. If this rule is not estimate of the number of small management of the red crab fishery and implemented upon publication, the business entities. However, the total is consistent with the Magnuson- purpose of the rule may be undermined. value of landings in the red crab fishery Stevens Act and other applicable laws. Accordingly, the delay in averaged $3.44 million, so all business This final rule has been determined to effectiveness is unnecessary and entities in the harvesting sector can be be not significant for purposes of contrary to the public’s interest, and is categorized as small businesses for Executive Order 12866. hereby waived. purpose of the RFA, even if the Pursuant to 5 U.S.C. 553(d)(1), NMFS The Council prepared an EA for assumption overstates the number of finds good cause to waive the 30-day Amendment 3. Based on the analysis in business entities. For the reasons above, delayed effectiveness provision of the the EA, the AA concluded that there all vessels with limited access permits APA because any delay in effectiveness will be no significant impact on the would be considered small business is unnecessary. This action implements human environment as a result of this entities that would be affected by the a TAL that is equal to the target TAC rule. A copy of the EA is available from proposed action. As of September 2011, that the fishery is currently operating the Council (see ADDRESSES). there were four vessels with limited under for FY 2011, establishes AMs that NMFS, pursuant to section 604 of the access red crab permits actively would not be implemented unless the Regulatory Flexibility Act (RFA), has operating in the red crab fishery. TAL is exceeded, and removes the DAS prepared a FRFA in support of program and trip limits for the limited Amendment 3. The FRFA incorporates Description of Projected Reporting, access red crab fleet. The purpose of the the IRFA, a summary of the significant Recordkeeping, and Other Compliance delay in effectiveness is to allow issues raised by the public comments in Requirements affected parties time to modify their response to the IRFA, NMFS’ responses There are no compliance behaviors, businesses, or practices to to those comments, relevant analyses in requirements associated with this final come into compliance with new the Amendment and its EA, and a rule implementing Amendment 3. regulations. This rule imposes no summary of the analyses completed to This final rule does not duplicate, additional requirements on the affected support the action implemented through overlap, or conflict with other Federal entities. It retains the current TAL for this rule. A copy of the analyses done rules. the red crab fishery, and removes the in the Amendment and EA is available Description of the Steps the Agency Has DAS and trip limit restrictions; thus, from the Council (see ADDRESSES). A Taken To Minimize the Significant implementing this rule will not affect summary of the IRFA was published in Economic Impact on Small Entities the day-to-day operations of the fleet In the proposed rule for this action and is Consistent With the Stated Objectives of fact, removing the DAS and trip limit not repeated here. A description of why Applicable Statutes restrictions will allow the red crab fleet this action was considered, the to fish more efficiently and provides objectives of, and the legal basis for this All of the management measures in flexibility to vessel owners. The AM to rule is contained in the preamble to the Amendment 3 that were approved by close the directed fishery will not proposed rule and this final rule and is NMFS provide for increased flexibility necessarily impact the fishery, because not repeated here. and promote efficiency within the the AM will only be implemented if fishery. This action implements a TAL is exceeded prior to the end of the A Summary of the Significant Issues measure that eliminates the DAS FY, which may not occur. Because Raised by the Public in Response to the requirements, which provides for implementing the rule upon publication IRFA, a Summary of the Agency’s increased flexibility for vessel owners to will not require any change in fishery Assessment of Such Issues, and a fish without concern for their DAS practices, nor will it cause a fishery Statement of Any Changes Made in the clock. Amendment 3 also removes the participant to be in violation of a new Proposed Rule as a Result of Such commercial trip limit, which eliminates regulation, delaying the rule’s Comments regulatory discards and promotes effectiveness for thirty days is Two comments were received on the efficiency. Therefore, by implementing unnecessary. proposed rule and the amendment. management measures that increase Moreover, waiving the delayed However, neither of these comments flexibility and efficiency and reduce effectiveness of this rule is in the public were specific to the IRFA or economic waste, NMFS has taken the steps interest. Currently, five vessels divide analysis contained in Amendment 3. necessary to minimize the impacts of equally the total number of DAS, even this action on small entities consistent Description and Estimate of Number of though only four vessels are fishing. The with the stated objectives of applicable Small Entities to Which the Final Rule fleet had anticipated that Amendment 3 statutes. would be effective at an earlier date, and Will Apply did not exercise its ability to ‘‘opt out’’ The Small Business Administration Small Entity Compliance Guide the one permit that does not fish last (SBA) considers commercial fishing Section 212 of the Small Business fall, which would have reallocated the entities (NAICS code 114111) to be Regulatory Enforcement Fairness Act of fleet DAS between four vessels instead small entities if they have no more than 1996 states that, for each rule or group

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of related rules for which an agency is ■ 3. In § 648.4, paragraphs scallop permit that possesses or lands required to prepare a FRFA, the agency (a)(13)(i)(E)(3), (a)(13)(i)(M), and more than 40 lb (18.1 kg) of scallops; shall publish one or more guides to (a)(13)(i) (N) are removed; and any vessel issued a limited access NE assist small entities in complying with paragraphs (a)(13)(i)(A) and (B) are multispecies permit subject to the NE the rule, and shall designate such revised to read as follows: multispecies DAS program requirements publications as ‘‘small entity that possesses or lands regulated NE § 648.4 Vessel permits. compliance guides.’’ The agency shall multispecies, except as provided in explain the actions a small entity is (a) * * * §§ 648.10(h)(9)(ii), 648.17, and 648.89; required to take to comply with a rule (13) * * * and any vessel issued a limited access (i) Limited access red crab permit or group of rules. As part of this monkfish permit subject to the monkfish —(A) Eligibility. Any vessel of the rulemaking process, a letter to permit DAS program and call-in requirement United States that possesses or lands holders that also serves as small entity that possess or lands monkfish above more than the incidental amount of red compliance guide (the guide) was the incidental catch trip limits specified crab, as specified in § 648.263(b), per prepared. Copies of this final rule are in § 648.94(c) shall be deemed to be in red crab trip must have been issued and available from the Northeast Regional its respective DAS program for purposes carry on board a valid limited access red Office, and the guide, i.e., permit holder of counting DAS and will be charged crab permit. letter, will be sent to all holders of (B) Application/renewal restrictions. DAS from its time of sailing to landing, permits for the red crab fishery. The The provisions of paragraph (a)(1)(i)(B) regardless of whether the vessel’s owner guide and this final rule will be of this section apply. or authorized representative provides available upon request, and posted on adequate notification as required by the Northeast Regional Office’s Web site * * * * * paragraphs (e) through (h) of this at http://www.nero.noaa.gov. § 648.7 [Amended] section. List of Subjects in 50 CFR Part 648 ■ 4. In § 648.7, paragraph (b)(2)(iii) is * * * * * ■ 6. In § 648.14, paragraphs (t)(2)(iii) Fisheries, Fishing, Recordkeeping and removed. ■ 5. In § 648.10, paragraphs (h) and (t)(3)(iv) are added; paragraphs (t)(4) reporting requirements. introductory text, (h)(4), and (h)(8) are through (6) are revised; and paragraph Dated: September 23, 2011. revised to read as follows: (t)(7) is removed to read as follows: Samuel D. Rauch III, § 648.10 VMS and DAS requirements for § 648.14 Prohibitions. Deputy Assistant Administrator for vessel owners/operators. Regulatory Programs, National Marine * * * * * Fisheries Service. * * * * * (t) * * * (h) Call-in notification. The owner of For the reasons set out in the (2) * * * a vessel issued a limited access preamble, 50 CFR part 648 is amended (iii) Fish for, possess, or land red crab, monkfish permit who is participating in as follows: in excess of the incidental limit a DAS program and who is not required specified at § 648.263(b)(1), after PART 648—FISHERIES OF THE to provide notification using a VMS, determination that the TAL has been NORTHEASTERN UNITED STATES and a scallop vessel qualifying for a reached and notice of the closure date DAS allocation under the occasional has been made. ■ 1. The authority citation for part 648 category that has not elected to fish * * * * * continues to read as follows: under the VMS notification (3) * * * Authority: 16 U.S.C. 1801 et seq. requirements of paragraph (e) of this (iv) Purchase or otherwise receive for section and is not participating in the a commercial purpose in excess of the ■ 2. In § 648.2, the definition for Sea Scallop Area Access program as incidental limit specified at ‘‘Day(s)-at-Sea’’ is revised, and the specified in § 648.60, and any vessel § 648.263(b)(1), after determination that definition for ‘‘Red crab trip’’ is added, that may be required by the Regional the TAL has been reached and notice of in alphabetical order, to read as follows: Administrator to use the call-in program the closure date has been made. under paragraph (i) of this section, are § 648.2 Definitions. (4) Prohibitions on processing and subject to the following requirements: mutilation. (i) Retain, possess, or land * * * * * * * * * * red crab claws and legs separate from Day(s)-at-Sea (DAS), with respect to (4) The vessel’s confirmation numbers crab bodies in excess of one standard the NE multispecies and monkfish for the current and immediately prior U.S. fish tote, if fishing on a red crab fisheries (except as described in NE multispecies or monkfish fishing trip with a valid Federal limited access § 648.82(k)(1)(iv)), and the Atlantic sea trip must be maintained on board the red crab permit. scallop fishery, means the 24-hr period vessel and provided to an authorized (ii) Retain, possess, or land any red of time or any part thereof during which officer immediately upon request. crab claws and legs separate from crab a fishing vessel is absent from port to * * * * * bodies if the vessel has not been issued fish for, possess, or land, or fishes for, (8) Any vessel issued a limited access a valid Federal limited access red crab possesses or lands, regulated species, scallop permit and not issued an LAGC permit or has been issued a valid monkfish, or scallops. scallop permit that possesses or lands Federal limited access red crab permit, * * * * * scallops; any vessel issued a limited but is not fishing on a dedicated red Red crab trip, with respect to the access scallop and LAGC IFQ scallop crab trip. Atlantic deep-sea red crab fishery, permit that possesses or lands more (iii) Retain, possess, or land more than means a trip on which a vessel fishes than 600 lb (272.2 kg) of scallops; any two claws and eight legs per crab if the for, possesses, or lands, or intends to vessel issued a limited access scallop vessel has been issued a valid Federal fish for, possess, or land red crab in and LAGC NGOM scallop permit that red crab incidental catch permit, or has excess of the incidental limit, as possesses or lands more than 200 lb been issued a valid Federal limited specified at § 648.263(b)(1). (90.7 kg) of scallops; any vessel issued access red crab permit and is not fishing * * * * * a limited access scallop and LAGC IC on a dedicated red crab trip.

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(iv) Possess or land red crabs that the Red Crab Committee and the Administrator shall consider the have been fully processed at sea, i.e., Council regarding the need to adjust recommendations and publish a rule in engage in any activity that removes meat measures in the Red Crab FMP to better the Federal Register proposing from any part of a red crab, unless a achieve the FMP’s objectives. After specifications and associated measures, preponderance of available evidence considering guidance, the Council may consistent with the Administrative shows that the vessel fished exclusively submit to NMFS its recommendations Procedure Act. in state waters and was not issued a for changes to management measures, as (iii) The Regional Administrator may valid Federal permit. appropriate, through the specifications propose specifications different than (5) Gear requirements. Fail to comply process described in this section, the those recommended by the Council. If with any gear requirements or framework process specified in the specifications published in the restrictions specified at § 648.264. § 648.261, or through an amendment to Federal Register differ from those (6) Presumption. For purposes of this the FMP. recommended by the Council, the part, the following presumption applies: (3) Based on the annual review, reasons for any differences must be All red crab retained or possessed on a described above, and/or the SAFE clearly stated and the revised vessel issued any permit under § 648.4 Report described in paragraph (b) of this specifications must satisfy the criteria are deemed to have been harvested in or section, recommendations for set forth in this section, the FMP, and from the Red Crab Management Unit, acceptable biological catch (ABC) from other applicable laws. unless the preponderance of all the Scientific and Statistical Committee (iv) If the final specifications are not submitted evidence demonstrates that (SSC), and any other relevant published in the Federal Register for such red crab were harvested by a vessel information, the Red Crab PDT shall the start of the fishing year, the previous fishing exclusively outside of the Red recommend to the Red Crab Committee year’s specifications shall remain in Crab Management Unit or in state and Council the following specifications effect until superseded by the final rule waters. for harvest of red crab: an annual catch implementing the current year’s limit (ACL) set less than or equal to * * * * * specifications, to ensure that there is no ABC; and total allowable landings (TAL) lapse in regulations while new ■ 7. Section 648.260 is revised to read necessary to meet the objectives of the as follows: specifications are completed. FMP in each red crab fishing year, (b) SAFE Report. (1) The Red Crab § 648.260 Specifications. specified for a period of up to 3 fishing PDT shall prepare a SAFE Report at years. least every 3 yr. Based on the SAFE (a) Annual review and specifications (4) The PDT, after its review of the process. The Council, the Red Crab Plan Report, the Red Crab PDT shall develop available information on the status of and present to the Council Development Team (PDT), and the Red the stock and the fishery, may Crab Advisory Panel shall monitor the recommended specifications as defined recommend to the Council any in paragraph (a) of this section for up to status of the red crab fishery and measures necessary to assure that the resource. 3 fishing years. The SAFE Report shall specifications will not be exceeded, as be the primary vehicle for the (1) The Red Crab PDT shall meet at well as changes to the appropriate least once annually during the presentation of all updated biological specifications. and socio-economic information intervening years between Stock (5) Taking into account the annual regarding the red crab fishery. The Assessment and Fishery Evaluation review and/or SAFE Report described in SAFE Report shall provide source data (SAFE) Reports, described in paragraph paragraph (b) of this section, the advice for any adjustments to the management (b) of this section, to review the status of the SSC, and any other relevant of the stock and the fishery. Based on information, the Red Crab PDT may also measures that may be needed to such review, the PDT shall provide a recommend to the Red Crab Committee continue to meet the goals and report to the Council on any changes or and Council changes to stock status objectives of the FMP. new information about the red crab determination criteria and associated (2) In any year in which a SAFE stock and/or fishery, and it shall thresholds based on the best scientific Report is not completed by the Red Crab recommend whether the specifications information available, including PDT, the annual review process for the upcoming year(s) need to be information from peer-reviewed stock described in paragraph (a) of this modified. At a minimum, this review assessments of red crab. These section shall be used to recommend any shall include a review of at least the adjustments may be included in the necessary adjustments to specifications following data, if available: commercial Council’s specifications for the red crab and/or management measures in the catch data; current estimates of fishing fishery. FMP. mortality and catch-per-unit-effort (6) Council recommendation—(i) The ■ 8. Section 648.262 is revised to read (CPUE); discards; stock status; recent Council shall review the as follows: estimates of recruitment; virtual recommendations of the Red Crab PDT, population analysis results and other Red Crab Committee, and SSC, any § 648.262 Accountability measures for red estimates of stock size; sea sampling, public comment received thereon, and crab limited access vessels. port sampling, and survey data or, if sea any other relevant information, and (a) Closure authority. NMFS shall sampling data are unavailable, length make a recommendation to the Regional close the EEZ to fishing for red crab in frequency information from port Administrator on appropriate excess of the incidental limit by sampling and/or surveys; impact of specifications and any measures commercial vessels for the remainder of other fisheries on the mortality of red necessary to assure that the the fishing year if the Regional crabs; and any other relevant specifications will not be exceeded. Administrator determines that the TAL information. (ii) The Council’s recommendation has been harvested. Upon notification of (2) If new and/or additional must include supporting the closure, a vessel issued a limited information becomes available, the Red documentation, as appropriate, access red crab permit may not fish for, Crab PDT shall consider it during this concerning the environmental, catch, possess, transport, land, sell, annual review. Based on this review, the economic, and social impacts of the trade, or barter, in excess of 500 lb Red Crab PDT shall provide guidance to recommendations. The Regional (226.8 kg) of red crab, or its equivalent

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in weight as specified at ■ 9. In § 648.263, paragraph (a)(1) is to 500 lb (226.8 kg) of red crab, or its § 648.263(a)(2)(i) and (ii), per fishing removed and reserved, and paragraphs equivalent in weight as specified at trip in or from the Red Crab (a)(5) and (b)(1) are revised to read as paragraphs (a)(1)(i) and (ii) of this Management Unit. follows: section, per fishing trip in or from the (b) Adjustment for an overage. (1) If Red Crab Management Unit. NMFS determines that the TAL was § 648.263 Red crab possession and exceeded in a given fishing year, the landing restrictions. * * * * * exact amount of the landings overage (a) * * * ■ 10. In § 648.264, paragraph (a)(1) is will be deducted, as soon as is (5) Mutilation restriction. A vessel practicable, from a subsequent single may not retain, possess, or land red crab revised to read as follows: fishing year’s TAL, through notification claws and legs separate from crab bodies § 648.264 Gear requirements/restrictions. consistent with the Administrative in excess of one standard U.S. fish tote Procedure Act. per trip when fishing on a dedicated red (a) * * * (2) If NMFS determines that the ACL crab trip. (1) Limited access red crab vessel may was exceeded in a given fishing year, (b) * * * not harvest red crab from any fishing the exact amount of an overage that was (1) Possession and landing gear other than red crab traps/pots, not already deducted from the TAL restrictions. A vessel or operator of a marked as specified by paragraph (a)(5) under paragraph (b)(i) of this section vessel that has been issued a red crab of this section. will be deducted, as soon as is incidental catch permit, or a vessel practicable, from a subsequent single issued a limited access red crab permit * * * * * fishing year’s TAL, through notification not on a dedicated red crab trip, as [FR Doc. 2011–25158 Filed 9–28–11; 8:45 am] consistent with the Administrative defined in § 648.2, may catch, possess, BILLING CODE 3510–22–P Procedure Act. transport, land, sell, trade, or barter, up

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Proposed Rules Federal Register Vol. 76, No. 189

Thursday, September 29, 2011

This section of the FEDERAL REGISTER www.regulations.gov, including any electronic systems or constrain USCIS’s contains notices to the public of the proposed personal information provided. ability to respond to changing issuance of rules and regulations. The • Docket: For access to the docket to workloads, priorities, or statutory purpose of these notices is to give interested read background documents or requirements. persons an opportunity to participate in the comments received go to http:// Applicants and petitioners rule making prior to the adoption of the final www.regulations.gov. rules. (Applicants); co-applicants, Instructions: All submissions received beneficiaries, derivatives, dependents, must include the agency name and or other persons on whose behalf a DEPARTMENT OF HOMELAND docket number for this notice. All benefit request is made or whose SECURITY comments received will be posted immigration status may be derived without change to http:// because of a relationship to the Office of the Secretary www.regulations.gov, including any Applicant (Co-Applicants); and their personal information provided. attorneys and representatives accredited 6 CFR Part 5 Docket: For access to the docket to by the Board of Immigration Appeals read background documents or [Docket No. DHS–2011–0088] (Representatives) may create comments received, go to http:// individualized online accounts. These Privacy Act of 1974: Implementation of www.regulations.gov. online accounts help Applicants and Exemptions; Department of Homeland FOR FURTHER INFORMATION CONTACT: For their Representatives file for benefits, Security U.S. Citizenship and general questions please contact: Donald track the status of open benefit requests, Immigration Services–016 Electronic K. Hawkins (202–272–8000), Privacy schedule appointments, change their Immigration System-3 Automated Officer, U.S. Citizenship and addresses and contact information, and Background Functions System of Immigration Services, 20 Massachusetts receive notices and notifications Records Avenue, NW., Washington, DC 20529. regarding their cases. Through USCIS For privacy issues please contact: Mary ELIS, individuals may submit additional AGENCY: Privacy Office, DHS. Ellen Callahan (703–235–0780), Chief information and/or evidence ACTION: Notice of proposed rulemaking. Privacy Officer, Privacy Office, electronically. Once an individual Department of Homeland Security, provides biographic information in one SUMMARY: The Department of Homeland Washington, DC 20528. benefit request, USCIS ELIS uses that Security is giving concurrent notice of a SUPPLEMENTARY INFORMATION: information to pre-populate any future newly established system of records benefit requests filed by the same pursuant to the Privacy Act of 1974 for I. Background individual. This eases the burden on an the ‘‘Department of Homeland Security In accordance with the Privacy Act of individual so he or she does not have U.S. Citizenship and Immigration 1974, 5 U.S.C. 552a, the Department of to repeatedly type in the same Services–016 Electronic Immigration Homeland Security (DHS) U.S. information and decreases the System-3 Automated Background Citizenship and Immigration Services opportunity for error. Functions System of Records’’ and this (USCIS) proposes to establish a new USCIS collects this information proposed rulemaking. In this proposed DHS system of records titled, ‘‘DHS/ primarily for the benefit decision- rulemaking, the Department proposes to USCIS–016 Electronic Immigration making process, to detect duplicate and exempt portions of the system of records System-3 Automated Background related accounts, identify potential from one or more provisions of the Functions System of Records.’’ DHS/ national security concerns, criminality, Privacy Act because of criminal, civil, USCIS is creating a new electronic and fraud. In essence, Electronic and administrative enforcement environment known as the Electronic Immigration System-3 Automated requirements. Immigration System (USCIS ELIS). Background Functions (USCIS ELIS DATES: Comments must be received on USCIS ELIS allows individuals Automated Background Functions) is or before October 31, 2011. requesting a USCIS benefit to register used to assist USCIS personnel in ADDRESSES: You may submit comments, online and submit certain benefit verifying the data submitted by the identified by docket number DHS– requests through the online system. This Applicant or Representative, to ensure 2011–0088, by one of the following system will improve customer service; that any duplicate accounts will be methods: increase efficiency for processing merged, and that background check • Federal e-Rulemaking Portal: benefits; better identify potential results, indicating threats to the national http://www.regulations.gov. Follow the national security concerns, criminality, security, public safety criminality, or instructions for submitting comments. and fraud; and create improved access fraud will be appropriately considered • Fax: 703–483–2999. controls and better auditing capabilities. in adjudicating the benefit request. • Mail: Mary Ellen Callahan, Chief DHS and USCIS are promulgating the DHS is claiming exemptions from Privacy Officer, Privacy Office, regulation ‘‘Immigration Benefits certain requirements of the Privacy Act Department of Homeland Security, Business Transformation, Increment I’’ for DHS/USCIS–016 Electronic Washington, DC 20528. (August 29, 2011, 76 FR 53764) to make Immigration System-3 Automated • Instructions: All submissions it possible for USCIS to transition to an Background Functions System of received must include the agency name electronic environment. This regulation Records. Some information in Electronic and docket number for this rulemaking. will assist USCIS in the transformation Immigration System-3 Automated All comments received will be posted of its operations by removing references Background Functions (USCIS ELIS without change to http:// and processes that inhibit the use of Automated Background Functions)

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relates to official DHS national security, PART 5—DISCLOSURE OF RECORDS evidence, and to avoid detection or law enforcement, and immigration AND INFORMATION apprehension, which would undermine the activities. The exemptions are required entire investigative process. to preclude subjects from compromising 1. The authority citation for part 5 (b) From subsection (d) (Access to Records) an ongoing law enforcement, national continues to read as follows: because access to the records contained in security or fraud investigation; to avoid Authority: Pub. L. 107–296, 116 Stat. this system of records could inform the disclosure of investigative techniques; 2135; (6 U.S.C. 101 et seq.); 5 U.S.C. 301. subject of an investigation of an actual or Subpart A also issued under 5 U.S.C. 552. potential criminal, civil, or regulatory to protect the identities and physical Subpart B also issued under 5 U.S.C. 552a. violation to the existence of that investigation safety of confidential informants and 2. Add at the end of Appendix C to and/or reveal investigative interest on the law enforcement personnel; and to part of DHS or another agency. Access to the ensure DHS’s ability to obtain Part 5, the following new paragraph ‘‘62’’: records could permit the individual who is information from third parties and other the subject of a record to impede the sources. Appendix C to Part 5—DHS Systems of investigation, to tamper with witnesses or This system is exempted from the Records Exempt From the Privacy Act evidence, and to avoid detection or following provisions of the Privacy Act * * * * * apprehension. Amendment of the records pursuant to 5 U.S.C. 552a(k)(2): 5 U.S.C. 62. The DHS/USCIS–016 Electronic could interfere with ongoing investigations 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), Immigration System-3 Automated and law enforcement activities and would (e)(4)(I); and (f). Additionally, many of Background Functions System of Records impose an unreasonable administrative burden by requiring investigations to be the functions in this system require consists of electronic and paper records and will be used by DHS and its components. The continually reinvestigated. In addition, retrieving records from law enforcement DHS/USCIS–016 Electronic Immigration permitting access and amendment to such systems. Where a record received from System-3 Automated Background Functions information could disclose security-sensitive another system has been exempted in System of Records is a repository of information that could be detrimental to that source system under 5 U.S.C. information held by USCIS to serve its homeland security. mission of processing immigration benefits. 552a(j)(2), DHS will claim the same (c) From subsection (e)(1) (Relevancy and This system also supports certain other DHS exemptions for those records that are Necessity of Information) because in the programs whose functions include, but are claimed for the original primary systems not limited to, the enforcement of civil and course of investigations into potential of records from which they originated criminal laws; investigations, inquiries, and violations of federal law, the accuracy of and claims any additional exemptions proceedings thereunder; and national information obtained or introduced in accordance with this rule. security and intelligence activities. The DHS/ occasionally may be unclear, or the The exemptions proposed here are USCIS–016 Electronic Immigration System-3 information may not be strictly relevant or Automated Background Functions System of necessary to a specific investigation. In the standard for agencies where the Records contains information that is interests of effective law enforcement, it is information may contain investigatory collected by, on behalf of, in support of, or appropriate to retain all information that may materials compiled for law enforcement in cooperation with DHS and its components aid in establishing patterns of unlawful purposes. These exemptions are and may contain personally identifiable activity. information collected by other federal, state, exercised by executive federal agencies. (d) From subsections (e)(4)(G), (e)(4)(H), In appropriate circumstances, where local, tribal, foreign, or international government agencies. This system is and (e)(4)(I) (Agency Requirements) and (f) compliance would not appear to exempted from the following provisions of (Agency Rules), because portions of this interfere with or adversely affect the the Privacy Act pursuant to 5 U.S.C. system are exempt from the individual access overall law enforcement process, the 552a(k)(2): 5 U.S.C. 552a(c)(3); (d); (e)(1), provisions of subsection (d) for the reasons applicable exemptions may be waived (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). noted above, and therefore DHS is not on a case-by-case basis. Additionally, many of the functions in this required to establish requirements, rules, or system require retrieving records from law procedures with respect to such access. A notice of system of records for DHS/ enforcement systems. Where a record Providing notice to individuals with respect USCIS–016 Electronic Immigration received from another system has been to existence of records pertaining to them in System-3 Automated Background exempted in that source system under 5 the system of records, or otherwise setting up U.S.C. 552a(j)(2), DHS will claim the same Functions System of Records is also procedures pursuant to which individuals exemptions for those records that are claimed published in this issue of the Federal may access and view records pertaining to Register. for the original primary systems of records from which they originated and claims any themselves in the system, would undermine II. Privacy Act additional exemptions in accordance with investigative efforts and reveal the identities this rule. Exemptions from these particular of witnesses, and potential witnesses, and The Privacy Act allows government subsections are justified, on a case-by-case confidential informants. agencies to exempt certain records from basis determined at the time a request is Dated: September 15, 2011. the access and amendment provisions. If made, for the following reasons: (a) From subsection (c)(3) (Accounting for Mary Ellen Callahan, an agency claims an exemption, Disclosures) because release of the Chief Privacy Officer, Department of however, it must issue a Notice of accounting of disclosures could alert the Homeland Security. Proposed Rulemaking to make clear to subject of an investigation of an actual or [FR Doc. 2011–24931 Filed 9–28–11; 8:45 am] the public the reasons why a particular potential criminal, civil, or regulatory exemption is claimed. violation to the existence of that investigation BILLING CODE 9111–97–P and reveal investigative interest on the part List of Subjects in 6 CFR Part 5 of DHS as well as the recipient agency. Disclosure of the accounting would therefore Freedom of information; Privacy. present a serious impediment to law enforcement efforts and/or efforts to preserve For the reasons stated in the national security. Disclosure of the preamble, DHS proposes to amend accounting would also permit the individual Chapter I of Title 6, Code of Federal who is the subject of a record to impede the Regulations, as follows: investigation, to tamper with witnesses or

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DEPARTMENT OF HOMELAND FOR FURTHER INFORMATION CONTACT: For 2002, as amended; the Intelligence SECURITY general questions please contact: Dr. Reform and Terrorism Prevention Act of Lesia Banks, (202–646–3323), Acting 2004, as amended; the National Security Office of the Secretary Privacy Officer, Federal Emergency Act of 1947, as amended; and FEMA Management Agency, Department of Manual 1010–1 ‘‘Federal Emergency 6 CFR Part 5 Homeland Security, Washington, DC Management Agency Missions and [Docket No. DHS–2011–0091] 20478. For privacy issues please Functions.’’ contact: Mary Ellen Callahan (703–235– Consistent with DHS’s information Privacy Act of 1974: Implementation of 0780), Chief Privacy Officer, Privacy sharing mission, information stored in Exemptions; Department of Homeland Office, Department of Homeland the DHS/FEMA–012 Suspicious Security Federal Emergency Security, Washington, DC 20528. Activity Reporting System of Records Management Agency–012 Suspicious SUPPLEMENTARY INFORMATION: may be shared with other DHS Activity Reporting System of Records components, as well as appropriate I. Background federal, state, local, tribal, territorial, AGENCY: Privacy Office, DHS. In accordance with the Privacy Act of foreign, or international government ACTION: Notice of proposed rulemaking. 1974, 5 U.S.C. 552a, the Department of agencies. This sharing will only take Homeland Security (DHS) Federal place after DHS determines that the SUMMARY: The Department of Homeland Emergency Management Agency receiving component or agency has a Security is giving concurrent notice of a (FEMA) proposes to establish a new need to know the information to carry newly established system of records DHS/FEMA system of records titled, out national security, law enforcement, pursuant to the Privacy Act of 1974 for ‘‘DHS/FEMA–012 Suspicious Activity immigration, intelligence, or other the ‘‘Department of Homeland Security/ Reporting System of Records.’’ functions consistent with the routine Federal Emergency Management FEMA’s mission is to ‘‘support our uses set forth in this system of records Agency–012 Suspicious Activity citizens and first responders to ensure notice. Reporting System of Records’’ and this that as a nation we work together to II. Privacy Act proposed rulemaking. In this proposed build, sustain, and improve our rulemaking, the Department proposes to capability to prepare for, protect against, The Privacy Act embodies fair exempt portions of the system of records respond to, recover from, and mitigate information practice principles in a from one or more provisions of the all hazards.’’ FEMA will collect, statutory framework governing the Privacy Act because of criminal, civil, maintain, and retrieve records on means by which the U.S. Government and administrative enforcement individuals who report suspicious collects, maintains, uses, and requirements. activities, individuals reported as being disseminates personally identifiable involved in suspicious activities, and information. The Privacy Act applies to DATES: Comments must be received on individuals charged with the analysis information that is maintained in a or before October 31, 2011. and appropriate handling of suspicious ‘‘system of records.’’ A ‘‘system of ADDRESSES: You may submit comments, activity reports. FEMA’s Office of the records’’ is a group of any records under identified by docket number DHS– Chief Security Officer (OCSO), Fraud the control of an agency from which 2011–0091, by one of the following and Investigations Unit, manages this information is retrieved by the name of methods: process. To reduce any risk of the individual or by some identifying • Federal e-Rulemaking Portal: unauthorized access, FEMA SARs are number, symbol, or other identifying http://www.regulations.gov. Follow the secured in a room monitored by FEMA particular assigned to the individual. In instructions for submitting comments. OCSO special agents and analysts. the Privacy Act, an individual is defined • Fax: 703–483–2999. FEMA SARs may shared with federal, to encompass U.S. citizens and lawful • Mail: Mary Ellen Callahan, Chief state, local, and tribal jurisdictions that permanent residents. As a matter of Privacy Officer, Privacy Office, hold the responsibility of investigating policy, DHS extends administrative Department of Homeland Security, suspicious activities within their Privacy Act protections to all Washington, DC 20528. jurisdictions. FEMA SARs that do not individuals where systems of records • Instructions: All submissions have a nexus to terrorism or hazards to maintain information on U.S. citizens, received must include the agency name homeland security, as determined by lawful permanent residents, and and docket number for this rulemaking. FEMA OCSO special agents or analysts, visitors. All comments received will be posted are forwarded to the appropriate The Privacy Act allows government without change to http:// jurisdiction, such as sheriff offices, agencies to exempt certain records from www.regulations.gov, including any county/city police, and state police. the access and amendment provisions. If personal information provided. FEMA SARs that have a nexus to an agency claims an exemption, • Docket: For access to the docket to terrorism or hazards to homeland however, it must issue a Notice of read background documents or security, as determined by FEMA OCSO Proposed Rulemaking to make clear to comments received go to http:// special agents or analysts, are shared the public the reasons why a particular www.regulations.gov. with the Federal Bureau of exemption is claimed. Instructions: All submissions received Investigations (FBI) Joint Terrorism Task DHS is claiming exemptions from must include the agency name and Force (JTTF), Federal Protective Service, certain requirements of the Privacy Act docket number for this notice. All and/or other federal agencies required to for the DHS/FEMA–012 Suspicious comments received will be posted investigate and respond to terrorist Activity Reporting System of Records. without change to http:// threats or hazards to homeland security. Some information in the DHS/FEMA– www.regulations.gov, including any FEMA’s SAR process is authorized 012 Suspicious Activity Reporting personal information provided. and governed by 44 CFR Chapter 2 System of Records relates to official Docket: For access to the docket to ‘‘Delegation of Authority;’’ 42 U.S.C. DHS national security, law enforcement, read background documents or 5196(d); Executive Orders 12333 and and intelligence activities. These comments received, go to http:// 13388; 40 U.S.C. 1315(b)(2)(F); 6 U.S.C. exemptions are needed to protect www.regulations.gov. 314; The Homeland Security Act of information relating to DHS activities

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from disclosure to subjects or others Suspicious Activity Reporting System of procedures with respect to such access. related to these activities. Specifically, Records contains information that is Providing notice to individuals with respect the exemptions are required to preclude collected by, on behalf of, in support of, or to existence of records pertaining to them in subjects of these activities from in cooperation with DHS and its components the system of records or otherwise setting up and may contain personally identifiable procedures pursuant to which individuals frustrating these processes; to avoid information collected by other Federal, state, may access and view records pertaining to disclosure of activity techniques; to local, tribal, foreign, or international themselves in the system would undermine protect the identities and physical safety government agencies. The Secretary of investigative efforts and reveal the identities of confidential informants and law Homeland Security has exempted this system of witnesses, and potential witnesses, and enforcement personnel; to ensure DHS’ from the following provisions of the Privacy confidential informants. ability to obtain information from third Act, subject to limitations set forth in 5 Dated: September 9, 2011. parties and other sources; to protect the U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), Mary Ellen Callahan, privacy of third parties; and to safeguard (e)(4)(H), (e)(4)(I); and (f) pursuant to 5 U.S.C. 552a (k)(2). Exemptions from these particular Chief Privacy Officer, Department of classified information. Disclosure of subsections are justified, on a case-by-case Homeland Security. information to the subject of the inquiry basis to be determined at the time a request [FR Doc. 2011–24935 Filed 9–28–11; 8:45 am] could also permit the subject to avoid is made, for the following reasons: BILLING CODE 9110–17–P detection or apprehension. (a) From subsection (c)(3) (Accounting for The exemptions proposed here are Disclosures) because release of the standard law enforcement and national accounting of disclosures could alert the DEPARTMENT OF AGRICULTURE security exemptions exercised by a large subject of an investigation of an actual or potential criminal, civil, or regulatory number of federal law enforcement and Agricultural Marketing Service intelligence agencies. In appropriate violation to the existence of that investigation and reveal investigative interest on the part circumstances, where compliance of DHS as well as the recipient agency. 7 CFR Part 27 would not appear to interfere with or Disclosure of the accounting would therefore [Doc. #AMS–CN–10–0073; CN–10–005] adversely affect the law enforcement present a serious impediment to law purposes of this system and the overall enforcement efforts and/or efforts to preserve RIN 0581–AD16 law enforcement process, the applicable national security. Disclosure of the exemptions may be waived on a case by accounting would also permit the individual Revision of Cotton Futures case basis. who is the subject of a record to impede the Classification Procedures A notice of system of records for DHS/ investigation, to tamper with witnesses or AGENCY: Agricultural Marketing Service, FEMA–012 Suspicious Activity evidence, and to avoid detection or apprehension, which would undermine the USDA. Reporting System of Records is also entire investigative process. ACTION: Proposed rule. published in this issue of the Federal (b) From subsection (d) (Access to Records) Register. because access to the records contained in SUMMARY: The Agricultural Marketing List of Subjects in 6 CFR Part 5 this system of records could inform the Service (AMS) is proposing to update subject of an investigation of an actual or the procedures for cotton futures quality Freedom of information; Privacy. potential criminal, civil, or regulatory classification services by using Smith- For the reasons stated in the violation to the existence of that investigation and reveal investigative interest on the part Doxey classification data in the cotton preamble, DHS proposes to amend futures classification process. In Chapter I of Title 6, Code of Federal of DHS or another agency. Access to the records could permit the individual who is addition, references to a separate and Regulations, as follows: the subject of a record to impede the optional review of cotton futures investigation, to tamper with witnesses or certification would be eliminated to PART 5—DISCLOSURE OF RECORDS evidence, and to avoid detection or reflect current industry practices. These AND INFORMATION apprehension. Amendment of the records proposed changes in procedures for 1. The authority citation for Part 5 could interfere with ongoing investigations cotton futures quality classification continues to read as follows: and law enforcement activities and would services, as well as proposed impose an unreasonable administrative Authority: Pub. L. 107–296, 116 Stat. 2135; burden by requiring investigations to be conforming changes, reflect advances in (6 U.S.C. 101 et seq.); 5 U.S.C. 301. Subpart continually reinvestigated. In addition, cotton fiber quality measurement and A also issued under 5 U.S.C. 552. Subpart B permitting access and amendment to such data processing made since the also issued under 5 U.S.C. 552a. information could disclose security-sensitive regulations were last updated in 1992. 2. Add at the end of Appendix C to information that could be detrimental to DATES: Comments must be received on homeland security. or before October 31, 2011. Part 5, the following new paragraph (c) From subsection (e)(1) (Relevancy and ADDRESSES: Interested persons may ‘‘60’’: Necessity of Information) because in the course of investigations into potential comment on the proposed rule using the Appendix C to Part 5—DHS Systems of following procedures: Records Exempt From the Privacy Act violations of federal law, the accuracy of • information obtained or introduced Internet: http:// * * * * * occasionally may be unclear, or the www.regulations.gov. 60. The DHS/FEMA–012 Suspicious information may not be strictly relevant or • Mail: Darryl Earnest, Deputy Activity Reporting System of Records necessary to a specific investigation. In the Administrator, Cotton & Tobacco consists of electronic and paper records and interests of effective law enforcement, it is Programs, AMS, USDA, STOP 0224, will be used by DHS and its components. The appropriate to retain all information that may 1400 Independence Avenue, SW., DHS/FEMA–012 Suspicious Activity aid in establishing patterns of unlawful Washington, DC 20250–0224. Reporting System of Records is a repository activity. Comments should be submitted in of information held by DHS in connection (f) From subsections (e)(4)(G), (e)(4)(H), with its several and varied missions and and (e)(4)(I) (Agency Requirements) and (f) triplicate. All comments should functions, including, but not limited to the (Agency Rules), because portions of this reference the docket number, date, and enforcement of civil and criminal laws; system are exempt from the individual access page number of this issue of the Federal investigations, inquiries, and proceedings provisions of subsection (d) for the reasons Register. there under; and national security and noted above, and therefore DHS is not All comments will be available for intelligence activities. The DHS/FEMA–012 required to establish requirements, rules, or public inspection at Cotton & Tobacco

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Program, AMS, USDA, Room 2637–S, cotton futures will yield increases of increase operational efficiencies have 1400 Independence Avenue, SW., efficiency to the benefit of the cotton prompted the Cotton and Tobacco Washington, DC 20250 during regular marketing industry. Programs to propose the use of Smith- business. Comments, including the Doxey classification data in the cotton Paperwork Reduction Act identity of the commenter can also be futures classification process. reviewed on: http:// In compliance with Office of Currently, the futures classification www.regulations.gov. A copy of this Management and Budget (OMB) process is a two-step process that occurs notice may be found at: http:// regulations (5 CFR part 1320) which after the Smith-Doxey classification in www.ams.usda.gov/cotton/ implement the Paperwork Reduction which an initial futures classification is rulemaking.htm. Act (PRA) (44 U.S.C. 3501–3520) the immediately verified by a review— information collection requirements commonly referred to as a final futures FOR FURTHER INFORMATION CONTACT: contained in the regulation to be classification. When verified by a Darryl Earnest, Deputy Administrator, amended have been previously futures classification, Smith-Doxey Cotton & Tobacco Programs, AMS, approved by OMB and were assigned classification data will serve as the USDA, STOP 0224, 1400 Independence control number 0581–0029. initial futures classification with the Avenue, SW., Washington, DC 20250– Background verifying futures classification serving 0224. Telephone (202) 720–2145, as the final futures classification, facsimile (202) 690–1718, or e-mail AMS Cotton and Tobacco Programs is reducing the number of futures [email protected]. proposing to revise procedures for classifications required in many SUPPLEMENTARY INFORMATION: This providing services related to the instances. Verification of Smith-Doxey proposed rule has been determined to classification of cotton futures as classing data is necessary because be not significant for purposes of authorized by Act by using Smith-Doxey certain quality characteristics— Executive Order 12866, and, therefore, classification data in the cotton futures especially color—are known to change has not been reviewed by the Office of classification process. The Act requires over time and when cotton is subjected Management and Budget (OMB). USDA-certified quality measurements to certain environmental conditions. for each bale included in futures In cases where the comparison of Executive Order 12988 contracts for the purpose of verifying Smith-Doxey data and futures This proposed rule has been reviewed that each bale meets the minimum classification data fail to pass pre- under Executive Order 12988, Civil quality requirements for cotton futures established tolerances, the first futures Justice Reform. It is not intended to trading. classification becomes the initial futures have retroactive effect. There are no USDA was first directed to provide classification and a second futures administrative procedures which must cotton classification services to classification (final futures be exhausted prior to any judicial producers of cotton under the Smith- classification) will be required. The use challenge to the provisions of this rule. Doxey Act of April 13, 1937 (Pub. L. 75– of Smith-Doxey classification data will 28). Therefore, the original classification significantly reduce the need for yet Regulatory Flexibility Act of a cotton bale’s sample and quality another cotton futures classification. Pursuant to requirements set forth in data which results from this The proposed changes would improve the Regulatory Flexibility Act (RFA) (5 classification is commonly referred to as operational efficiency while potentially U.S.C. 601–612), AMS has considered the Smith-Doxey classification or Smith- improving the integrity and accuracy of the economic impact of this action on Doxey data. While cotton classification classification data provided to the small entities and has determined that is not mandatory, practically every cotton industry. its implementation will not have a cotton bale grown in the United States For the reasons set forth above, this significant economic impact on a today is classed by USDA under the proposal would amend 7 CFR part 27— substantial number of small entities. authority of the Cotton Statistics and Cotton Classification Under Cotton Fees paid by users of the service are not Estimates Act (7 U.S.C. 471–476) and Futures Legislation, which establishes changed by this action; implementation the U.S. Cotton Standards Act (7 U.S.C. the procedures for determining cotton of the new procedures indicates the 51–65) and under regulations found in classification for cotton submitted for existing fees remain sufficient to fully 7 CFR part 28—Cotton Classing, Testing, futures certification. Specific changes reimburse AMS for provision of the and Standards. The U.S. cotton industry required to implement the proposed services. uses Smith-Doxey classification data to futures classification procedure include The purpose of the RFA is to fit assign quality-adjusted market values to the elimination of outdated procedures regulatory actions to the scale of U.S. cotton and market U.S. cotton both in sections 27.61–27.67, 27.69 and 27.72 businesses subject to such actions so domestically and internationally. used to guide optional reviews of that small businesses will not be Although the Smith-Doxey classification futures classifications and the disproportionately burdened. There are and the futures classification are elimination of references to fees charged approximately sixty cotton merchant independent measures of cotton quality for ‘‘initial classification and organizations of various sizes active in that serve different purposes, the Smith- certification’’, ‘‘review classification and trading U.S. cotton. Cotton merchants Doxey data is used by the cotton certification’’ and ‘‘combination voluntarily use the AMS cotton futures merchant community to indicate which services’’ in section 27.80. Conforming classification services annually under bales may be tenderable against a cotton changes would also remove references the Cotton Futures Act (Act) (7 U.S.C. futures contract. to eliminated sections 27.9, 27.14, 15b). Many of these cotton merchants USDA’s cotton classification 27.21., 27.36 and 27.47 and apply are small businesses under the criteria capabilities have dramatically improved current organizational terminology in established by the Small Business as a result of the extensive technological paragraph (h) of section 27.2 and section Administration (13 CFR 121.201). progress, increasing data accuracy and 27.39. Revisions being proposed reflect the operational efficiency. In addition to the As stated above, the cotton futures progress made in quality determination increased accuracy and reliability of classification includes a process by and data dissemination. The proposed Smith-Doxey data, improvements in which an initial futures classification is process changes in the classification of data management and the desire to followed up by a futures final

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classification. While not mandatory, this 4. Section 27.14 is revised to read as § 27.69 [Removed and Reserved] two-stage process has been deemed follows: 11. Section 27.69 is removed and appropriate by the industry. Therefore, reserved. sections 27.61–27.67, 27.69 and 27.72, § 27.14 Filing of classification requests. which address optional reviews of Requests for futures classification § 27.72 [Removed and Reserved] futures classifications, are irrelevant. shall be filed with the Cotton Quality 12. Section 27.72 is removed and Furthermore, reference to ‘‘initial Assurance Division within 10 days after reserved. classification and certification’’ fees in sampling and before classification of the 13. Section 27.80 is revised to read as paragraph (a) of section 27.80 are samples. follows: removed to avoid confusion with Smith- § 27.21 [Removed and Reserved] § 27.80 Fees; review classification, futures Doxey classifications and to reflect that 5. Section 27.21 is removed and classification and supervision. initial classification fees are already reserved. For services rendered by the Cotton specified in paragraph (b) of 7 CFR 6. Section 27.36 is revised to read as Division pursuant to this subpart, 28.909. Likewise, reference to ‘‘review follows: whether the cotton involved is classification and certification’’ fees in tenderable or not, the person requesting paragraph (b) of section 27.80 are § 27.36 Classification determinations the services shall pay fees as follows: based on official standards. removed since fees for review (a) [Reserved] classifications are already specified in All cotton shall be classified on the (b) [Reserved] 7 CFR 28.911. basis of the official cotton standards of (c) [Reserved] The term ‘‘combination services’’ in the United States in effect at the time of (d) Futures classification—$3.50 per paragraph (d) of section 27.80 reflects such classification. bale. 7. Section 27.39 is revised to read as the current practice of performing an Dated: September 23, 2011. follows: ‘‘initial’’ futures classification and an David R. Shipman, immediate ‘‘review’’ futures § 27.39 Issuance of classification records. Acting Administrator, Agricultural Marketing classification. Since Smith-Doxey Except as otherwise provided in this Service. classification data will serve as the section, as soon as practicable after the [FR Doc. 2011–25078 Filed 9–28–11; 8:45 am] initial futures classification when classification of cotton has been BILLING CODE 3410–02–P verified by a ‘‘review’’ futures completed by the Cotton and Tobacco classification, these services will be Programs, the Cotton Quality Assurance simply defined as ‘‘futures classification Division shall issue an electronic cotton DEPARTMENT OF AGRICULTURE services.’’ classification record showing the results Animal and Plant Health Inspection List of Subjects in 7 CFR Part 27 of such classification. Each electronic record shall bear the date of its issuance. Service Commodity futures, Cotton. The electronic record shall show the For the reasons set forth in the identification of the cotton according to 7 CFR Parts 305 and 319 preamble it is proposed that 7 CFR part the information in the possession of the [Docket No. APHIS–2009–0100] 27 be amended as follows: Cotton and Tobacco Programs, the classification of the cotton and such RIN 0579–AD35 PART 27—[AMENDED] other facts as the Deputy Administrator Irradiation Treatment; Location of 1. The authority citation for 7 CFR may require. Facilities in the Southern United States 8. Section 27.47 is revised to read as part 27 continues to read as follows: follows: AGENCY: Animal and Plant Health Authority: 7 U.S.C. 15b, 7 U.S.C. 4736, 7 Inspection Service, USDA. U.S.C. 1622(g). § 27.47 Tender or delivery of cotton; conditions. ACTION: Proposed rule. 2. In § 27.2, paragraph (h) is revised Subject to the provisions of §§ 27.52 to read as follows: SUMMARY: We are proposing to amend through 27.55, no cotton shall be the phytosanitary treatment regulations § 27.2 Terms defined. tendered or delivered on a basis grade to provide generic criteria for new * * * * * contract unless on or prior to the date irradiation treatment facilities in the (h) Cotton Quality Assurance fixed for delivery under such contract, Southern States of the United States. Division. The Cotton Quality Assurance and in advance of final settlement of the This action would allow irradiation Division at Memphis, Tennessee, shall contract, the person making the tender facilities to be located anywhere in provide supervision of futures cotton shall furnish to the person receiving the these States, subject to approval, rather classification. same a valid outstanding cotton than only in the currently approved classification record complying with the * * * * * locations. We are also proposing to regulations in this subpart, showing allow for the irradiation treatment of 3. Section 27.9 is revised to read as such cotton to be tenderable on a basis certain imported fruit from India and follows: grade contract. Thailand upon arrival in the United § 27.9 Classing Offices; Cotton Quality § 27.61 [Removed and Reserved] States. This action would facilitate the Assurance Division. importation of fruit requiring irradiation 9. The undesignated center heading treatment while continuing to provide Classing Offices shall be maintained preceding § 27.61 is removed and protection against the introduction of at points designated for the purpose by § 27.61 is removed and reserved.— pests of concern into the United States. the Administrator. The Cotton Quality 27.67, 27.69 and 27.72 are removed and DATES: Assurance Division shall provide reserved. We will consider all comments supervision of futures cotton that we receive on or before November classification and perform other duties §§ 27.62–27.67 [Removed and Reserved] 28, 2011. as assigned by the Deputy 10. Sections 27.62 through 27.67 are ADDRESSES: You may submit comments Administrator. removed and reserved. by either of the following methods:

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• Federal eRulemaking Portal: Go to regulations require regulated articles to allow importers to treat a number of http://www.regulations.gov/ be transported to the facility and imported articles with irradiation for #!documentDetail;D=APHIS-2009-0100– handled prior to treatment without which no other treatment is available 0001. significant risk that pests will escape. and which currently must be shipped • Postal Mail/Commercial Delivery: Safeguards to prevent the escape of long distances for treatment, such as Send your comment to Docket No. pests during transportation to and while guavas from Mexico. Locating APHIS–2009–0100, Regulatory Analysis at the facility include inspections, irradiation facilities in the Southern and Development, PPD, APHIS, Station physical separation of untreated and States would also facilitate the export of 3A–03.8, 4700 River Road Unit 118, treated articles, packaging of regulated certain commodities such as peaches Riverdale, MD 20737–1238. articles in sealed, insect-proof cartons, and stone fruits to countries to the south Supporting documents and any and shipping cartons in sealed of the United States. comments we receive on this docket containers. Seals must visually indicate In response to this request and in may be viewed at http:// if the cartons or containers have been anticipation of future requests to locate www.regulations.gov/ opened. The facility must maintain additional irradiation facilities in the #!docketDetail;D=APHIS-2009-0100 or records of all treatments and must Southern States of the United States, we in our reading room, which is located in periodically be recertified. These are proposing to establish generic room 1141 of the USDA South Building, conditions have allowed for the safe, phytosanitary criteria to replace the 14th Street and Independence Avenue, effective treatment of many different current criteria for irradiation facilities SW., Washington, DC. Normal reading kinds of articles, as is demonstrated by at the maritime ports of Gulfport, MS, room hours are 8 a.m. to 4:30 p.m., the track record of irradiation treatment Wilmington, NC, and the airport of Monday through Friday, except facilities currently operating in Hawaii Atlanta, GA, and apply to new holidays. To be sure someone is there to and other countries. irradiation treatment facilities in the help you, please call (202) 690–2817 In § 305.9, paragraph (a)(1) allows Southern States of the United States. before coming. irradiation treatment facilities to be Under these criteria, in conjunction FOR FURTHER INFORMATION CONTACT: Dr. located in any State of the United States, with the current criteria for irradiation Inder P. S. Gadh, Senior Risk Manager– except for the Southern States of facilities not located in the Southern Treatments, PPQ, APHIS, 4700 River Alabama, Arizona, California, Florida, States, new irradiation facilities could Road Unit 133, Riverdale, MD 20737– Georgia, Kentucky, Louisiana, be established in all the Southern States 1236; (301) 734–0627. Mississippi, Nevada, New Mexico, for the treatment of regulated articles North Carolina, South Carolina, that are imported, moved interstate from SUPPLEMENTARY INFORMATION: Tennessee, Texas, and Virginia. When Hawaii or U.S. territories, or moved Background the irradiation regulations were interstate from areas quarantined for The phytosanitary treatment established, these Southern States were certain pests of concern. These generic regulations contained in 7 CFR part 305 identified as having conditions criteria would be supplemented as (referred to below as the regulations) set favorable for the establishment of exotic necessary by additional measures, out the general requirements for fruit flies. The location restrictions which would be described in a performing treatments and certifying or served as an additional safeguard compliance agreement (discussed approving treatment facilities for fruits, against the possibility that fruit flies below), based on pests of concern vegetables, and other articles to prevent could escape from imported articles associated with specific regulated the introduction or dissemination of prior to treatment and become articles to be treated at the facility and plant pests or noxious weeds into or established in the United States. the location of the specific facility. through the United States. The Animal The regulations do allow irradiation Using APHIS-approved irradiation facilities located in the United States to and Plant Health Inspection Service facilities to be located at the maritime treat imported articles offers the (APHIS) of the U.S. Department of ports of Gulfport, MS, Wilmington, NC, advantage of greater ease of monitoring Agriculture administers these and the airport of Atlanta, GA, although treatment. Using generic criteria for regulations. no irradiation facilities have been established in these locations. APHIS future irradiation facilities located in Irradiation Treatment in Southern conducted site-specific evaluations for Southern States would make explicit States these three locations and determined our criteria for approving these facilities The regulations in § 305.9 set out that regulated articles can be safely while eliminating the need to undertake irradiation treatment requirements for transported to irradiation facilities at rulemaking in order to approve new imported regulated articles; regulated these locations under special conditions facilities. articles moved interstate from Hawaii, to mitigate the possible escape of pests As part of this action, we have Puerto Rico, and the U.S. Virgin Islands; of concern. prepared a treatment evaluation document (TED) entitled ‘‘Generic and regulated articles moved interstate APHIS has received a petition to open Phytosanitary Criteria for Establishing from areas quarantined for certain pests an irradiation facility in McAllen, TX, to Locations for Irradiation Facilities in the of concern. Under § 305.9, all facilities treat imported articles or articles moved Southern United States.’’ Copies of the used to provide irradiation treatment for interstate within the United States. In TED may be obtained from the person these articles must operate under a addition, the irradiation industry has listed under FOR FURTHER INFORMATION compliance agreement with APHIS and shown considerable interest in locating CONTACT and may be viewed on the be certified as capable of delivering irradiation facilities in the Southern Internet on the Regulations.gov Web site required irradiation treatment dosages United States, especially in proximity to or in our reading room (see ADDRESSES and handling articles to prevent the Mexican border. Currently, no above for a link to Regulations.gov and reinfestation of treated articles. An irradiation facility is available near the information on the location and hours of inspector 1 monitors all treatments. The Mexican border. Locating irradiation facilities in the Southern States would the reading room). In the TED, we 1 The regulations define an inspector as ‘‘Any concluded that the pest risks from individual authorized by the Administrator of Protection, Department of Homeland Security, to irradiation facilities in the Southern APHIS or the Commissioner of Customs and Border enforce the regulations in this part.’’ States can be adequately managed

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through the use of special conditions to articles if the facility was unable to into contact with host material en route mitigate the possible escape of pests of properly treat a shipment. to the irradiation facility. concern. Under this proposal, paragraph In addition to the current We are therefore proposing to amend (a)(1)(v) of § 305.9 would only allow requirements to ensure the safe the regulations by replacing the current irradiation facilities in Southern States transport of regulated material to and criteria for irradiation facilities at the to treat articles that are approved by from the irradiation facility, we are also maritime ports of Gulfport, MS, APHIS for treatment at that facility. If, proposing to require in paragraph Wilmington, NC, and the airport of during the approval process for (a)(1)(vii) that the conveyance Atlanta, GA, in paragraph (a)(1) of regulated articles at irradiation facilities transporting the regulated article to the § 305.9 with generic phytosanitary in Southern States, additional irradiation facility would need to be criteria for any irradiation facility in a safeguards are deemed necessary during either refrigerated, via motorized Southern State. The new criteria would transport or while at the irradiation refrigeration equipment or other have to be followed in addition to the facilities for the pests of concern, the methods including ice or insulation, or current requirements that apply to all compliance agreement for the facility air conditioned to a temperature that irradiation facilities. The proposed would be amended accordingly. would minimize the mobility of the generic criteria for new facilities in the Under proposed paragraph (a)(1)(vi) pests of concern for the article. Fruits Southern States are based on the current of § 305.9, arrangements for treatment and vegetables are typically transported conditions for allowing irradiation would need to be made before the in refrigerated or air conditioned facilities at the maritime ports of departure of a consignment from its port conveyances in order to preserve Gulfport, MS, Wilmington, NC, and the of entry or points of origin in the United freshness of the commodity and prevent airport of Atlanta, GA. As no irradiation States. This would mean that untreated development of toxins that may affect facilities have been established in these shipments of regulated articles arriving their flavor. The current regulations for irradiation three locations, the proposed generic at the facility would not have to wait for facilities at the maritime ports of criteria would not impact any existing an extended period of time for Gulfport, MS, or Wilmington, NC, or the irradiation facilities. irradiation treatment. The expeditious airport of Atlanta, GA, require blacklight treatment of the articles would In paragraph (a)(1)(i) of § 305.9, we or sticky paper to be used within the are proposing that prospective facility minimize the risk of pests of concern irradiation facility and other trapping operators in Southern States would have maturing in fruits, vegetables, and other methods to be used within the 4 square to submit a detailed layout of the facility articles. miles surrounding the facility. To site and its location to APHIS. APHIS The current regulations for irradiation minimize the presence of host material would evaluate plant health risks based facilities at the maritime ports of for the pests of concern for irradiation on the proposed location and layout of Gulfport, MS, or Wilmington, NC, or the facilities in Southern States generally, the facility site before a facility was airport of Atlanta, GA, prohibit the we are proposing in paragraph approved. APHIS would only approve a movement of untreated fruits and (a)(1)(viii) of § 305.9 that the facility proposed facility if the Administrator vegetables through the Southern States maintain and provide APHIS an determines that regulated articles can be and require that the irradiation facility updated map identifying places where safely transported to the facility from and APHIS agree in advance on the horticultural or other crops are grown the port of entry or points of origin in route by which shipments are allowed within 4 square miles of the facility. the United States. Proposed paragraph to move to the irradiation facility. For APHIS will use this information to (a)(1)(ii) of § 305.9 provides that the irradiation facilities in Southern States, determine if any host material of government of the Southern State in we are proposing in paragraph (a)(1)(vi) concern is present. To help prevent which the facility would be located of § 305.9 that APHIS and the establishment of pests in the unlikely would also have to concur in writing irradiation facility would have to agree event that they escape despite the with the establishment of the irradiation in advance about all parameters, such as required precautions, the location of any facility; if it does not concur, the State time, routing, and conveyance, by host material within 4 square miles of government must provide a written which every consignment would move the facility would necessitate specific explanation of concern based on pest from the port of entry or points of origin trapping or other pest monitoring risks. In instances where the State in the United States to the irradiation activities to help prevent establishment government does not concur with the facility. In most instances, the route of any escaped pests of concern, which proposed facility location, APHIS and would be determined by establishing would be funded by the facility and the State would need to agree on a the shortest route between the port of described in the compliance agreement. strategy to resolve such risks before entry or points of origin in the United All trapping and pest monitoring APHIS approved the facility. States and the irradiation facility that activities would need to be approved by Under this proposal, paragraphs does not include an area that contains APHIS. Such activities would include (a)(1)(iii) and (a)(1)(iv) of § 305.9 would host material for pests of concern during the use of blacklight or sticky paper require irradiation facilities in Southern the time of year that the host material within the irradiation facility, as States to meet certain conditions that is most abundant in the region. This required in the current regulations for are currently required for irradiation route would then be used regardless of irradiation facilities at the maritime facilities at the maritime ports of the time of year, as an area free of host ports of Gulfport, MS, or Wilmington, Gulfport, MS, or Wilmington, NC, or the material during the time of year that it NC, or the airport of Atlanta, GA. The airport of Atlanta, GA. These paragraphs is most abundant would be unlikely to irradiation facility would also need to would provide, respectively, that grow host material at another time of have a pest management plan within the untreated articles may not be removed year. This predetermined route would facility. from their packaging prior to treatment reduce the amount of time that a Irradiation facilities would also be under any circumstances, and that shipment would have to wait before required to comply with any additional facilities must have contingency plans, undergoing irradiation treatment and requirements that APHIS might require approved by APHIS, for safely would reduce the risk that any pests of for a particular facility based on local destroying or disposing of regulated concern in the shipments would come conditions and any other risk factors of

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concern. This could include inspection jurisdiction over nuclear facilities and therefore, has been reviewed by the for certain pests for which irradiation is materials. Office of Management and Budget. not an approved treatment. Proposed We have prepared an economic Irradiation of Fruits From India and paragraph (a)(1)(ix) of § 305.9 would analysis for this rule. The economic Thailand require that facilities comply with any analysis provides a cost-benefit analysis, additional APHIS requirements. These Currently, the regulations in parts 318 as required by Executive Order 12866, requirements would be contained in a and 319 allow the importation of certain and an analysis of the potential compliance agreement, which is fruits from India (mangos), Mexico economic effects of this action on small currently required for all facilities in (guavas), Thailand (litchis, longans, entities, as required by the Regulatory paragraph (c) of § 305.9. In that mangoes, mangosteens, pineapples, and Flexibility Act. The economic analysis paragraph, we are proposing to add that rambutans), and Vietnam (dragon is summarized below. Copies of the full compliance agreements for facilities in fruits), and the interstate movement of analysis are available by contacting the Southern States may contain additional several fruits and vegetables from person listed under FOR FURTHER provisions. Hawaii, after they have received INFORMATION CONTACT or on the irradiation treatment. While fruits and Regulations.gov Web site (see Irradiation Facilities in All the United vegetables moving from Mexico, ADDRESSES above for instructions for States Vietnam, and Hawaii may receive accessing Regulations.gov). irradiation at either the point of origin The proposed rule would allow for Currently, as part of the approval or upon arrival in the mainland United irradiation treatment of tropical fruits process for irradiation facilities, APHIS States, fruit from India and Thailand from India and Thailand in either the considers whether a proposed must be treated prior to arrival in the exporting country or the United States irradiation facility is located within the United States. The regulations in and for the establishment of irradiation local commuting area for APHIS § 305.9, however, allow for irradiation facilities in the Southern United States. employees so that they will be able to treatment of articles either prior to or Using APHIS-approved irradiation perform the oversight and monitoring after arrival in the United States, facilities located in the United States to activities required by § 305.9. When provided an APHIS-approved facility is treat imported articles offers the imported articles are to be treated at a available. The regulations require advantage of greater ease of monitoring facility, APHIS also considers whether safeguards to ensure that regulated treatment. the facility is located within an area articles are safely transported to the The proposed rule would benefit U.S. over which the U.S. Department of irradiation facility from the port of entities by clearly presenting the criteria Homeland Security 2 has customs arrival without escape of plant pests in that would govern the approval of authority for enforcement purposes. We transit or at the irradiation facility. additional irradiation facilities in the are proposing to revise paragraph (e), These safeguards have successfully Southern United States, thereby which contains requirements for prevented the introduction or facilitating their establishment. APHIS monitoring and interagency agreements dissemination of plant pests into or has not identified any costs associated for irradiation treatment facilities, to through the United States via the with establishing the generic criteria for require all irradiation facilities to be importation or interstate movement of irradiation facility approval described in located within the local commuting area irradiated articles since 1996 when this the proposed rule. Beyond helping for APHIS employees 3 for oversight and irradiation was first used as a to make the approval of future monitoring purposes. For facilities phytosanitary treatment. irradiation facilities in the Southern treating imported articles, we are also We are proposing to amend § 319.56– United States an efficient process, we do proposing to require in paragraph (e)(1) 46 to allow for irradiation treatment of not anticipate that the criteria set forth of § 305.9, which pertains to monitoring mangos from India in either India or the in the proposed rule would result in of such facilities, that the location of the United States and § 319.56–47 to allow economic impacts or any significant facility would have to be within an area for irradiation treatment of tropical costs for U.S. entities, large or small over which the U.S. Department of fruits from Thailand in either Thailand based on the available data. APHIS is, Homeland Security has customs or the United States. Fruit from India however, interested in receiving authority for enforcement purposes. and Thailand would still be subject to comments on the potential economic If regulatory oversight and requirements designed to ensure safe costs associated with the proposed requirements by other agencies also transportation of the articles, including criteria. These criteria include requiring apply, we are also proposing to require insect-proof packaging, inspection, and facilities to be within the local in paragraph (b) of § 305.9, which issuance of a phytosanitary certificate commuting area for APHIS employees describes requirements for approval of by the national plant protection and within an area over which the U.S. facilities, that they must concur in organization of the country of export. Department of Homeland Security writing with the establishment of the Based on our experience with India’s customs authority for enforcement facility prior to APHIS approval. For and Thailand’s compliance with these purposes, obtaining written concurrence example, irradiation facilities that use a requirements for fruit currently from the government of the Southern nuclear source would have to receive irradiated in these countries, we are State in which the facility would be concurrence from the Nuclear confident that these countries have the located, providing a detailed layout of Regulatory Commission, which has ability to comply with all APHIS the facility location, maintaining and requirements and fruit from these providing an updated map identifying places where horticultural or other 2 The U.S. Department of Homeland Security is countries could be safely treated in the assigned authority to accept entries of merchandise, United States. crops are grown within 4 square miles to collect duties, and to enforce the provisions of of the facility, trapping or other pest the customs and navigation laws in force. Executive Order 12866 and Regulatory monitoring activities, agreeing in 3 Commuting area would be determined by Flexibility Act advance about all parameters by which contacting the local APHIS Plant Protection and Quarantine office, State Plant Health Director, This proposed rule has been the consignment will move from the located in each State, Eastern Regional Office, or determined to be significant for the point of entry or origin to the treatment Western Regional Office. purposes of Executive Order 12866 and, facility, using refrigerated or air

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conditioned conveyance to transport Paperwork Reduction Act Estimated annual number of articles to the facility, ensuring that In accordance with section 3507(d) of respondents: 3. cartons are off-loaded from conveyances the Paperwork Reduction Act of 1995 Estimated annual number of in a safeguarded environment, (44 U.S.C. 3501 et seq.), the information responses per respondent: 2. maintaining physical separation of collection or recordkeeping Estimated annual number of treated articles from untreated articles, requirements included in this proposed responses: 6. and developing a contingency plan for rule have been submitted for approval to Estimated total annual burden on safely destroying or disposing of the Office of Management and Budget respondents: 14 hours. (Due to untreated or improperly treated articles. (OMB). Please send written comments averaging, the total annual burden hours The entities potentially affected by to the Office of Information and may not equal the product of the annual the proposed rule would be the eventual Regulatory Affairs, OMB, Attention: number of responses multiplied by the clients of irradiation facilities Desk Officer for APHIS, Washington, DC reporting burden per response.) established in the southern United 20503. Please state that your comments Copies of this information collection States. They can be largely classified refer to Docket No. APHIS–2009–0100. can be obtained from Mrs. Celeste within the following two industries: Please send a copy of your comments to: Sickles, APHIS’ Information Collection Post Harvest Crop Activities (except (1) Docket No. APHIS–2009–0100, Coordinator, at (301) 851–2908. cotton ginning) (NAICS 115114), and Regulatory Analysis and Development, E-Government Act Compliance Fresh Fruit and Vegetable Merchant PPD, APHIS, Station 3A–03.8, 4700 Wholesalers (NAICS 424480). River Road Unit 118, Riverdale, MD The Animal and Plant Health Under these circumstances, the 20737–1238, and (2) Clearance Officer, Inspection Service is committed to Administrator of the Animal and Plant OCIO, USDA, room 404–W, 14th Street compliance with the E-Government Act Health Inspection Service has and Independence Avenue, SW., to promote the use of the Internet and determined that this action would not Washington, DC 20250. A comment to other information technologies, to have a significant economic impact on OMB is best assured of having its full provide increased opportunities for a substantial number of small entities. effect if OMB receives it within 30 days citizen access to Government Executive Order 12988 of publication of this proposed rule. information and services, and for other This proposed rule establishes criteria purposes. For information pertinent to This proposed rule has been reviewed for irradiation facilities in the Southern E-Government Act compliance related under Executive Order 12988, Civil States. Implementing this proposed rule to this proposed rule, please contact Justice Reform. If this proposed rule is will require respondents to provide Mrs. Celeste Sickles, APHIS’ adopted: (1) No retroactive effect will be APHIS with an updated map identifying Information Collection Coordinator, at given to this rule; and (2) administrative horticultural/crop areas and (301) 851–2908. proceedings will not be required before contingency plans, approved by APHIS, List of Subjects parties may file suit in court challenging for safely destroying or disposing of this rule. regulated articles. 7 CFR Part 305 National Environmental Policy Act We are soliciting comments from the Irradiation, Phytosanitary treatment, public (as well as affected agencies) Plant diseases and pests, Quarantine, To provide the public with concerning our proposed information documentation of APHIS’ review and Reporting and recordkeeping collection and recordkeeping requirements. analysis of any potential environmental requirements. These comments will impacts associated with providing help us: 7 CFR Part 319 generic criteria for new irradiation (1) Evaluate whether the proposed Coffee, Cotton, Fruits, Imports, Logs, treatment facilities in the Southern information collection is necessary for States of the United States, we have Nursery stock, Plant diseases and pests, the proper performance of our agency’s Quarantine, Reporting and prepared an environmental assessment. functions, including whether the The environmental assessment was recordkeeping requirements, Rice, information will have practical utility; Vegetables. prepared in accordance with: (1) The (2) Evaluate the accuracy of our National Environmental Policy Act of estimate of the burden of the proposed Accordingly, we propose to amend 7 1969 (NEPA), as amended (42 U.S.C. information collection, including the CFR parts 305 and 319 as follows: 4321 et seq.), (2) regulations of the validity of the methodology and Council on Environmental Quality for PART 305—PHYTOSANITARY assumptions used; TREATMENTS implementing the procedural provisions (3) Enhance the quality, utility, and of NEPA (40 CFR parts 1500–1508), (3) clarity of the information to be 1. The authority citation for part 305 USDA regulations implementing NEPA collected; and continues to read as follows: (7 CFR part 1b), and (4) APHIS’ NEPA (4) Minimize the burden of the Implementing Procedures (7 CFR part Authority: 7 U.S.C. 7701–7772 and 7781– information collection on those who are 7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 372). to respond (such as through the use of 2.80, and 371.3. The environmental assessment may appropriate automated, electronic, be viewed on the Regulations.gov Web mechanical, or other technological 2. Section 305.9 is amended as site or in our reading room. (A link to collection techniques or other forms of follows: Regulations.gov and information on the information technology; e.g., permitting a. By revising paragraph (a)(1) to read location and hours of the reading room electronic submission of responses). as set forth below. are provided under the heading Estimate of burden: Public reporting b. In paragraph (b), by adding a ADDRESSES at the beginning of this burden for this collection of information sentence after the first sentence to read proposed rule.) In addition, copies may is estimated to average 2.3333 hours per as set forth below. be obtained by calling or writing to the response. c. By adding a sentence after the individual listed under FOR FURTHER Respondents: Irradiation facilities in paragraph (c) introductory text heading INFORMATION CONTACT. Southern United States. to read as set forth below.

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d. In paragraph (e) introductory text, consignment from its port of entry or PART 319—FOREIGN QUARANTINE by adding a sentence after the second points of origin in the United States. NOTICES sentence to read as set forth below. APHIS and the facility must agree on all e. By adding a sentence after the parameters, such as time, routing, and 3. The authority citation for part 319 paragraph (e)(1) introductory text conveyance, by which the consignment continues to read as follows: heading to read as set forth below. will move from the port of entry or Authority: 7 U.S.C. 450, 7701–7772, and points of origin in the United States to 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR § 305.9 Irradiation treatment requirements. the treatment facility. 2.22, 2.80, and 371.3. * * * * * (vii) Regulated articles must be § 319.56–46 [Amended] (a) * * * conveyed to the facility in a refrigerated (1) Where certified irradiation 4. Section § 319.56–46 is amended as (via motorized refrigeration equipment facilities are available, an approved follows: or other methods including ice or irradiation treatment may be conducted a. In paragraph (a), by removing the insulation) or air-conditioned for any imported regulated article either words ‘‘in India’’. conveyance at a temperature that prior to shipment to the United States b. In paragraph (e) introductory text, minimizes the mobility of the pests of or in the United States. For any by removing the words ‘‘certifying that concern for the article. regulated article moved interstate from the fruit received the required Hawaii or U.S. territories, irradiation (viii) The facility must maintain and irradiation treatment. The phytosanitry treatment may be conducted either prior provide APHIS with an updated map certificate must also bear’’ and adding to movement to the mainland United identifying places where horticultural or the word ‘‘with’’ in their place. States or in the mainland United States. other crops are grown within 4 square miles of the facility. Proximity of host § 319.56–47 [Amended] Irradiation facilities may be located in 5. Section 319.56–47 is amended as any State on the mainland United material to the facility will necessitate trapping or other pest monitoring follows: States. For irradiation facilities located a. In paragraph (b), by removing the in the States of Alabama, Arizona, activities to help prevent establishment of any escaped pests of concern, as second sentence. California, Florida, Georgia, Kentucky, b. In paragraph (c)(1), by removing the Louisiana, Mississippi, Nevada, New approved by APHIS; these activities will be listed in the compliance agreement words ‘‘that the litchi were treated with Mexico, North Carolina, South Carolina, irradiation as described in paragraph (b) Tennessee, Texas, and Virginia, the required in paragraph (c)(1)(i) of this section. The treatment facility must of this section and’’. following additional conditions must be c. In paragraph (c)(2), by removing the met: have a pest management plan within the facility. words ‘‘with an additional declaration (i) Prospective facility operators must stating that the longan, mango, submit a detailed layout of the facility (ix) The facility must comply with any additional requirements that APHIS mangosteen, pineapple, or rambutan site and its location to APHIS. APHIS were treated with irradiation as will evaluate plant health risks based on may require to prevent the escape of plant pests during transport to and from described in paragraph (b) of this the proposed location and layout of the section’’. facility site. APHIS will only approve a the irradiation facility itself, for a proposed facility if the Administrator particular facility based on local Done in Washington, DC, this 22nd day of September 2011. determines that regulated articles can be conditions, and for any other risk factors safely transported to the facility from of concern. These activities will be Edward Avalos, port of entry or points of origin in the listed in the compliance agreement Under Secretary for Marketing and Regulatory United States. required in paragraph (c)(1)(i) of this Programs. (ii) The government of the State in section. [FR Doc. 2011–25092 Filed 9–28–11; 8:45 am] which the facility is to be located must * * * * * BILLING CODE 3410–34–P concur in writing with the (b) * * * Other agencies that have establishment of the facility or, if it does regulatory oversight and requirements not concur, must provide a written must concur in writing with the DEPARTMENT OF AGRICULTURE explanation of concern based on pest establishment of the facility prior to Agricultural Research Service risks. In instances where the State APHIS approval. government does not concur with the (c) * * * Compliance agreements for 7 CFR Part 505 proposed facility location, APHIS and facilities located in States listed in the State will agree on a strategy to paragraph (a)(1) of this section may also Modification of Interlibrary Loan Fee resolve the pest risk concerns prior to contain additional provisions as Schedule; Correction APHIS approval. described in paragraphs (a)(1)(i) through (iii) Untreated articles may not be (a)(1)(ix) of this section. * * * AGENCY: Agricultural Research Service, removed from their packaging prior to USDA. * * * * * treatment under any circumstances. ACTION: Proposed rule; correction. (iv) The facility must have (e) * * * Facilities must be located contingency plans, approved by APHIS, within the local commuting area for SUMMARY: The proposed rule published for safely destroying or disposing of APHIS employees for inspection in the Federal Register on September regulated articles if the facility is unable purposes. 16, 2011 (76 FR 57681) announced to properly treat a shipment. (1) * * * Facilities shall be located Agricultural Research Service intent to (v) The facility may only treat articles within an area over which the U.S. seek comments on renewing the approved by APHIS for treatment at the Department of Homeland Security is National Agricultural Library’s facility. Approved articles will be listed assigned authority to accept entries of regulation to increase the interlibrary in the compliance agreement required in merchandise, to collect duties, and to loan fees. This document corrects the paragraph (c)(1)(i) of this section. enforce the provisions of the customs RIN number. (vi) Arrangements for treatment must and navigation laws in force. * * * FOR FURTHER INFORMATION CONTACT: Kay be made before the departure of a * * * * * Derr, 301–504–5879.

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Correction warning. The proposed AD would to an address listed under the In the Federal Register of September require actions that are intended to ADDRESSES section. Include ‘‘Docket No. 16, 2011, in FR Doc. 2011–23723, on address the unsafe condition described FAA–2011–1040; Directorate Identifier pages 57681–57682 in the heading in the MCAI. 2011–CE–029–AD’’ at the beginning of section, correct the RIN number to read DATES: We must receive comments on your comments. We specifically invite as follows: RIN 0518–AA04 this proposed AD by November 14, comments on the overall regulatory, 2011. economic, environmental, and energy Yvette Anderson, aspects of this proposed AD. We will ADDRESSES: You may send comments by Federal Register Liaison Officer for consider all comments received by the any of the following methods: Agricultural Research Service. closing date and may amend this • Federal eRulemaking Portal: Go to proposed AD because of those [FR Doc. 2011–24367 Filed 9–28–11; 8:45 am] http://www.regulations.gov. Follow the comments. BILLING CODE P instructions for submitting comments. • We will post all comments we Fax: (202) 493–2251. receive, without change, to http:// • Mail: U.S. Department of regulations.gov, including any personal DEPARTMENT OF TRANSPORTATION Transportation, Docket Operations, information you provide. We will also M–30, West Building Ground Floor, post a report summarizing each Federal Aviation Administration Room W12–140, 1200 New Jersey substantive verbal contact we receive Avenue, SE., Washington, DC 20590. about this proposed AD. 14 CFR Part 39 • Hand Delivery: U.S. Department of [Docket No. FAA–2011–1040; Directorate Transportation, Docket Operations, Discussion Identifier 2011–CE–029–AD] M–30, West Building Ground Floor, The European Aviation Safety Agency Room W12–140, 1200 New Jersey (EASA), which is the Technical Agent RIN 2120–AA64 Avenue, SE., Washington, DC 20590, for the Member States of the European between 9 a.m. and 5 p.m., Monday Community, has issued EASA AD No.: Airworthiness Directives; Piaggio Aero through Friday, except Federal holidays. Industries S.p.A. Airplanes 2011–0132, dated July 12, 2011 (referred For service information identified in to after this as ‘‘the MCAI’’), to correct AGENCY: Federal Aviation this proposed AD, contact Piaggio Aero an unsafe condition for the specified Administration (FAA), Department of Industries S.p.A.-Airworthiness Office, products. The MCAI states: Transportation (DOT). Via Luigi Cibrario, 4–16154 Genova- Italy; phone: +39 010 6481353; fax: +39 One event of in-flight baggage door ACTION: opening occurred on an in-service aeroplane Notice of proposed rulemaking 010 6481881; e-mail: (NPRM). due to a defective locking mechanism or [email protected]; Internet: installation thereof; the BAG DOOR warning SUMMARY: We propose to adopt a new http://www.piaggioaero.com/#/en/after- light went on properly before the event, but airworthiness directive (AD) for certain sales/service-support. You may review was ignored by the pilot, who misinterpreted copies of the referenced service it as a false warning. Piaggio Aero Industries S.p.A. Model NOTE: false in-service BAG DOOR P–180 airplanes. This proposed AD information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, warnings had occurred on other P.180 results from mandatory continuing aeroplanes, and Piaggio Aero Industries (PAI) airworthiness information (MCAI) Missouri 64106. For information on the had issued Service Bulletin (SB) No. 80–0223 originated by an aviation authority of availability of this material at the FAA, revision 1 to improve the installation of the another country to identify and correct call (816) 329–4148. baggage door warning microswitch and to modify the locking mechanism if necessary. an unsafe condition on an aviation Examining the AD Docket product. The MCAI describes the unsafe This condition, if not detected and You may examine the AD docket on corrected, could lead to in-flight detachment condition as: the Internet at http:// of the door, which could hit and damage the One event of in-flight baggage door www.regulations.gov; or in person at the left propeller and/or the vertical or horizontal opening occurred on an in-service aeroplane Docket Management Facility between stabilizer, possibly resulting in loss of control of the aeroplane, or in injuries to persons or due to a defective locking mechanism or 9 a.m. and 5 p.m., Monday through installation thereof; the BAG DOOR warning damage to property on the ground. light went on properly before the event, but Friday, except Federal holidays. The AD This AD requires an inspection of the was ignored by the pilot, who misinterpreted docket contains this proposed AD, the locking mechanism of the baggage door and it as a false warning. regulatory evaluation, any comments its proper adjustment, in accordance with NOTE: False in-service BAG DOOR received, and other information. The PAI SB No. 80–0289 revision 1; if baggage warnings had occurred on other P.180 street address for the Docket Office door lockpins do not reach the correct aeroplanes, and Piaggio Aero Industries (PAI) (telephone (800) 647–5527) is in the engagement, or false BAG DOOR warnings were reported by flight crew, this AD had issued Service Bulletin (SB) No. 80–0223 ADDRESSES section. Comments will be revision 1 to improve the installation of the requires also a modification of the door available in the AD docket shortly after mechanism in accordance with PAI SB No. baggage door warning microswitch and to receipt. modify the locking mechanism if necessary. 80–0223 revision 1. This condition, if not detected and FOR FURTHER INFORMATION CONTACT: Instances of the baggage door open light corrected, could lead to in-flight detachment Mike Kiesov, Aerospace Engineer, FAA, illuminating have occurred when the of the door, which could hit and damage the Small Airplane Directorate, 901 Locust, baggage door was not open. This left propeller and/or the vertical or horizontal Room 301, Kansas City, Missouri 64106; condition, if not corrected, could result stabilizer, possibly resulting in loss of control telephone: (816) 329–4144; fax: (816) in the pilot disregarding a valid of the aeroplane, or in injuries to persons or 329–4090; e-mail: [email protected]. damage to property on the ground. warning. You may obtain further SUPPLEMENTARY INFORMATION: information by examining the MCAI in Instances of the baggage door open light the AD docket. illuminating have occurred when the Comments Invited baggage door was not open. This We invite you to send any written Relevant Service Information condition, if not corrected, could result relevant data, views, or arguments about Piaggio Aero Industries S.p.A. has in the pilot disregarding a valid this proposed AD. Send your comments issued Service Bulletin No. 80–0223,

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Revision 1, dated July 31, 2009; and We are issuing this rulemaking under Comments Due Date Mandatory Service Bulletin No. 80– the authority described in ‘‘Subtitle VII, (a) We must receive comments by 0289, Revision 1, dated January 11, Part A, Subpart III, Section 44701: November 14, 2011. 2011. The actions described in this General requirements.’’ Under that Affected ADs service information are intended to section, Congress charges the FAA with (b) None. correct the unsafe condition identified promoting safe flight of civil aircraft in in the MCAI. air commerce by prescribing regulations Applicability for practices, methods, and procedures FAA’s Determination and Requirements (c) This AD applies to Piaggio Aero the Administrator finds necessary for Industries S.p.A. P–180 Airplane Model P– of the Proposed AD safety in air commerce. This regulation 180 airplanes, serial numbers affected 1002 This product has been approved by is within the scope of that authority and 1004 through 1189, certificated in any the aviation authority of another because it addresses an unsafe condition category. country, and is approved for operation that is likely to exist or develop on Subject in the United States. Pursuant to our products identified in this rulemaking (d) Air Transport Association of America bilateral agreement with this State of action. (ATA) Code 52: Doors. Design Authority, they have notified us of the unsafe condition described in the Regulatory Findings Reason MCAI and service information We determined that this proposed AD (e) The mandatory continuing referenced above. We are proposing this would not have federalism implications airworthiness information (MCAI) states: AD because we evaluated all under Executive Order 13132. This One event of in-flight baggage door information and determined the unsafe proposed AD would not have a opening occurred on an in-service aeroplane condition exists and is likely to exist or substantial direct effect on the States, on due to a defective locking mechanism or installation thereof; the BAG DOOR warning develop on other products of the same the relationship between the national type design. light went on properly before the event, but Government and the States, or on the was ignored by the pilot, who misinterpreted Differences Between This Proposed AD distribution of power and it as a false warning. and the MCAI or Service Information responsibilities among the various NOTE: false in-service BAG DOOR levels of government. warnings had occurred on other P.180 We have reviewed the MCAI and For the reasons discussed above, I aeroplanes, and Piaggio Aero Industries (PAI) related service information and, in certify this proposed regulation: had issued Service Bulletin (SB) No. 80–0223 general, agree with their substance. But revision 1 to improve the installation of the 1. Is not a ‘‘significant regulatory we might have found it necessary to use baggage door warning microswitch and to action’’ under Executive Order 12866; different words from those in the MCAI modify the locking mechanism if necessary. to ensure the AD is clear for U.S. 2. Is not a ‘‘significant rule’’ under the This condition, if not detected and DOT Regulatory Policies and Procedures corrected, could lead to in-flight detachment operators and is enforceable. In making of the door, which could hit and damage the these changes, we do not intend to differ (44 FR 11034, February 26, 1979); and 3. Will not have a significant left propeller and/or the vertical or horizontal substantively from the information stabilizer, possibly resulting in loss of control provided in the MCAI and related economic impact, positive or negative, of the aeroplane, or in injuries to persons or service information. on a substantial number of small entities damage to property on the ground. We might also have proposed under the criteria of the Regulatory This AD requires an inspection of the different actions in this AD from those Flexibility Act. locking mechanism of the baggage door and in the MCAI in order to follow FAA We prepared a regulatory evaluation its proper adjustment, in accordance with policies. Any such differences are of the estimated costs to comply with PAI SB No. 80–0289 revision 1; if baggage this proposed AD and placed it in the door lockpins do not reach the correct highlighted in a NOTE within the engagement, or false BAG DOOR warnings proposed AD. AD docket. were reported by flight crew, this AD Costs of Compliance List of Subjects in 14 CFR Part 39 requires also a modification of the door mechanism in accordance with PAI SB No. We estimate that this proposed AD Air transportation, Aircraft, Aviation 80–0223 revision 1. will affect 102 products of U.S. registry. safety, Incorporation by reference, Instances of the baggage door open light We also estimate that it would take Safety. illuminating have occurred when the baggage about 29 work-hours per product to The Proposed Amendment door was not open. This condition, if not comply with the basic requirements of corrected, could result in the pilot this proposed AD. The average labor Accordingly, under the authority disregarding a valid warning. rate is $85 per work-hour. Required delegated to me by the Administrator, Actions and Compliance parts would cost about $4,482 per the FAA proposes to amend 14 CFR part (f) Unless already done, do the following product. 39 as follows: actions: Based on these figures, we estimate PART 39—AIRWORTHINESS (1) If false in-flight BAG DOOR indications the cost of the proposed AD on U.S. have occurred, within 165 hours time-in- operators to be $708,594, or $6,947 per DIRECTIVES service (TIS) after the effective date of this product. AD or within the next 60 days after the 1. The authority citation for part 39 effective date of this AD, whichever occurs Authority for This Rulemaking continues to read as follows: first, do the following actions: Title 49 of the United States Code Authority: 49 U.S.C. 106(g), 40113, 44701. (i) Modify the locking mechanism specifies the FAA’s authority to issue following the Accomplishment Instructions rules on aviation safety. Subtitle I, § 39.13 [Amended] in Piaggio Aero Industries S.p.A. Service 2. The FAA amends § 39.13 by adding Bulletin No. 80–0223, Revision 1, dated July section 106, describes the authority of 31, 2009. the FAA Administrator. ‘‘Subtitle VII: the following new AD: (ii) Inspect the screws on the locking Aviation Programs,’’ describes in more Piaggio Aero Industries S.p.A.: Docket No. device installed on the door handle for detail the scope of the Agency’s FAA–2011–1040; Directorate Identifier proper tightness and correct as necessary authority. 2011–CE–029–AD. after applying a thread locker following Part

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D of the Accomplishment Instructions in FAA, has the authority to approve AMOCs Issued in Kansas City, Missouri on Piaggio Aero Industries S.p.A. Mandatory for this AD, if requested using the procedures September 20, 2011. Service Bulletin No. 80–0289, Revision 1, found in 14 CFR 39.19. Send information to Wes Ryan, dated January 11, 2011. ATTN: Mike Kiesov, Aerospace Engineer, Acting Manager, Small Airplane Directorate, (2) If false in-flight BAG DOOR indications FAA, Small Airplane Directorate, 901 Locust, Aircraft Certification Service. have not occurred, within 165 hours TIS after Room 301, Kansas City, Missouri 64106; the effective date of this AD or within the [FR Doc. 2011–25006 Filed 9–28–11; 8:45 am] telephone: (816) 329–4144; fax: (816) 329– next 60 days after the effective date of this BILLING CODE 4910–13–P AD, whichever occurs first, do the following 4090; e-mail: [email protected]. Before actions: using any approved AMOC on any airplane to which the AMOC applies, notify your (i) Inspect the baggage door and the LIBRARY OF CONGRESS baggage door locking mechanism and do the appropriate principal inspector (PI) in the necessary corrective actions following Parts FAA Flight Standards District Office (FSDO), Copyright Office A and B of the Accomplishment Instructions or lacking a PI, your local FSDO. in Piaggio Aero Industries S.p.A. Mandatory (2) Airworthy Product: For any requirement 37 CFR Part 201 Service Bulletin No. 80–0289, Revision 1, in this AD to obtain corrective actions from dated January 11, 2011. a manufacturer or other source, use these [Docket No. RM 2011–7] (ii) If after the inspection required by actions if they are FAA-approved. Corrective paragraph (f)(2)(i) of this AD, the baggage actions are considered FAA-approved if they Exemption to Prohibition on door adjustment procedure was not required Circumvention of Copyright Protection or was required and was done successfully, are approved by the State of Design Authority inspect the screws on the locking device on (or their delegated agent). You are required Systems for Access Control the door handle with the proper tightness. to assure the product is airworthy before it Technologies Take any necessary corrective actions after is returned to service. AGENCY applying a thread locker following Part D of (3) Reporting Requirements: For any : Copyright Office, Library of the Accomplishment Instructions in Piaggio reporting requirement in this AD, a Federal Congress. Aero Industries S.p.A. Mandatory Service agency may not conduct or sponsor, and a ACTION: Notice of inquiry and request for Bulletin No. 80–0289, Revision 1, dated person is not required to respond to, nor comments. January 11, 2011. shall a person be subject to a penalty for (iii) If after the inspection required by failure to comply with a collection of SUMMARY: The United States Copyright paragraph (f)(2)(i) of this AD, the baggage information subject to the requirements of Office is preparing to conduct door adjustment was required and was not the Paperwork Reduction Act unless that proceedings in accordance with done successfully, within the next 165 hours provisions added by the Digital TIS after the effective date of this AD or collection of information displays a current within the next 60 days after the effective valid OMB Control Number. The OMB Millennium Copyright Act which date of this AD, whichever occurs first, do Control Number for this information provide that the Librarian of Congress, the following actions: collection is 2120–0056. Public reporting for upon the recommendation of the (A) Modify the locking mechanism this collection of information is estimated to Register of Copyrights, may exempt following the Accomplishment Instructions be approximately 5 minutes per response, certain classes of works from the in Piaggio Aero Industries S.p.A. Service including the time for reviewing instructions, prohibition against circumvention of Bulletin No. 80–0223, Revision 1, dated July completing and reviewing the collection of technological measures that control 31, 2009. information. All responses to this collection access to copyrighted works. The (B) Inspect the screws on the locking of information are mandatory. Comments purpose of this rulemaking proceeding device installed on the door handle for concerning the accuracy of this burden and proper tightness and correct as necessary is to determine whether there are suggestions for reducing the burden should after applying a thread locker following Part particular classes of works as to which be directed to the FAA at: 800 Independence D of the Accomplishment Instructions in users are, or are likely to be, adversely Piaggio Aero Industries S.p.A. Mandatory Ave. SW., Washington, DC 20591, Attn: affected in their ability to make Service Bulletin No. 80–0289, Revision 1, Information Collection Clearance Officer, noninfringing uses due to the dated January 11, 2011. AES–200. prohibition on circumvention. This (3) If the inspections specified in Piaggio Related Information notice requests written comments from Aero Industries S.p.A. Mandatory Service all interested parties, including Bulletin No. 80–0289, dated November 11, (h) Refer to MCAI European Aviation 2010, and the modification, if required, Safety Agency (EASA) AD No.: 2011–0132, representatives of copyright owners, specified in Piaggio Aero Industries S.p.A. dated July 12, 2011; Piaggio Aero Industries educational institutions, libraries and Service Bulletin No. 80–0223, Revision 1, S.p.A. Service Bulletin No. 80–0223, archives, scholars, researchers and dated July 31, 2009, were done before the Revision 1, dated July 31, 2009; Piaggio Aero members of the public, in order to elicit effective date of this AD, we will allow Industries S.p.A. Mandatory Service Bulletin evidence on whether noninfringing uses ‘‘unless already done’’ credit to comply with No. 80–0289, dated November 11, 2010; and of certain classes of works are, or are the actions required in this AD. After the Piaggio Aero Industries S.p.A. Mandatory likely to be, adversely affected by this effective date of this AD, you must use Service Bulletin No. 80–0289, Revision 1, prohibition on the circumvention of Piaggio Aero Industries S.p.A. Mandatory dated January 11, 2011, for related measures that control access to Service Bulletin No. 80–0289, Revision 1, information. For service information related dated January 11, 2011, to comply with this copyrighted works. to this AD, contact Piaggio Aero Industries AD. DATES: Written comments must be S.p.A–Airworthiness Office, Via Luigi received no later than December 1, FAA AD Differences Cibrario, 4–16154 Genova-Italy; phone: +39 2011. A notice of proposed rulemaking 010 6481353; fax: +39 010 6481881; e-mail: Note: This AD differs from the MCAI and/ will be published in December 2011 that [email protected]; Internet: http:// or service information as follows: No will identify proposed classes of works differences. www.piaggioaero.com/#/en/after-sales/ service-support. You may review copies of and solicit comments on those proposed Other FAA AD Provisions the referenced service information at the classes, which will be no later than February 15, 2012. (g) The following provisions also apply to FAA, Small Airplane Directorate, 901 Locust, this AD: Kansas City, Missouri 64106. For information ADDRESSES: The Copyright Office (1) Alternative Methods of Compliance on the availability of this material at the strongly prefers that comments be (AMOCs): The Manager, Standards Office, FAA, call (816) 329–4148. submitted electronically. A comment

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page containing a comment form will be copyrighted work which is in a effect until the conclusion of the next posted on the Copyright Office Web site particular class of works, if such rulemaking. Exemption to Prohibition at http://www.copyright.gov/1201/ persons are, or are likely to be in the on Circumvention of Copyright comment-forms. The online form succeeding 3-year period, adversely Protection Systems for Access Control contains fields for required information affected by virtue of such prohibition in Technologies, 75 FR 47464, published including the name and organization of their ability to make noninfringing uses in the Federal Register August 6, 2010 the commenter, as applicable, and the of that particular class of works under (hereinafter Final Reg. 2010). All four of ability to upload comments as an this title’’ as determined in this the previous determinations by the attachment. To meet accessibility rulemaking. Librarian of Congress were made upon standards, all comments must be Subparagraph (C) provides that every the recommendation of the Register of uploaded in a single file in either the three years, the Librarian of Congress, Copyrights following extensive Adobe Portable Document File (PDF) upon the recommendation of the rulemaking proceedings. Register of Copyrights (who is to consult format that contains searchable, 2. Background accessible text (not an image); Microsoft with the Assistant Secretary for Word; WordPerfect; Rich Text Format Communications and Information of the Title I of the Digital Millennium (RTF); or ASCII text file format (not a Department of Commerce) must ‘‘make Copyright Act was, inter alia, the scanned document). The maximum file the determination in a rulemaking congressional fulfillment of obligations size is 6 megabytes (MB). The name of proceeding for purposes of of the United States under the WIPO the submitter and organization should subparagraph (B) of whether persons Copyright Treaty and the WIPO appear on both the form and the face of who are users of a copyrighted work are, Performances and Phonograms Treaty. the comments. All comments will be or are likely to be in the succeeding 3- For additional information on the posted publicly on the Copyright Office year period, adversely affected by the historical background and the legislative Web site exactly as they are received, prohibition under subparagraph (A) in history of Title I, see Exemption to along with names and organizations. If their ability to make noninfringing uses Prohibition on Circumvention of electronic submission of comments is under this title of a particular class of Copyright Protection Systems for Access not feasible, please contact the copyrighted works.’’ The Librarian, on Control Technologies, 64 FR 66139, Copyright Office at 202–707–8380 for the recommendation of the Register, has 66140 (1999) [http://www.loc.gov/ copyright/fedreg/1999/64fr66139.html]. special instructions. See SUPPLEMENTARY thus far made four such determinations. Section 1201 of title 17 of the United INFORMATION section for information This notice announces the States Code prohibits two general types about requirements and formats of commencement of the fifth rulemaking of activity: (1) The conduct of submissions. proceeding under section 1201(a)(1)(C). The exemptions promulgated by the ‘‘circumvention’’ of technological FOR FURTHER INFORMATION CONTACT: Librarian in the first rulemaking were in protection measures that control access David O. Carson, General Counsel, effect for the 3-year period from October to copyrighted works and (2) trafficking Copyright GC/I&R, PO Box 70400, 28, 2000, through October 28, 2003. See in any technology, product, service, Washington, DC 20024–0400. Exemption to Prohibition on device, component, or part thereof that Telephone: (202) 707–8380; telefax: Circumvention of Copyright Protection protects either ‘‘access’’ to a copyrighted (202) 707–8366. Systems for Access Control work or that protects the ‘‘rights of the SUPPLEMENTARY INFORMATION: The Technologies, 65 FR 64556, 64564, copyright owner,’’ if that device or United States Copyright Office published in the Federal Register service meets one of three conditions. announces the initiation of a rulemaking October 27, 2000 (hereinafter Final Reg. The first type of activity, the conduct of to determine whether there are any 2000). On October 28, 2003, the circumvention, is prohibited in section classes of copyrighted works for which Librarian of Congress published the 1201(a)(1). The latter activities, noninfringing uses are, or in the next second determination as to classes of trafficking in devices or services that three years are likely to be, adversely works to be exempted from the circumvent ‘‘access’’ or ‘‘the rights of affected by the prohibition on prohibition. Exemption to Prohibition the copyright owner,’’ are contained in circumvention of technological on Circumvention of Copyright sections 1201(a)(2) and 1201(b) measures that control access to Protection Systems for Access Control respectively. In addition to these copyrighted works. See 17 U.S.C. Technologies, 68 FR 62011, 62013, prohibitions, section 1201 also includes 1201(a)(1)(C). published in the Federal Register a series of section-specific limitations October 31, 2003 (hereinafter Final Reg. and exemptions to the prohibitions of 1. Mandate for Rulemaking Proceeding 2003). The four exemptions created in section 1201. The Digital Millennium Copyright the second anticircumvention Act, Public Law 105–304 (1998), rulemaking remained in effect for a 3- A. The Anticircumvention Provision at amended title 17 of the United States year period. On November 27, 2006, the Issue Code to add Chapter 12, which among Librarian of Congress published the Subsection 1201(a)(1) applies when a other things prohibits circumvention of third determination. Exemption to person who is not authorized by the access control technologies employed Prohibition on Circumvention of copyright owner to gain access to a work by or on behalf of copyright owners to Copyright Protection Systems for Access does so by circumventing a protect their works. Specifically, Control Technologies, 71 FR 68472, technological measure put in place with subsection 1201(a)(1)(A) provides, inter 68480, published in the Federal the authority of the copyright owner to alia, that ‘‘No person shall circumvent Register November 27, 2006 (hereinafter control access to the work. See Report a technological measure that effectively Final Reg. 2006). The six exemptions of the House Committee on Commerce controls access to a work protected established in the third on the Digital Millennium Copyright Act under this title.’’ anticircumvention rulemaking remained of 1998, H.R. Rep. No. 105–551, pt. 2, Subparagraph (B) limits this in effect until August 6, 2010. On at 36 (1998) (hereinafter Commerce prohibition. It provides that prohibition August 6, 2010, the Librarian of Comm. Report). against circumvention ‘‘shall not apply Congress published the fourth That section provides that ‘‘No person to persons who are users of a determination, which will remain in shall circumvent a technological

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measure that effectively controls access limitation applied, e.g., fair use. The considerations, such as, the availability to a work protected under this title.’’ 17 trafficking in, inter alia, any device or of the affected works for use, the U.S.C. 1201(a)(1)(A) (1998). service that enabled others to availability of the works for nonprofit The relevant terms are defined: circumvent such a technological archival, preservation, and educational (3) As used in this subsection— protection measure may, however, be purposes, the impact that the (A) to ‘‘circumvent a technological actionable under section 1201(b). prohibition has on criticism, comment, measure’’ means to descramble a On the other hand, because there is a news reporting, teaching, scholarship, scrambled work, to decrypt an prohibition on the act of circumventing or research, the effect of circumvention encrypted work, or otherwise to avoid, a technological measure that controls on the market for or value of bypass, remove, deactivate, or impair a access to a work, and since traditional copyrighted works, and any other technological measure, without the Copyright Act limitations are not relevant factors. authority of the copyright owner; and defenses to the act of circumventing a In order to meet the burden of proof, (B) a technological measure technological measure that controls proponents of an exemption must ‘‘effectively controls access to a work’’ access, Congress chose to create the provide evidence either that actual harm if the measure, in the ordinary course of current rulemaking proceeding as a currently exists or that it is ‘‘likely’’ to its operation, requires the application of ‘‘fail-safe mechanism’’ to monitor the occur in the ensuing 3-year period. information, or a process or a treatment, effect of the anticircumvention Actual instances of verifiable problems with the authority of the copyright provision in section 1201(a)(1)(A). occurring in the marketplace are owner, to gain access to the work. 17 Commerce Comm. Report, at 36. This generally necessary in order to prove U.S.C. 1201(a)(3). anticircumvention rulemaking is actual harm. The most compelling cases B. Scope of the Rulemaking authorized to monitor the effect of the of actual harm will be based on first- prohibition against ‘‘access’’ hand knowledge of such problems. The statutory focus of this rulemaking circumvention on noninfringing uses of Circumstantial evidence may also is limited to one subsection of section copyrighted works. In this triennial support a claim of present or likely 1201: the prohibition on the conduct of rulemaking proceeding, effects on harm, but such evidence must also circumvention of technological noninfringing uses that are unrelated to reasonably demonstrate that a measure measures that control access to section 1201(a)(1)(A) may not be protecting access was the cause of the copyrighted works. 17 U.S.C. considered. 17 U.S.C. 1201(a)(1)(C). harm and that the adversely affected use 1201(a)(1)(C) [http://www.copyright.gov/ was, in fact, noninfringing. ‘‘Likely’’ C. Burden of Proof title17/92chap12.html#1201]. The adverse effects may also support an Librarian of Congress has no authority In the first rulemaking, the Register exemption. This standard of to limit either of the anti-trafficking concluded from the language of the ‘‘likelihood’’ requires proof that adverse provisions contained in subsections statute and the legislative history that a effects are more likely than not to occur. 1201(a)(2) or 1201(b). 17 U.S.C. determination to exempt a class of Claims based on ‘‘likely’’ adverse effects 1201(a)(1)(E). Moreover, for a proposed works from the prohibition on cannot be supported by speculation exemption to be considered in this circumvention must be based on a alone. See Staff of House Committee on rulemaking, there must be a causal showing that the prohibition has or is the Judiciary, 105th Cong., Section-by- connection between the prohibition in likely to have a substantial adverse Section Analysis of H.R. 2281 as Passed 1201(a)(1) and the adverse effect on effect on noninfringing uses of a by the United States House of noninfringing uses. particular class of works. (The meaning Representatives on August 4, 1998, This rulemaking addresses only the of the phrase ‘‘class of works’’ is (hereinafter House Manager’s Report), at prohibition on the conduct of described in section E of this Notice of 6, (an exemption based on ‘‘likely’’ circumventing measures that control Inquiry.) It was determined that future adverse impacts during the ‘‘access’’ to copyrighted works, e.g., proponents of an exemption bear the applicable period should only be made decryption or hacking of access controls burden of proof that an exemption is ‘‘in extraordinary circumstances in such as passwords or serial numbers. warranted for a particular class of works which the evidence of likelihood is The structure of section 1201 is such and that the prohibition is presumed to highly specific, strong and that there exists no comparable apply to all classes of works unless an persuasive.’’). Conjecture alone is prohibition on the conduct of adverse impact has been shown. See insufficient to support a finding of circumventing technological measures Commerce Comm. Report, at 37 and see ‘‘likely’’ adverse effect. Final Reg. 2000, that protect the ‘‘rights of the copyright also, Final Reg. 2000, 65 FR at 64558. 65 FR at 64559. Although a showing of owner,’’ e.g., the section 106 rights to The ‘‘substantial’’ adverse effect ‘‘likely’’ adverse impact will necessarily reproduce, adapt, distribute, publicly requirement has also been described as involve prediction, the burden of perform, or publicly display a work. a requirement that the proponent of an proving that the expected adverse effect Circumventing a technological measure exemption must demonstrate ‘‘distinct, is more likely than other possible that protects these section 106 rights of verifiable, and measurable impacts,’’ outcomes rests firmly on the proponent the copyright owner is governed not by and more than ‘‘de minimis impacts.’’ of the exemption. section 1201, but rather by the See Final Reg. 2003, 68 FR at 62013. The identification of existing or likely traditional copyright rights and the Whatever label one uses, proponents of problems is not, however, the end of the applicable limitations in the Copyright an exemption bear the burden of analysis. In order for an exemption of a Act. For example, if a person having providing sufficient evidence under this particular class of works to be lawful access to a work circumvents a standard to support an exemption. How warranted, a proponent must show that measure that prohibits printing or much evidence is sufficient will vary such problems justify an exemption in saving an electronic copy of an article, with the factual context of the alleged light of all of the relevant facts. The there is no provision in section 1201 harm. Further, proof of harm is never identification of isolated or anecdotal that precludes this activity. Instead, it the only consideration in the problems will be generally insufficient would be actionable as copyright rulemaking process, and therefore the to warrant an exemption. Similarly, the infringement of the section 106 right of sufficiency of the evidence of harm will mere fact that the digital format would reproduction unless an applicable always be relative to other be more convenient to use for

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noninfringing purposes is generally opponents should have sufficient notice questions and the responses to the insufficient factual support for an of the exemptions to be addressed in the questions will be posted on the exemption. Further, purely theoretical rulemaking. Copyright owners and other Copyright Office’s website after the critiques of section 1201 cannot satisfy interested parties, however, should be responses have been received. the requisite showing. House Manager’s vigilant in monitoring classes proposed D. Availability of Works in Unprotected Report, at 6. Proponents of exemptions in the initial comment period that may must show sufficient harm to warrant an implicate their interests as such classes Formats exemption from the default rule may be further refined in the ensuing Other statutory considerations must established by Congress—the rulemaking process. also be balanced with evidence of prohibition against circumvention. The Office will post all of the adverse effects attributable to the There is a presumption that the comments, hearing transcripts, and prohibition. In making her section 1201 prohibition will apply to other relevant material in this recommendation to the Librarian, the any and all classes of works, including rulemaking proceeding, as the Office Register is instructed to consider the previously exempted classes, unless a has done since the inception of this availability for use of copyrighted new showing is made that an exemption rulemaking proceeding, on the works. 17 U.S.C. 1201(a)(1)(C)(i). This is warranted. Final Reg. 2000, 65 FR at Copyright Office’s Web site at: http:// inquiry demands that the Register 64558. Exemptions are reviewed de www.copyright.gov/1201.2 consider whether ‘‘works’’ protected by novo and prior exemptions will expire The Copyright Office will also technological measures that control unless sufficient new evidence is conduct a series of hearings on the access are also available in the presented in each rulemaking that the proposed exemptions in the Spring, in marketplace in formats that are prohibition has or is likely to have an Washington DC and possibly in unprotected. The fact that a ‘‘work’’ (in adverse effect on noninfringing uses. California. These hearings will offer contrast to a particular ‘‘copy’’ of a The facts and argument that supported proponents and opponents of work) is available in a format without an exemption during any given 3-year exemptions an opportunity to present technological protection measures may period may be insufficient within the arguments and answer questions from be significant because the unprotected context of the marketplace in a different the Register and her staff. These formats might allow the public to make 3-year period. Similarly, proposals that hearings—the time, date and subject noninfringing uses of the work even were not found to justify an exemption matter of which will be announced early though other formats of the work would in any particular rulemaking could find in 2012—will not provide a forum in not. For example, in the first factual support in the context and on which to raise new proposals or to rulemaking, many users claimed that the record of another rulemaking. submit wholly new evidence. Evidence the technological measures on motion Evidence in support or in opposition that demonstrates how a technological pictures contained on Digital Versatile to an exemption should be contained in measure operates and affects Disks (DVDs) restricted noninfringing the initial comments or, after noninfringing uses as well as evidence uses of the motion pictures. A balancing publication of the proposed classes in that is responsive to earlier disputes consideration was that the record the Federal Register, in the comments raised in the comment process is revealed at that time that the vast on the proposed exemptions. The welcomed, and is encouraged, at these majority of these works were also purpose of this rulemaking is to survey hearings. However, the hearings may interested parties in the digital available in analog format on VHS tapes. not be used as a vehicle for surprise or Final Reg. 2000, 65 FR at 64568. Thus, environment to discover whether to present untimely proposals. section 1201(a)(1) is adversely affecting the full range of availability of a work The Register is also likely to pose for use is necessary to consider in noninfringing uses of particular classes post-hearing questions to specific of copyrighted works. The proposals assessing the need for an exemption to parties or witnesses that participated in the prohibition on circumvention. received in the initial comments will the rulemaking proceeding. These Another consideration relating to the frame the inquiry throughout the rest of questions have historically sought availability for use of copyrighted works the rulemaking process. The comments clarification of legal and factual is whether the measure supports a submitted in response to this Notice of questions, including specific requests to distribution model that benefits the Inquiry will be posted on the Copyright explain the operation of a technological public generally. For example, while a Office Web site shortly after submission, measure at issue. Such post-hearing measure may limit the length of time and a Notice of Proposed Rulemaking questions should not be construed as a that a work may be accessed (time- identifying the classes of works general public post-hearing comment limited) or may limit the scope of access proposed will be published in the phase—there simply will not be 1 (scope-limited), e.g., access to only a Federal Register shortly thereafter. The sufficient time to consider another portion of work, those limitations may Notice of Proposed Rulemaking will round of general public comments benefit the public by providing ‘‘use- invite copyright owners and other before the announcement of the newly facilitating’’ models that allow users to interested parties to offer their exempted classes—but rather are obtain access to works at a lower cost comments in support of or opposition to invitations addressed to specific than they would otherwise be charged the proposed classes. Comments witnesses who have offered testimony were such restrictions not in place. If responsive to the proposed classes may on an issue to provide further there is sufficient evidence that also propose modest refinements to the clarification in response to specific particular classes of works would not be proposed classes and supply additional questions from the Register. The evidence, but may not propose offered at all without the protection afforded by technological protection completely new classes of works. Since 2 If a comment includes attached material that opponents to exemptions have only one appears to be protected by copyright and there is measures that control access, this comment period to provide written no indication that the material was attached with evidence must be considered. House responses to the exemptions proposed, permission of the copyright owner, the attached Manager’s Report, at 6. Accord, Final material will not be placed on the Office’s Website. Reg. 2000, 65 FR at 64559. Thus, the If such a material is available on the Internet, the 1 See infra for a discussion of proposals raised comment should identify where the material may Register’s inquiry must assess any after the initial comment period has expired. be found. benefits to the public resulting from the

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prohibition as well as the adverse effects pictorial, graphic and sculptural works; demonstrated that the reproduction and that may be established. motion pictures and other audiovisual public performance of short portions of works; sound recordings; and motion pictures or other audiovisual E. The Scope of the Term ‘‘Class of architectural works. works in the course of face-to-face Works’’ This determination is supported by teaching activities of a film or media Section 1201 does not define a critical the House Manager’s Report which studies course would generally term for the rulemaking process: a discussed the importance of constitute a noninfringing use. The ‘‘class of works.’’ With respect to this appropriately defining the proper scope proponents further demonstrated that issue and others, commenters should of the exemption. House Manager’s the digital version of the motion familiarize themselves with the Report, at 7. The legislative history pictures distributed on DVDs was not Register’s recommendation and the stated that it would be highly unlikely merely a preferred format, but that the Librarian’s determination in the first for all literary works to be adversely digital version of these works was the rulemaking and in the subsequent three affected by the prohibition and only version of the work that met the rulemakings, since many of the issues therefore, determining an appropriate pedagogical needs of the film and media which were unsettled at the start of the subcategory of the works in this studies professors. The proponents of first rulemaking have been addressed category would be the goal of the the exemption also demonstrated that and developed in the four rulemaking. Id. their otherwise noninfringing uses of determinations. While the approach Therefore, the Register concluded that the digital versions of these motion taken in resolving the issues raised in the starting point for identifying a pictures were adversely affected by the these rulemakings may continue to particular ‘‘class of works’’ to be prohibition on circumvention of develop in this and subsequent exempted must be one of the section technological measures protecting proceedings, interested parties should 102 categories. Final Reg., 65 FR at access to these works, because the assume that the standards developed 64559–64561. From that starting point, Content Scrambling System (CSS) thus far will continue to apply in the it is likely that the scope or boundaries contained on most commercially current proceeding. Of course, of a particular class would need to be released DVDs was an access control commenters may argue for adoption of further limited to remedy the particular 3 system that prevented the making of a alternative approaches, but a harm to noninfringing uses identified in compilation of film clips for classroom persuasive case will have to be made to the rulemaking. use. Although opponents of the warrant reconsideration of previous In the first anticircumvention exemption demonstrated a DVD player decisions regarding interpretation of rulemaking, the Register recommended that was alleged to meet the pedagogical section 1201. and the Librarian agreed that two needs of educators, the device presented In the first rulemaking, the Register classes of works should be exempted: obstacles for classroom use that were elicited views on the scope and meaning (1) Compilations consisting of lists of found to be more than a mere of the term ‘‘class of works.’’ After websites blocked by filtering software inconvenience for a subset of users— review of the statutory language, the applications; and legislative history and the extensive (2) Literary works, including film and media studies professors. record in the proceeding [see Final Reg., computer programs and databases, The proponents met their burden of 65 FR at 64557 for a description of the protected by access control mechanisms proving that section 1201(a)(1) was record in the last rulemaking that fail to permit access because of adversely affecting film and media proceeding], the Register reached malfunction, damage or obsoleteness. studies educators’ ability to engage in certain conclusions on the scope of this While the first class exempted fits noninfringing uses for the ensuing 3- term. [For a more detailed discussion, comfortably within the approach to year period and that no reasonable see Final Reg., 65 FR at 64559.] classification discussed above, the substitute for the pedagogically The Register found that the statutory second class includes the entire beneficial digital content was available language required that the Librarian category of literary works, but narrows or likely to become available in the next identify a ‘‘class of works’’ primarily the exemption by reference to attributes three years. The opponents of the based upon attributes of the works of the technological measures that proposal expressed concern that if the themselves, and not by reference to controls access to the works. proposed class of works—audiovisual some external criteria such as the In the 2006 rulemaking, the Register works included in the educational intended use or the users of the works. determined that a further refinement of library of a college or university’s film The phrase ‘‘class of works’’ connotes the approach to determining a particular or media studies department and that that the shared, common attributes of class of works was warranted. Even are protected by technological measures the ‘‘class’’ relate to the nature of though a class must begin, as its starting that prevent their educational use—was authorship in the ‘‘works.’’ Thus a point, by reference to one of the based only on attributes of the work ‘‘class of works’’ was intended to be a categories of authorship enumerated in itself, the exemption would necessarily ‘‘narrow and focused subset of the broad section 102 of the Copyright Act (or exempt a much broader range of uses categories of works of authorship * * * some subset thereof), that class should than those in which the film professors identified in section 102.’’ Commerce be further tailored to address the harm wished to engage. Moreover, copyright Comm. Report, at 38. The starting point (actual or likely) alleged. The proper owners were concerned that such an for a proposed exemption of a particular tailoring of a class will depend on the exemption would create public class of works must be the section 102 specific facts, but in some cases, the confusion about the circumstances in categories of authorship: literary works; most appropriate manner of further which circumvention was appropriate. musical works; dramatic works; tailoring the category or sub-category Given the expanse of such a class of pantomimes and choreographic works; may be to limit the class in relation to works and the adverse effects that could particular uses or users. occur as a result of confusion about the 3 Proponents of an exemption may do so in their The impetus for this refinement was class, copyright owners argued that comments proposing exemptions. Opponents of an overall harm of such an exemption exemption should do so in their comments filed in a proposed exemption for film and response to the forthcoming Notice of Proposed media studies professors. The would outweigh the marginal benefits to Rulemaking. proponents of the exemption this subset of educators.

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The Register concluded that a further prohibition on circumvention is and fourth rulemakings: Comments refinement of the scope of a class of preventing. In addition to describing the submitted in the initial comment period works was the proper balance to the activity, the proponent should provide a should be confined to proposals for valid concerns of both educators and factual basis for a determination that the exempted classes. They should copyright owners. By delineating the technological measure has had or is specifically identify particular classes of class in relation to the relevant likely to have a substantial adverse works adversely affected by the noninfringing use proven to be, or likely effect on noninfringing uses; prohibition and provide evidentiary to be, adversely affected by the demonstrating only isolated instances of support for the need for the proposed prohibition on circumvention, film and relatively minimal adverse effects is not exemptions (see section F above). media studies educators’ needs could be likely to meet the proponent’s burden. Proponents should present their met while leaving the statutory Third, a proponent should establish that entire case in their initial comments. A prohibition against circumvention intact the prevented activity is, in fact, a proponent of a particular class of works for that class with respect to other uses. noninfringing use under current law. A will not be permitted to submit an In the fourth rulemaking concluded in proponent should also demonstrate why additional comment in support of that 2010, similar refinements were made to the access-protected copy of a work is class in response to the December notice certain classes of works. See 37 CFR needed for the noninfringing use and of proposed rulemaking unless, at least 201.40(b)(1), (2), (3), and (4). why alternate means of engaging in the 15 days before the deadline for In all proposed exemptions, the noninfringing uses (including use of comments in response to the notice of starting point for a class of works must available copies of the work in proposed rulemaking, the proponent has be a section 102 category of authorship, unprotected formats), if they exist, are submitted a written request for or a subset thereof. That category or an insufficient substitute for permission to submit an additional subset should then be tailored by other accomplishing the noninfringing use. comment demonstrating good cause to criteria as appropriate under the The nature of the Librarian’s inquiry permit the submission of the comment, particular facts presented. The goal is to is further delineated by the statutory and the Copyright Office has approved fashion an exemption that is neither too areas to be examined by the Register of the submission of the comment. The narrow nor too broad to remedially Copyrights: purpose of this requirement is to address the evidence of present and (i) The availability for use of provide for the orderly presentation of likely harm. An appropriately fashioned copyrighted works; evidence and arguments, and to permit exemption will assist users and (ii) the availability for use of works for both proponents and opponents to copyright owners alike, by temporarily nonprofit archival, preservation, and present their best cases. suspending the prohibition on educational purposes; For each particular class of works that circumvention for appropriately tailored (iii) the impact that the prohibition on a commenter proposes for exemption, adversely affected classes, while the circumvention of technological the commenter should first identify that preserving the prohibition in all other measures applied to copyrighted works class, followed by a summary of the classes. has on criticism, comment, news argument in favor of exempting that The exemptions published for each reporting, teaching, scholarship, or proposed class. The commenter should three-year period are temporary and research; then specify the facts and evidence expire when the succeeding (iv) the effect of circumvention of providing a basis for this exemption. determination of the Librarian of technological measures on the market This factual information should ideally Congress is published. This rulemaking for or value of copyrighted works; and include the technological measure that will examine adverse effects existing in (v) such other factors as the Librarian controls access and the manner in the marketplace or likely to exist in the considers appropriate. 17 U.S.C. which this technological measure next three-year period to determine 1201(a)(1)(C). operates to control access to a whether any exemptions to the These statutory considerations require copyrighted work. Finally, the prohibition on circumvention of examination and careful balancing. The commenter should state any legal technological protection measures that harm identified by a proponent of an arguments in support of the exemption, effectively control access to copyrighted exemption must be balanced with the including the activity that is claimed to works are warranted by the evidence harm that would result from an be noninfringing, the legal basis for this raised during this rulemaking. exemption. In some circumstances, the claim, and why this noninfringing adverse effect of a proposed exemption activity cannot be accomplished in F. Considerations To Address Within a in light of these considerations may be other ways. The legal argument should Comment greater than the harm posed by the include an analysis of the factors set This notice requests written prohibition on circumvention of works forth in 17 U.S.C. 1201(a)(1)(C), comments from all interested parties in the proposed class. Perhaps the discussed above. This format of class/ wishing to propose a class of works for proper balance can be resolved by summary/facts/argument should be exemption from the prohibition on carefully tailoring the scope of the class, sequentially followed for each class of circumvention. In addition to the but ultimately, the determination of the work proposed as necessary. necessary showing discussed above, in Librarian must take all of these factors As discussed above, the best evidence order to make a prima facie case for a into account. in support of an exemption would proposed exemption, certain critical consist of concrete examples or specific points should be established. First, a 3. Written Comments instances in which the prohibition on proponent should identify the In the first rulemaking, the Register circumvention of technological technological measure that is the determined that the burden of proof is measures protecting access has had or is ultimate source of the alleged problem, on the proponent of an exemption to likely to have an adverse effect on and the proponent should explain how come forward with evidence supporting noninfringing uses. It would also be the technological measure effectively an exemption for a particular class of useful for the commenter to quantify the controls access to a copyrighted work. works. In this fifth triennial rulemaking, adverse effects in order to explain the Second, a proponent must specifically the Register shall continue with the scope of the present or likely problem. explain what noninfringing activity the procedure adopted in the second, third As noted above, demonstrating only

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isolated instances of relatively minimal whether the commenter is likely to Office in identifying the number of days adverse effects is not likely to meet the prefer to testify in Washington, DC, or for hearings, the comment form page proponent’s burden. at a location in California. Commenters will contain non-required fields asking Comments subsequently submitted in will also be required to fill in two whether the commenter is likely to response to exemptions proposed in the additional fields: (1) The proposed class request to testify and if so, in which first round of comments should provide or classes of copyrighted work(s) to be location. Formal requests to testify will factual information and legal argument exempted, and (2) a brief summary of be solicited early in 2012. addressing whether or not a proposed the argument(s). As noted above, following the exemption should be adopted. Since the All comments submitted hearings, the Copyright Office may comments in this second round are electronically must be sent as an request additional information from intended to be responsive to the initial attachment, and must be in a single file parties who have been involved in the comments, commenters must identify in either Adobe Portable Document File rulemaking process. Such requests for which proposal(s) they are responding (PDF) format (preferred), Microsoft, responses to questions will take the to, whether in opposition, support, WordPerfect, Rich Text Format (RTF), or form of a letter from the Copyright amplification or correction. As with ASCII text file format. There will be a Office and will be addressed to initial comments, these responsive browse button on the form that will particular parties involved in an issue in comments should first identify the allow submitters to attach the comment which more information is sought. proposed class or classes to which the file to the form and then to submit the These inquiries will include deadlines comment is responsive, provide a completed form to the Office. based on when the requests for summary of the argument, and then The personal information entered into information are sent. After the receipt of provide the factual and/or legal support the required fields on the form page will all responses to all inquiries from the for their argument. This format of class/ not be publicly posted on the Copyright Copyright Office, the Office will post summary/facts and/or legal argument Office website, but the Office intends to the questions, the parties to whom the should be repeated for each comment post on its website the name of the questions were sent, and the responses responsive to a particular proposed proponent, the proposed class and on the Copyright Office’s website. class of work. possibly the summary of the argument, All comments must, at a minimum, as well as the entire, attached comment 6. Process for Untimely Submissions contain the legal name of the submitter document. Only the commenter’s name Based on Exceptional or Unforeseen and the entity, if any, on whose behalf is required on the comment document Circumstances the comment was submitted. If persons itself and a commenter who does not To provide sufficient flexibility in this do not wish to have their address, want other personal information posted proceeding in the event that unforeseen telephone number, or email address on the Office’s Web site should avoid developments occur after the deadlines publicly displayed on the Office’s including other personal information on for the filing of initial comments, a website, comments should not include the comment itself. Except in person wishing to propose an such information on the document itself exceptional circumstances, changes to exemption for a particular class of but should only include the legal name the submitted comment will not be works after the specified deadline for of the commenter. The Office strongly allowed and it will become a part of the initial comments may petition the prefers that all comments be submitted permanent public record of this Register to consider an additional in electronic form and the electronic rulemaking. exemption. A petition, including form will provide a place to provide the Comments will be accepted for a proposed new classes of works to be required information separately from period of 30 days, and a form will be exempted, must be in writing and must the attached comment submission. placed on the Copyright Office Web site set forth the reasons why the However, anyone who cannot submit 30 days prior to the deadline for information could not have been made comments electronically may contact submission. Initial comments will be available earlier and why it should be the Copyright Office at 202–707–8380 accepted from November 2, 2011, until considered by the Register after the for special instructions. Electronic December 1, 2011, at 5 p.m. Eastern deadline. A petition must also be comments successfully submitted Standard Time, at which time the accompanied by a comment that meets through the Office’s website will submission form will be removed from the requirements for initial comments generate a confirmation receipt to the the website. The deadline for the second set forth in section 3 above. Any person submitter. round of comments will be announced wishing to submit a petition should in the Notice of Proposed Rulemaking to contact the Copyright Office at 202– 4. Submission of Comments be published in December, and will 707–8380 for further information on The Copyright Office’s Web site will probably be early in February 2012. how to submit the petition. Such contain a submission page at: http:// petitions will be granted only when the www.copyright.gov/1201/comment- 5. Hearings Office has been satisfied that late forms. Approximately thirty days prior As mentioned above, after the submission is justified due to to the deadline for submission of conclusion of the comment periods, the exceptional or unforeseen comments, the form page will be Register intends to hold public hearings circumstances. Exceptional or activated on the Copyright Office Web in the Spring. The dates and locations unforeseen circumstances generally site allowing information to be entered of the hearings in, have not yet been require that the proposal be based upon into the required fields, including the determined, although at a minimum information that did not exist at the name of the person making the hearings will be conducted in time of the comment periods. A person submission, mailing address, telephone Washington DC and, possibly, in wishing to file any other untimely number, and email address. There will California. A separate notice providing submission (e.g., a comment in response also be non-required fields for, e.g., the details about all hearings in this to a proposed class of works) may also commenter’s title, the organization that rulemaking proceeding will be petition the Register to consider such the commenter is representing, whether published at a later time in the Federal submission, but such untimely the commenter is likely to request to Register and on the Copyright Office’s submissions will be disfavored. The testify at public hearings and if so, website. In order to assist the Copyright Register will make a determination

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whether to accept a petition based on OAR–2011–0561, by one of the Gas Production Wells.’’ In the Rules and the stage of the rulemaking process at following methods: Regulations section of this Federal which the request is made and the 1. Federal eRulemaking Portal: Register, we are approving these local merits of the petition. A substantively www.regulations.gov. Follow the on-line rules in a direct final action without meritorious petition may be denied if instructions. prior proposal because we believe these the petition comes so late in the process 2. E-mail: [email protected]. SIP revisions are not controversial. If we that adequate notice and comment 3. Mail or deliver: Andrew Steckel receive adverse comments, however, we cannot be accommodated within the (Air-4), U.S. Environmental Protection will publish a timely withdrawal of the statutory time frame of the rulemaking Agency Region IX, 75 Hawthorne Street, direct final rule and address the process. The mere fact that an interested San Francisco, CA 94105–3901. comments in subsequent action based party was unaware of this proceeding or Instructions: All comments will be on this proposed rule. Please note that of any particular exemptions proposed included in the public docket without if we receive adverse comment on an in this proceeding is not a valid change and may be made available amendment, paragraph, or section of justification for a late submission. If a online at http://www.regulations.gov, this rule and if that provision may be petition is accepted, the Register will including any personal information severed from the remainder of the rule, publish the proposal in the Federal provided, unless the comment includes we may adopt as final those provisions Register and announce deadlines for Confidential Business Information (CBI) of the rule that are not the subject of an comments. If a petition is denied, the or other information whose disclosure is adverse comment. Register will set forth the reasons for the restricted by statute. Information that We do not plan to open a second denial in a letter to the petitioner. All you consider CBI or otherwise protected comment period, so anyone interested petitions and responses will become should be clearly identified as such and in commenting should do so at this part of the public record in this should not be submitted through http:// time. If we do not receive adverse rulemaking process. www.regulations.gov or e-mail. http:// comments, no further activity is Dated: September 23, 2011. www.regulations.gov is an ‘‘anonymous planned. For further information, please Maria A. Pallante, access’’ system, and EPA will not know see the direct final action. Register of Copyrights. your identity or contact information Dated: September 7, 2011. unless you provide it in the body of [FR Doc. 2011–25106 Filed 9–28–11; 8:45 am] Jared Blumenfeld, your comment. If you send e-mail Regional Administrator, Region IX. BILLING CODE 1410–30–P directly to EPA, your e-mail address [FR Doc. 2011–24689 Filed 9–28–11; 8:45 am] will be automatically captured and included as part of the public comment. BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION If EPA cannot read your comment due AGENCY to technical difficulties and cannot DEPARTMENT OF HOMELAND 40 CFR Part 52 contact you for clarification, EPA may not be able to consider your comment. SECURITY [EPA–R09–OAR–2011–0561; FRL–9469–2] Electronic files should avoid the use of Coast Guard special characters, any form of Revisions to the California State encryption, and be free of any defects or 46 CFR Part 160 Implementation Plan, Santa Barbara viruses. Air Pollution Control District, Docket: Generally, documents in the [Docket No. USCG–2011–0076] Sacramento Municipal Air Quality docket for this action are available RIN 1625–AB60 Management District and South Coast electronically at http:// Air Quality Management District www.regulations.gov and in hard copy Inflatable Personal Flotation Devices AGENCY: Environmental Protection at EPA Region IX, 75 Hawthorne Street, AGENCY: Coast Guard, DHS. Agency (EPA). San Francisco, California. While all ACTION: Notice of proposed rulemaking. ACTION: Proposed rule. documents in the docket are listed at http://www.regulations.gov, some SUMMARY: On March 30, 2011, the Coast SUMMARY: EPA is proposing to approve information may be publicly available Guard published a direct final rule that revisions to the Santa Barbara Air only at the hard copy location (e.g., notified the public of the Coast Guard’s Pollution Control District (SBAPCD), copyrighted material, large maps), and intent to harmonize structural and Sacramento Municipal Air Quality some may not be publicly available in performance standards for inflatable Management District (SMAQMD) and either location (e.g., CBI). To inspect the recreational personal flotation devices South Coast Air Quality Management hard copy materials, please schedule an (PFDs) with current voluntary industry District (SCAQMD) portions of the appointment during normal business consensus standards, and to slightly California State Implementation Plan hours with the contact listed in the FOR modify regulatory text in anticipation of (SIP). These revisions concern volatile FURTHER INFORMATION CONTACT section. a future rulemaking addressing the organic compound (VOC) emissions FOR FURTHER INFORMATION CONTACT: population for which inflatable from solvent cleaning machines and Adrianne Borgia, EPA Region IX, (415) recreational PFDs are approved (76 FR solvent cleaning operations and oil and 972–3576, [email protected]. 17561). As discussed below, we have gas production wells. We are proposing SUPPLEMENTARY INFORMATION: This received an adverse comment on the to approve local rules to regulate these proposal addresses the following local direct final rule, and have withdrawn emission sources under the Clean Air rules: SBAPCD Rule 321, ‘‘Solvent the direct final rule in a notice of Act as amended in 1990 (CAA or the Cleaning Machines and Solvent withdrawal published separately in this Act). Cleaning’’, SMAQMD Rule 466, issue of the Federal Register. The Coast DATES: Any comments on this proposal ‘‘Solvent Cleaning’’, SCAMQD Rule Guard seeks comment on the issues must arrive by October 31, 2011. 1171, ‘‘Solvent Cleaning Operations’’ raised by the commenters and proposes ADDRESSES: Submit comments, and SCAMQD Rule 1148.1, ‘‘Oil and to make the same changes to the current identified by docket number EPA–R09– regulatory text, as modified below.

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DATES: Comments and related material C. Regulatory Text Revisions become highlighted in blue. In the must either be submitted to our online VI. Incorporation by Reference ‘‘Keyword’’ box insert ‘‘USCG–2011– docket via http://www.regulations.gov VII. Regulatory Analyses 0076’’ and click ‘‘Search.’’ Click the on or before November 28, 2011 or reach A. Regulatory Planning and Review ‘‘Open Docket Folder’’ in the ‘‘Actions’’ B. Small Entities column. If you do not have access to the the Docket Management Facility by that C. Assistance for Small Entities date. D. Collection of Information Internet, you may view the docket ADDRESSES: You may submit comments E. Federalism online by visiting the Docket identified by docket number USCG– F. Unfunded Mandates Reform Act Management Facility in Room W12–140 2011–0076 using any one of the G. Taking of Private Property on the ground floor of the Department following methods: H. Civil Justice Reform of Transportation West Building, 1200 (1) Federal eRulemaking Portal: I. Protection of Children New Jersey Avenue, SE., Washington, http://www.regulations.gov. J. Indian Tribal Governments DC 20590, between 9 a.m. and 5 p.m., K. Energy Effects Monday through Friday, except Federal (2) Fax: 202–493–2251. L. Technical Standards (3) Mail: Docket Management Facility holidays. We have an agreement with M. Coast Guard Authorization Act Section the Department of Transportation to use (M–30), U.S. Department of 608 (46 U.S.C. 2118(a)) Transportation, West Building Ground N. Environment the Docket Management Facility. Floor, Room W12–140, 1200 New Jersey C. Privacy Act Avenue, SE., Washington, DC 20590– I. Public Participation and Request for Anyone can search the electronic 0001. Comments (4) Hand delivery: Same as mail form of comments received into any of We encourage you to participate in our dockets by the name of the address above, between 9 a.m. and this rulemaking by submitting individual submitting the comment (or 5 p.m., Monday through Friday, except comments and related materials. All signing the comment, if submitted on Federal holidays. The telephone number comments received will be posted behalf of an association, business, labor is 202–366–9329. without change to http:// union, etc.). You may review a Privacy To avoid duplication, please use only www.regulations.gov and will include Act notice regarding our public dockets one of these four methods. See the any personal information you have in the January 17, 2008 issue of the ‘‘Public Participation and Request for provided. Federal Register (73 FR 3316). Comments’’ portion of the SUPPLEMENTARY INFORMATION section A. Submitting Comments D. Public Meeting below for instructions on submitting If you submit a comment, please We do not now plan to hold a public comments. include the docket number for this meeting. But you may submit a request Viewing incorporation by reference rulemaking (USCG–2011–0076), for one to the docket using one of the material: You may inspect the material indicate the specific section of this methods specified under ADDRESSES. In proposed for incorporation by reference document to which each comment your request, explain why you believe a at U.S. Coast Guard Headquarters, 2100 applies, and provide a reason for each public meeting would be beneficial. If Second Street SW., Washington, DC suggestion or recommendation. You we determine that one would aid this 20593–0001 between 9 a.m. and 3 p.m. may submit your comments and rulemaking, we will hold one at a time Monday through Friday, except Federal material online or by fax, mail, or hand and place announced by a later notice holidays. The telephone number is 202– delivery, but please use only one of in the Federal Register. 372–1394. Copies of the material are these means. We recommend that you II. Abbreviations available as indicated in the include your name and a mailing ‘‘Incorporation by Reference’’ section of address, an e-mail address, or a phone ANSI American National Standards this preamble. number in the body of your document Institute FOR FURTHER INFORMATION CONTACT: If so that we can contact you if we have CFR Code of Federal Regulations you have questions on this proposed questions regarding your submission. DHS Department of Homeland Security rule, call or e-mail Ms. Brandi Baldwin, To submit your comment online, go to NEPA National Environmental Policy Act Lifesaving and Fire Safety Division (CG– http://www.regulations.gov and insert of 1969 5214), U.S. Coast Guard, telephone 202– NPRM Notice of proposed rulemaking ‘‘USCG–2011–0076’’ in the ‘‘Keyword’’ NTTAA National Technology Transfer and 372–1394, e-mail box. If you submit your comments by Advancement Act [email protected]. If you have mail or hand delivery, submit them in OMB Office of Management and Budget questions on viewing or submitting an unbound format, no larger than 81⁄2 PFDs Personal Flotation Devices material to the docket, call Renee V. by 11 inches, suitable for copying and STP Standards Technical Panel Wright, Program Manager, Docket electronic filing. If you submit UL Underwriters Laboratories Operations, telephone 202–366–9826. comments by mail and would like to USCG United States Coast Guard SUPPLEMENTARY INFORMATION: know that they reached the Facility, III. Regulatory History please enclose a stamped, self-addressed Table of Contents for Preamble postcard or envelope. On March 30, 2011, we published a I. Public Participation and Request for We will consider all comments and direct final rule entitled ‘‘Inflatable Comments material received during the comment Personal Flotation Devices’’ in the A. Submitting Comments period and may change this proposed Federal Register (76 FR 17561). The B. Viewing Comments and Documents rule based on your comments. Coast Guard received three submissions C. Privacy Act in response to the direct final rule: One D. Public Meeting B. Viewing Comments and Documents supportive of the rulemaking generally, II. Abbreviations III. Regulatory History To view comments, as well as one which raised questions about a IV. Background documents mentioned in this preamble revision to one of the standards V. Discussion of the Proposed Rule as being available in the docket, go to incorporated by reference, and one A. Incorporations by Reference http://www.regulations.gov, click on the adverse comment related to the deletion B. Conforming Changes ‘‘read comments’’ box, which will then of the words ‘‘approved for use by

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adults only’’ from the regulations. and weight limitations. When the Coast standards development process. The Because we received an adverse Guard promulgated subpart 160.076, Coast Guard actively participates in the comment, the Coast Guard is inflatable PFD-technology was relatively STP and continues to work withdrawing the direct final rule in a new and the appropriateness of these cooperatively with the PFD industry to notice of withdrawal published devices for children had not yet been develop appropriate design, testing, and separately in this issue of the Federal explored. At that time, the Coast Guard marking requirements for inflatable Register, and issuing this notice of stated, ‘‘The Coast Guard agrees with PFDs for use by children. This rule proposed rulemaking (NPRM) instead. those comments that suggested that would facilitate and encourage the This NPRM proposes the same approval of inflatable PFDs for children continuation of this process, but is not content as the direct final rule with one is not appropriate at this time. * * * intended to resolve any technical issues. change to update a version of an The issue of inflatable PFDs for children industry standard proposed for can be revisited after more experience is V. Discussion of the Proposed Rule incorporation by reference. The gained with the approval of inflatable The Coast Guard proposes to revise 46 comments received in response to the PFDs for adults.’’ 60 FR 32839, 32841. CFR part 160, subpart 160.076 to update direct final rule are discussed below As such, subpart 160.076 currently the editions of the UL Standards under ‘‘Discussion of the Proposed limits Coast Guard-approved inflatable incorporated by reference and to make Rule.’’ PFDs to ‘‘use by adults only.’’ 46 CFR necessary conforming changes resulting IV. Background 160.076–1(b)(2). from incorporating the updated Although the Coast Guard is not yet standards. The conforming changes The Coast Guard is charged with ready to revisit the issue of inflatable would include removing test methods, establishing minimum safety standards, PFDs for children, the industry has acceptance criteria, and other standards and procedures and tests required to begun considering the experience it has currently contained in subpart 160.076 measure conformance with those gained from adults’ usage of inflatable that are made redundant by the newer standards, for recreational vessels and PFDs during the past 15 years, as well editions of the UL Standards. The Coast associated equipment. See 46 U.S.C. as advances in inflatable PFD Guard also proposes to make minor 4302, and Homeland Security technology, to explore the regulatory text revisions to subpart Delegation #0170.1, section II, appropriateness of these devices for 160.076 that have a non-substantive paragraph (92)(b). Under this authority, children and create an appropriate effect. in 1995 the Coast Guard promulgated standard. In response to the direct final rule, regulations establishing structural and In 2009, a member of the PFD which included the same content as performance standards for inflatable industry submitted a proposal to the UL proposed below, one commenter recreational PFDs and procedures and Standards Technical Panel (STP) expressed support, citing the removal of tests necessary for Coast Guard approval proposing new standards for inflatable barriers to the development of of such PFDs meeting the standards. See PFDs designed for children. The Coast innovative PFDs as leading to an 46 CFR part 160, subpart 160.076 Guard understands that the UL expected improvement in the quality (Inflatable Recreational Personal Standards development effort continues and variety of inflatable lifejackets Floatation Devices); 60 FR 32835 (June to move forward, and there may be other available to the public. The Coast Guard 23, 1995). Subpart 160.076 incorporates standards addressing inflatable PFDs for appreciates the support and seeks by reference three Underwriters children in development. Inflatable public comment on the proposed rule. Laboratories (UL) Standards 1180, PFDs constructed and tested to any new ‘‘Fully Inflatable Personal Flotation standard adopted by a consensus body, A. Incorporations by Reference Devices’’ (First Edition); 1191, however, would not be eligible for Coast The proposal to update the standards ‘‘Components for Personal Flotation Guard approval until that standard is incorporated by reference in 46 CFR Devices’’ (Second Edition); and 1123, incorporated by reference into Coast 160.076–11 is intended to harmonize ‘‘Marine Buoyant Devices’’ (Fifth Guard regulations after consideration of the requirements for Coast Guard Edition). the appropriateness of incorporating approval of recreational inflatable PFDs The editions of these UL Standards such a new standard during a with voluntary industry consensus currently incorporated by reference into rulemaking that includes an opportunity standards. subpart 160.076 were current when the for public comment. The Coast Guard The updated UL Standards proposed Coast Guard promulgated subpart plans to initiate such a rulemaking in for incorporate by reference are as 160.076 in 1995. However, UL has since the future and is using this rulemaking follows: published newer editions of these to prepare for such a rulemaking as • UL 1180, ‘‘UL Standard for Safety Standards that the Coast Guard discussed below. for Fully Inflatable Recreational considers to contain technological and This rulemaking does not constitute Personal Flotation Devices,’’ is updated safety developments since 1995 that are approval of the use of inflatable PFDs from the May 1995 version (First important to codify in subpart 160.076. for users under 16 years of age or a Edition) to the February 2009 version In this proposed rule, the Coast Guard proposal for such approval. The newer (Second Edition); proposes to update the editions of the editions of the UL Standards proposed • UL 1191, ‘‘UL Standard for Safety UL Standards incorporated by reference to be incorporated by reference in this for Components for Personal Flotation in subpart 160.076. rule retain requirements for inflatable Devices’’ is updated from the May 1995 The editions of these UL Standards PFDs for adult wearers only. While version (Second Edition) to the August currently incorporated by reference in there are still outstanding concerns 2011 version (Fourth Edition); and subpart 160.076, as well the editions relative to the considerations for • UL 1123, ‘‘UL Standard for Safety that will replace the currently designing an inflatable PFD intended for for Marine Buoyant Devices,’’ is incorporated versions, limit the use of use by wearers under the age of 16, the updated from the February 1995 version inflatable PFDs to persons at least 16 Coast Guard recognizes that these (Fifth Edition) to the October 2008 years of age and weighing more than 80 matters are being addressed by UL’s STP version (Seventh Edition). pounds. Therefore, the Coast Guard only through the American National These updated versions of the UL approves inflatable PFDs with these age Standards Institute (ANSI)-accredited Standards include revisions that have

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been evaluated and adopted by UL’s design innovation in accordance with would have no substantive effect on STP, the ANSI-accredited Standards 46 CFR 160.076–16(g)(2) for an Coast Guard approval of inflatable PFDs. Development Organization for these equivalent measure of safety to the 2. UL 1191 standards, and reflect the industry-wide specific standards in subpart 160.076. consensus standard for design, Section 160.076–13(g)(2) provides for UL 1191, ‘‘UL Standard for Safety for manufacturing, and testing of inflatable Coast Guard approval of an inflatable Components for Personal Flotation PFDs and PFD components. As PFD that does not meet the specific Devices,’’ contains the construction, discussed above in the ‘‘Background’’ standards in subpart 160.076 if the PFD testing, and performance requirements section, the Coast Guard participated ‘‘provides at least the same degree of for the materials and components used fully in the development of these safety provided by other PFDs that meet in the construction of PFDs generally. standards through its representation on the requirements of this subpart.’’ See Several revisions in the Fourth Edition the STP. also 46 CFR 159.005–7(e) (providing for of UL 1191 from the Second Edition are not relevant to this rulemaking because 1. UL 1180 similar ‘‘equivalent’’ approval, not specific to PFDs, for lifesaving the revisions address only inherently UL 1180, ‘‘UL Standard for Safety for equipment that ‘‘has equivalent buoyant and hybrid PFDs, not inflatable Fully Inflatable Recreational Personal performance characteristics’’ and ‘‘is at PFDs. This rulemaking only addresses Flotation Devices,’’ contains the design, least as effective as [equipment] that inflatable PFDs, and incorporating by construction, testing, and performance meets the requirements [in relevant reference the Fourth Edition into 46 requirements for fully inflatable Coast Guard regulations]’’). The Coast CFR part 160, subpart1 160.076 only recreational PFDs for users over 16 years Guard has been evaluating and incorporates the portions of UL 1191 of age and weighing at least 80 pounds. approving user-assisted inflatable PFDs, pertaining to inflatable PFDs. In the direct final rule, the Coast Significant revisions in the Second user-convertible manual/automatic Guard intended to incorporate the Edition of UL 1180 from the First inflatable PFDs, manual inflators December 2008 version of the Fourth Edition include a revision to the without cylinder seal indication, and Edition of UL 1911 (including changes temperature cycling test and the inflatable work vests under 46 CFR through February 27, 2009). One addition of testing requirements for an 160.076–13(g)(2) because the Coast commenter expressed disagreement optional buddy line. The revision to the Guard has determined that they provide with a specific revision made to that temperature cycle narrows the range of at least the same degree of safety that is version of UL 1191, which increased the temperature extremes to harmonize with provided by inflatable PFDs meeting the international test methods in the tolerance for the minimum gross weight standards in subpart 160.076. This International Organization for of inflation gas cylinders from 10% to rulemaking would make this extra Standardization’s ISO 12402–9 15%. Following publication of the evaluation under 46 CFR 160.076– ‘‘Personal flotation devices—Part 9: Test direct final rule, UL 1191 was revised in 13(g)(2) unnecessary for user-assisted methods.’’ The additional testing August 2011 to return this value to 10%. inflatable PFDs, user-convertible requirements for an optional buddy line No other changes were made in the manual/automatic inflatable PFDs, provides the test procedures and August 2011 revision. The Coast Guard manual inflators without cylinder seal acceptance criteria for an inflatable PFD proposes to incorporate the most current indication, and inflatable work vests; equipped with a buddy line. This version of the Fourth Edition of UL these types of PFDs would be reviewed addition only impacts manufacturers 1991, which includes changes through who choose to equip inflatable PFDs for compliance with the specific August 2011, and which contains the with the optional buddy line. standards set forth in the proposed revision to the tolerance on the In a response to industry seeking subpart 160.076. minimum gross weight of inflation gas approval for inflatable PFD designs not UL 1180 Second Edition also includes cylinders. covered by UL 1180 First Edition, the the option for the laboratory conducting The other most notable substantive Second Edition also includes four new required performance tests to use youth changes in UL 1191 Fourth Edition supplements containing requirements subjects who fit the necessary size specific to inflatable PFDs are the for user-assisted inflatable PFDs, user- requirements (e.g., weight and chest addition of testing and performance convertible manual/automatic inflatable circumference) in the testing of adult- standards for automatic and convertible PFDs, manual inflators without cylinder sized PFDs, where appropriately sized manual/automatic inflation systems. seal indication, and inflatable work adult subjects are not available. This When the Coast Guard first promulgated vests. The supplements address design new option, however, would not affect 46 CFR part 160, subpart 160.076 in innovations that manufacturers the Coast Guard approval of inflatable 1995, the only design for an inflatable developed after publication of the First PFDs for use by adults only. Use of PFD involved manual activation of the Edition. youth subjects is limited to performance inflation mechanism. Since then, By incorporating by reference UL testing only. automatic and convertible manual/ 1180 Second Edition with these four UL 1180 Second Edition also includes automatic inflation systems have been new supplements, user-assisted editorial changes to correct typos and developed, and nearly half of the inflatable PFDs, user-convertible erroneous internal references. These inflatable PFD designs available in the manual/automatic inflatable PFDs, editorial changes clarify the U.S. market utilize automatic inflation. manual inflators without cylinder seal requirements for the body, primary The addition of testing and performance indication, and inflatable work vests closure, collar, shoulder, and secondary standards for automatic and convertible would be able to be approved under closure strength tests; revise the format manual/automatic inflation systems proposed 46 CFR part 160, subpart of the labels required by 46 CFR covers the innovative designs created by 160.076 setting forth design and 160.076–39, but do not change the manufacturers since the Second Edition. performance standards for these types of required information; add a definition of As discussed above, the Coast Guard has inflatable PFDs. Currently, in order to ‘‘white-water paddling’’; move been approving inflatable PFDs using review these design innovations for component and material tests from UL automatic or convertible manual/ Coast Guard approval, the Coast Guard 1180 to UL 1191; and renumber the automatic inflation systems under 46 has been evaluating each submitted paragraphs in UL 1180. These changes CFR 160.076–13(g)(2) because they

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provide at least the same degree of informational pamphlet required by 46 Method for Determining Gas safety provided by inflatable PFDs CFR 160.076–35. The only revision in Permeability Characteristics of Plastic meeting the standards in 46 CFR part UL 1123 Seventh Edition relevant to Film and Sheeting), because those 160, subpart 160.076. By incorporating inflatable PFDs is the removal of the standards, or equivalent test methods, UL 1191 Fourth Edition, inflatable PFDs statement in the standard erroneously are referenced in UL 1191 Fourth using automatic or convertible manual/ indicating a sole publisher of the Edition. automatic inflation systems would be pamphlet. As such, this revision would Finally, for the updated standards, the approved under the specific standards have no impact on Coast Guard Coast Guard proposes editorial changes set forth in proposed subpart 160.076, approval of inflatable PFDs. throughout the subpart to resolve rather than as equivalent safety devices. references to deleted paragraphs, to UL 1191 Fourth Edition includes B. Conforming Changes update or remove cross-references to minor substantive changes from the Because of the aforementioned specific sections of the UL Standards, Second Edition that provide greater proposed updates to the UL Standards and to conform the formatting of flexibility to manufacturers in incorporated by reference, the Coast incorporated references to current performing required tests or clarify Guard proposes to make several Federal Register requirements. existing requirements. The Fourth conforming changes to the regulatory C. Regulatory Text Revisions Edition eliminates the text to account for the revisions in the perchloroethylene exposures during the newer editions of the UL Standards. To prepare for a future rulemaking Operability/Discharge Test because this The Coast Guard proposes to remove addressing inflatable PFDs for use by test was determined not to be regulatory text that addresses children, the Coast Guard proposes to representative of the user environment requirements for inflatable PFDs that are remove from § 160.076–1 (Scope) the of an inflatable PFD and therefore contained in the UL 1180 Second words ‘‘approved for use by adults inapplicable as a safety test. The Fourth Edition or UL 1191 Fourth Edition. only.’’ This removal, however, would Edition also adds Xenon exposure as an Specifically, the Coast Guard proposes have no substantive effect on Coast optional accelerated weathering method to delete from 46 CFR 160.076–21(b)–(c) Guard approval of inflatable PFDs to provide manufacturers another option and 160.076–25(d)(2)(i)–(iv) the because the editions of the UL to choose from for the required requirements and acceptance criteria for Standards that would replace the weathering tests. The Fourth Edition the grab breaking strength, tear strength, editions currently incorporated by includes, for the first time, seam strength, and permeability tests for reference in subpart 160.076 still limit specifications for the water hardness inflation chamber materials, which are the use of inflatable PFDs to persons and liquid detergent used for included in the UL 1191 Fourth Edition. who are at least 16 years of age and conditioning PFD components and The Coast Guard also proposes to delete weigh more than 80 pounds. Removing materials to clarify certain test the repacking and rearming test from 45 these words would prepare subpart requirements and ensure repeatable test CFR 160.076–25(c) and the 160.076 for a future rulemaking because, results. The Fourth Edition adds requirements for marking inflation if the Coast Guard decides as part of that clarifying language to the test procedure mechanisms from 46 CFR 160.076–21(d) future rulemaking to extend the use of for evaluating torsional stiffness of tie and 160.076–39(e) because these inflatable PFDs to children, the Coast tapes. provisions are included in the UL 1180 Guard anticipates it will do so by again The Fourth Edition also includes one Second Edition. The deletion of this updating the standards incorporated by substantive change to incorporate regulatory text would have no reference, which would be the only directly in UL 1191 a portion of the substantive effect on the requirements place in subpart 160.076 that contains requirements currently contained in for Coast Guard approval of recreational age and weight limitations after the subpart 160.076. The Fourth Edition inflatable PFDs, because the effective date of this proposed contains the additional marking requirements are retained in the rulemaking. requirements for inflation systems updated UL Standards incorporated by In response to the direct final rule, currently required by 46 CFR 160.067– reference in revised 46 CFR 160.076–11. one commenter expressed concern that 39(e). Because the Fourth Edition Because incorporating a standard by deleting the words ‘‘approved for use by includes the additional marking reference is treated as if the adults only’’ would create a perception requirements, these requirements would requirements of the standards are that inflatable PFDs for youth would be be deleted from the regulatory text in published in the CFR, retaining this available on the date the rule went into section 160.067–39(e), as discussed regulatory text would be redundant. effect, would facilitate teens using below in the ‘‘Conforming Changes’’ The Coast Guard also proposes to existing inflatable PFDs, and would section. remove standards currently enable marketing of existing inflatable The Fourth Edition also includes incorporated by reference in subpart PFDs to youth. The commenter also editorial changes to correct typos and 160.076 that would apply through the expressed concern that this rulemaking references to clarify the inflation system newer edition of UL 1191. Because these is premature in light of work that still discharge test procedure and the standards would still apply to inflatable needs to be done to evaluate sizing maximum crack pressure for the PFDs through the UL 1191 Fourth requirements for infant or child PFDs. operability test. Edition incorporated by reference in The Coast Guard seeks comment on this subpart 160.076, it would be redundant issue. 3. UL 1123 to retain the standards in subpart The Coast Guard also proposes UL 1123, ‘‘UL Standard for Safety for 160.076 text. Specifically, the Coast revising § 160.076–19 (Recognized Marine Buoyant Devices,’’ contains the Guard proposes to remove Federal Test laboratories) to replace the reference to design, construction, testing, and Method Standard No. 191A (Federal Underwriters Laboratories (UL) as the performance requirements for Standard for Textile Test Methods), sole recognized laboratory for testing of inherently buoyant recreational PFDs. American Society for Testing and inflatable PFDs and PFD components The Coast Guard uses this standard in Materials’ ASTM D 751–95 (Standard with a reference to the Coast Guard’s 46 CFR part 160, subpart 160.076 only Test Methods for Coated Fabrics), and Marine Information Exchange (CGMIX) to define the format and content of the ASTM D 1434–82 (Standard Test Web site, where all Coast Guard-

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recognized laboratories are listed. When Guard-approved inflatable PFDs already required tests, and to obtain the UL subpart 160.076 was initially published follow the editions of the UL Standards certification. This rulemaking would in 1995, UL was, and currently being incorporated by reference into 46 also result in better compliance with the continues to be, the only laboratory CFR part 160, subpart 160.076 by this National Technology Transfer and recognized by the Coast Guard for rulemaking. The Coast Guard requires Advancement Act (NTTAA), which approval testing and production approval tests to be performed by an directs agencies to use voluntary oversight of Coast Guard-approved independent laboratory recognized by consensus standards in their regulatory inflatable PFDs under this subpart. the Coast Guard under 46 CFR part 159, activities. However, additional laboratories may be subpart 159.010. Currently, UL is the Because the rulemaking would recognized by the Coast Guard to only recognized independent laboratory harmonize subpart 160.076 with perform these functions. In order to for inflatable PFDs, and UL requires existing UL Standards, any ambiguity maintain a listing of recognized manufacturers to conform to its most associated with inflatable PFD standards laboratories outside of the regulatory current standards, which are the would be reduced. Harmonization of text consistent with such listings and editions being incorporated by reference these standards is important to fulfill information for other types of lifesaving into subpart 160.076. Additionally, UL the Coast Guard’s mission of equipment, the Coast Guard proposes to offers a certification for recreational establishing minimum safety standards, replace the list in subpart 160.076 with inflatable PFDs that conform to UL’s and procedures and tests required to the reference to where to find the list on most current standards. The UL measure conformance with those the CGMIX. certification provides a product liability standards, for recreational vessels and benefit to manufacturers, and obtaining associated equipment. VI. Incorporation by Reference the UL certification has become an Material proposed for incorporation industry custom for manufacturers of B. Small Entities by reference appears in proposed 46 commercially-sold recreational Under the Regulatory Flexibility Act CFR 160.076–11. You may inspect this inflatable PFDs. (5 U.S.C. 601–612), we have considered material at U.S. Coast Guard As described above, industry is whether this rulemaking would have a Headquarters where indicated under currently following the editions of the significant economic impact on a ADDRESSES. Copies of the material are UL Standards incorporated by reference substantial number of small entities. available from the sources listed in into subpart 160.076 in this rulemaking, The term ‘‘small entities’’ comprises paragraph (b) of § 160.076–11. and PFD manufacturers will adhere to small businesses, not-for-profit Before publishing a binding rule, the these standards regardless of whether organizations that are independently Coast Guard will submit this material to this rule is promulgated. Therefore, this owned and operated and are not the Director of the Federal Register for modification to 46 CFR part 160, dominant in their fields, and approval of the incorporation by subpart 160.076 is not expected to governmental jurisdictions with impose a burden on industry. reference. populations of fewer than 50,000 In addition, the Coast Guard does not people. VII. Regulatory Analyses expect removing the language We developed this rule after ‘‘approved for use by adults only’’ in 46 The Coast Guard expects that this rule considering numerous statutes and CFR 160.076–1 to have a substantive would not have an impact on small executive orders related to rulemaking. impact because the Coast Guard will entities. As described in the ‘‘Regulatory Below we summarize our analyses continue approving recreational Planning and Review’’ section, we do based on 14 of these statutes or inflatable PFDs with the current age and not expect this rule would result in executive orders. weight limitations. As discussed above additional costs to industry. However, in the ‘‘Discussion of the Rule’’ section, this rule would improve efficiency by A. Regulatory Planning and Review the age and weight limitations are found providing consistency between Coast Executive Orders 12866 (‘‘Regulatory in current editions of the UL Standards Guard regulations and UL Standards. Planning and Review’’) and 13563 incorporated in subpart 160.076 and are Therefore, the Coast Guard certifies that (‘‘Improving Regulation and Regulatory retained in the newer editions of the UL under 5 U.S.C. 605(b), this proposed Review’’) direct agencies to assess the Standards proposed to be incorporated rule, if promulgated, will not have a costs and benefits of available regulatory by reference into subpart 160.076 in this significant economic impact on a alternatives and, if regulation is rulemaking. The remaining changes to substantial number of small entities. necessary, to select regulatory subpart 160.076 are minor editorial If you think that your business, approaches that maximize net benefits updates. Please see the ‘‘Discussion of organization, or governmental (including potential economic, the Rule’’ section above for additional jurisdiction qualifies as a small entity environmental, public health and safety details. and that this rule would have a effects, distributive impacts, and The primary benefit of this significant economic impact on it, equity). Executive Order 13563 rulemaking would be the increase in please submit a comment to the Docket emphasizes the importance of regulatory efficiencies in the maritime Management Facility at the address quantifying both costs and benefits, of community by harmonizing Coast Guard under ADDRESSES. In your comment, reducing costs, of harmonizing rules, regulations in 46 CFR part 160, subpart explain why you think your business or and of promoting flexibility. This NPRM 160.076 with current voluntary industry organization qualifies, as well as how has not been designated a ‘‘significant consensus standards. This rulemaking and to what degree this rule will regulatory action’’ under section 3(f) of would result in greater consistency economically affect it. between Coast Guard regulations and Executive Order 12866. Accordingly, C. Assistance for Small Entities the NPRM has not been reviewed by the consensus standards and would reduce Office of Management and Budget. A burdens on manufacturers who Under section 213(a) of the Small draft regulatory assessment follows: currently have to maintain multiple Business Regulatory Enforcement The Coast Guard does not expect this editions of the UL Standards to comply Fairness Act of 1996 (Pub. L. 104–121), rulemaking to result in additional costs with Coast Guard regulations, to use UL we offer to assist small entities in to industry, as manufacturers of Coast as an independent laboratory to perform understanding the rule so that they can

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better evaluate its effects on them and I. Protection of Children Components for Personal Flotation participate in the rulemaking process. We have analyzed this rule under Devices.’’ Small businesses may send comments Executive Order 13045, Protection of M. Coast Guard Authorization Act Sec. on the actions of Federal employees Children from Environmental Health 608 (46 U.S.C. 2118(a)) who enforce, or otherwise determine Risks and Safety Risks. This rule is not compliance with, Federal regulations to an economically significant rule and Section 608 of the Coast Guard the Small Business and Agriculture would not create an environmental risk Authorization Act of 2010 (Pub. L. 111– Regulatory Enforcement Ombudsman to health or risk to safety that may 281) adds new section 2118 to 46 U.S.C. and the Regional Small Business disproportionately affect children. Subtitle II (Vessels and Seamen), Regulatory Fairness Boards. The Chapter 21 (General). New section Ombudsman evaluates these actions J. Indian Tribal Governments 2118(a) sets forth requirements for annually and rates each agency’s This rule does not have tribal standards established for approved responsiveness to small business. If you implications under Executive Order equipment required on vessels subject wish to comment on actions by 13175, Consultation and Coordination to 46 U.S.C. Subtitle II (Vessels and employees of the Coast Guard, call 1– with Indian Tribal Governments, Seamen), Part B (Inspection and 888–REG–FAIR (1–888–734–3247). The because it would not have a substantial Regulation of Vessels). Those standards Coast Guard will not retaliate against direct effect on one or more Indian must be ‘‘(1) based on performance small entities that question or complain tribes, on the relationship between the using the best available technology that about this rule or any policy or action Federal Government and Indian tribes, is economically achievable; and (2) of the Coast Guard. or on the distribution of power and operationally practical.’’ See 46 U.S.C. 2118(a). This rulemaking addresses D. Collection of Information responsibilities between the Federal Government and Indian tribes. inflatable recreational PFDs for Coast This rule calls for no new collection Guard approval that are required on of information under the Paperwork K. Energy Effects vessels subject to 46 U.S.C. Subtitle II, Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under Part B, and the Coast Guard has ensured 3520). Executive Order 13211, Actions this rule satisfies the requirements of 46 E. Federalism Concerning Regulations That U.S.C. 2118(a), as necessary. A rule has implications for federalism Significantly Affect Energy Supply, N. Environment under Executive Order 13132, Distribution, or Use. We have determined that it is not a ‘‘significant We have analyzed this rule under Federalism, if the rule has a substantial Department of Homeland Security direct effect on State or local energy action’’ under that order because it is not a ‘‘significant regulatory action’’ Management Directive 023–01 and governments and would either preempt Commandant Instruction M16475.lD, State law or impose a substantial direct under Executive Order 12866 and is not likely to have a significant adverse effect which guide the Coast Guard in cost of compliance on them. We have complying with the National analyzed this rule under that Order and on the supply, distribution, or use of energy. The Administrator of the Office Environmental Policy Act of 1969 have determined that it does not have (NEPA)(42 U.S.C. 4321–4370f), and implications for federalism. of Information and Regulatory Affairs has not designated it as a significant have made a preliminary determination F. Unfunded Mandates Reform Act energy action. Therefore, it does not that this action is one of a category of actions that does not individually or The Unfunded Mandates Reform Act require a Statement of Energy Effects under Executive Order 13211. cumulatively have a significant effect on of 1995 (2 U.S.C. 1531–1538) requires the human environment. A preliminary Federal agencies to assess the effects of L. Technical Standards environmental analysis checklist their discretionary regulatory actions. In supporting this determination is particular, the Act addresses actions The National Technology Transfer and Advancement Act (NTTAA) (15 available in the docket where indicated that may result in the expenditure by a under the ‘‘Public Participation and State, local, or tribal government, in the U.S.C. 272 note) directs agencies to use voluntary consensus standards in their Request for Comments’’ section of this aggregate, or by the private sector of preamble. This rule involves personal $100,000,000 (adjusted for inflation) or regulatory activities unless the agency provides Congress, through the Office of flotation device standards and falls more in any one year. Though this rule under regulations concerning safety would not result in such an Management and Budget, with an explanation of why using these equipment described in section 6(a) of expenditure, we do discuss the effects of the ‘‘Appendix to National this rule elsewhere in this preamble. standards would be inconsistent with applicable law or otherwise impractical. Environmental Policy Act: Coast Guard G. Taking of Private Property Voluntary consensus standards are Procedures for Categorical Exclusions, This rule would not cause a taking of technical standards (e.g., specifications Notice of Final Agency Policy’’ (67 FR private property or otherwise have of materials, performance, design, or 48244, July 23, 2002). We seek any taking implications under Executive operation; test methods; sampling comments or information that may lead Order 12630, Governmental Actions and procedures; and related management to the discovery of a significant Interference with Constitutionally systems practices) that are developed or environmental impact from this Protected Property Rights. adopted by voluntary consensus proposed rule. standards bodies. List of Subjects in 46 CFR Part 160 H. Civil Justice Reform This rule uses the following voluntary This rule meets the applicable consensus standards: UL 1123, ‘‘UL Marine safety, Incorporation by standards in sections 3(a) and 3(b)(2) of Standard for Safety for Marine Buoyant reference, Reporting and recordkeeping Executive Order 12988, Civil Justice Devices’’; UL 1180, ‘‘UL Standard for requirements. Reform, to minimize litigation, Safety for Fully Inflatable Recreational For the reasons discussed in the eliminate ambiguity, and reduce Personal Flotation Devices’’; and UL preamble, the Coast Guard proposes to burden. 1191, ‘‘UL Standard for Safety for amend 46 CFR part 160 as follows:

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PART 160—LIFESAVING EQUIPMENT § 160.076–19 Recognized laboratories. § 160.076–31 [Amended] The approval and production 11. Amend § 160.076–31 as follows: 1. The authority citation for part 160 oversight functions that this subpart is revised to read as follows: a. In paragraph (c)(1), remove the requires to be conducted by a words ‘‘The average and individual Authority: 46 U.S.C. 2103, 3306, 3703 and recognized laboratory must be results of testing the minimum number 4302; E.O. 12234; 45 FR 58801; 3 CFR, 1980 conducted by an independent laboratory of samples prescribed by § 160.076– Comp., p. 277; 49 CFR 1.46; and Department recognized by the Coast Guard under of Homeland Security Delegation No. 0170.1. 25(d)(2)’’ and add, in their place, the subpart 159.010 of part 159 of this words ‘‘The materials in each inflatable 2. Revise § 160.076–1 to read as chapter to perform such functions. A list chamber’’; and remove the words follows: of recognized independent laboratories ‘‘§ 160.076–21(b) and (c)’’ and add, in is available from the Commandant and their place, the words ‘‘Table 29.1 of UL § 160.076–1 Scope. online at http://cgmix.uscg.mil. * * * * * 1191 (incorporated by reference, see 7. Revise § 160.076–21 to read as § 160.076–11)’’; (b) Inflatable PFDs approved under follows: this subpart rely entirely upon inflation b. In paragraph (c)(2), remove the for buoyancy. § 160.076–21 Component materials. words ‘‘§ 160.076–21(d)(2)(iv). The Each component material used in the results for each inflation chamber must § 160.076–7 [Amended] manufacture of an inflatable PFD be at least 90% of the results obtained 3. Amend § 160.076–7(b) by adding must— in approval testing’’ and add, in their the words ‘‘(incorporated by reference, (a) Meet the applicable requirements place, the words ‘‘Table 29.1 of UL see 160.076–11)’’ after the words ‘‘UL of subpart 164.019 of this chapter, UL 1191.’’; 1180’’. 1191 and UL 1180 (incorporated by c. In paragraph (c)(3), after the words reference, see § 160.076–11), and this § 160.076–9 [Amended] ‘‘UL 1180’’, add the words section; and ‘‘(incorporated by reference, see 4. Amend § 160.076–9(b) by adding (b) Be of good quality and suitable for § 160.076–11)’’, and remove the number the words ‘‘(incorporated by reference, the purpose intended. ‘‘7.15’’, and add, in its place, the see 160.076–11)’’ after the words ‘‘UL number ‘‘41’’; 1180’’. § 160.076–23 [Amended] d. In paragraph (c)(4), after the words 5. Amend § 160.076–11 as follows: 8. Amend § 160.076–23 by adding the ‘‘UL 1180’’, remove the number ‘‘7.16’’, a. In paragraph (a), remove the first words ‘‘(incorporated by reference, see and add, in its place, the number ‘‘42’’; occurrence of the words ‘‘paragraph (b) § 160.076–11)’’ after the words ‘‘UL of’’, which appears after the words ‘‘one 1180’’. e. In paragraph (c)(5), after the words listed in’’. 9. Amend § 160.076–25 as follows: ‘‘UL 1180’’, remove the words ‘‘7.2.2, b. Revise paragraph (b) to read as a. In paragraph (a), after the words 7.2.10, except 7.2.5’’ and add, in their follows: ‘‘UL 1180’’, add the words place, the number ‘‘29’’; and ‘‘(incorporated by reference, see f. In paragraph (c)(6), after the words § 160.076–11 Incorporation by reference. § 160.076–11)’’; ‘‘UL 1180’’, remove the words ‘‘7.4.1 * * * * * b. Remove and reserve paragraph (c); and .2’’ and add, in their place, the (b) Underwriters Laboratories (UL) and number ‘‘31’’. Underwriters Laboratories, Inc., 333 c. Revise paragraph (d) to read as § 160.076–35 [Amended] Pfingsten Road, Northbrook, IL 60062– follows. 2096 (Phone (847) 272–8800; Facsimile: 12. Amend § 160.076–35 by adding (847) 272–8129). § 160.076–25 Approval Testing. the words ‘‘(incorporated by reference, (1) UL Standard for Safety for Marine * * * * * see § 160.076–11)’’ after the words ‘‘UL Buoyant Devices, UL 1123, Seventh (d) Each PFD design must be visually 1123’’. Edition including revisions through examined for compliance with the February 14, 2011, October 1, 2008, construction and performance § 160.076–37 [Amended] (‘‘UL 1123’’), incorporation by reference requirements of §§ 160.076–21 and 13. Amend § 160.076–37(b) by approved for § 160.076–35. 160.076–23 and UL 1180 and UL 1191 removing the words ‘‘section 11 of ’’ (2) UL Standard for Safety for Fully (incorporated by reference, see after the words ‘‘specified in’’ and by Inflatable Recreational Personal § 160.076–11). adding the words ‘‘(incorporated by Flotation Devices, UL 1180, Second * * * * * reference, see § 160.076–11)’’ after the Edition including revisions through 10. Amend § 160.076–29 as follows: words ‘‘UL 1180’’. December 3, 2010, February 13, 2009, a. In paragraph (d), remove the words (‘‘UL 1180’’), incorporation by reference ‘‘in accordance with UL 1180’’; and § 160.076–39 [Amended] approved for §§ 160.076–7; 160–076–9; b. Revise paragraph (e)(4)(i) to read as 14. Amend § 160.076–39 as follows: 160.076–21; 160.076–23; 160.076–25; follows: a. In § 160.076–39(a), remove the 160.076–31; 160.076–37; and 160.076– § 160.076–29 Production oversight. words ‘‘section 10’’ after the words ‘‘UL 39. 1180’’ and add, in their place, the words (3) UL Standard for Safety for * * * * * ‘‘(incorporated by reference, see Components for Personal Flotation (e) * * * § 160.076–11)’’; and (4) * * * Devices, UL1191, Fourth Edition b. Remove paragraph (e). including revisions through August 24, (i) Samples must be selected from 2011, December 12, 2008, (‘‘UL 1191’’), each lot of incoming material. Unless Dated: September 23, 2011. incorporation by reference approved for otherwise specified, Table 29.1 of UL J.G. Lantz, §§ 160.076–21; 160.076–25; 160.076–29; 1191 (incorporated by reference, see Director of Commercial Regulations and and 160.076–31. § 160.076–11) prescribes the number of Standards, U.S. Coast Guard. 6. Revise § 160.076–19 to read as samples to select. [FR Doc. 2011–25034 Filed 9–28–11; 8:45 am] follows: * * * * * BILLING CODE 9110–04–P

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FEDERAL COMMUNICATIONS the FCC hereby publishes a plan for the directions will be sent in reply. Parties COMMISSION review of rules adopted by the agency who choose to file by paper must file an in calendar year 2000 which have, or original and one copy of each filing. 47 CFR Chapter I might have, a significant economic Again, please include the docket [DA 11–1333] impact on a substantial number of small (proceeding) and ‘‘DA’’ number. entities. The purpose of the review is to Filings can be sent by hand or Possible Revision or Elimination of determine whether such rules should be messenger delivery, by commercial Rules continued without change, or should be amended or rescinded, consistent with overnight courier, or by first-class or AGENCY: Federal Communications the stated objective of section 610 of the overnight U.S. Postal Service mail. All Commission. RFA, to minimize any significant hand-delivered or messenger-delivered ACTION: Review of regulations; economic impact of such rules upon a paper filings for the Commission’s comments requested. substantial number of small entities. Secretary must be delivered to FCC 2. This document lists the FCC Headquarters at 445 12th St., SW., Room SUMMARY: This document invites TW–A325, Washington, DC 20554. members of the public to comment on regulations to be reviewed during the Again, please include the docket the Federal Communication next twelve months. In succeeding Commission’s (FCC’s or Commission’s) years, as here, the Commission will (proceeding) and ‘‘DA’’ number. rules to be reviewed pursuant to section publish a list for the review of The filing hours at this location are 610 of the Regulatory Flexibility Act of regulations promulgated ten years 8 a.m. to 7 p.m. 1980, as amended (RFA). The purpose preceding the year of review. 3. In reviewing each rule in a manner All hand deliveries must be held of the review is to determine whether consistent with the requirements of together with rubber bands or fasteners. Commission rules whose ten-year section 610 the FCC will consider the • anniversary dates are in the year 2010, Any envelopes must be disposed of following factors: as contained in the Appendix, should be before entering the building. (a) The continued need for the rule; • continued without change, amended, or (b) The nature of complaints or Commercial overnight mail (other rescinded in order to minimize any comments received concerning the rule than U.S. Postal Service Express Mail significant impact the rules may have on from the public; and Priority Mail) must be sent to 9300 a substantial number of small entities. (c) The complexity of the rule; East Hampton Drive, Capitol Heights, Upon receipt of comments from the (d) The extent to which the rule MD 20743. public, the Commission will evaluate overlaps, duplicates, or conflicts with • U.S. Postal Service first-class mail, those comments and consider whether other federal rules and, to the extent Express Mail, and Priority Mail should action should be taken to rescind or feasible, with state and local be addressed to 445 12th Street, SW., amend the relevant rule(s). governmental rules; and Washington, DC 20554. DATES: Comments may be filed on or (e) The length of time since the rule • before November 28, 2011. has been evaluated or the degree to All filings must be addressed to the FOR FURTHER INFORMATION CONTACT: which technology, economic conditions, Commission’s Secretary, Office of the Sharon K. Stewart, Chief of Staff, Office or other factors have changed in the area Secretary, Federal Communications of Communications Business affected by the rule. Commission. Opportunities (OCBO), Federal 4. Appropriate information has been Comments in this proceeding will be Communications Commission, (202) provided for each rule, including a brief available for public inspection and 418–0990. People with disabilities may description of the rule and the need for, copying during regular business hours contact the FCC to request reasonable and legal basis of, the rule. The public at the FCC Reference Information accommodations (accessible format is invited to comment on the rules Center, Portals II, 445 12th Street, SW., chosen for review by the FCC according documents, sign language interpreters, Room CY–A257, Washington, DC 20554. to the requirements of section 610 of the CART, etc.) by e-mail: [email protected] They may also be purchased from the RFA. All relevant and timely comments or phone: 202–418–0530 or TTY: 202– Commission’s duplicating contractor, 418–0432. will be considered by the FCC before final action is taken in this proceeding. Best Copy and Printing, Inc., 445 12th ADDRESSES: Federal Communications Street, SW., Room CY–B402, Commission, Office of the Secretary, Comments may be filed using the Commission’s Electronic Comment Washington, DC 20554, telephone 202– 445 12th Street, SW., Washington, DC 488–5300 or 800–378–3160, facsimile 20554. Filing System (‘‘ECFS’’) or by filing paper copies. Comments filed through 202–488–5563, or via e-mail at fcc@ SUPPLEMENTARY INFORMATION: Each year the ECFS may be sent as an electronic bcniweb.com. To request materials in the Commission will publish a list of file via the Internet to http://www.fcc. accessible formats for people with ten-year old rules for review and gov/cgb/ecfs/. Generally, only one copy disabilities (Braille, large print, comment by interested parties pursuant of an electronic submission must be electronic files, audio format), send an to the requirements of section 610 of the filed. In completing the transmittal e-mail to [email protected] or call the RFA. screen, commenters should include Consumer & Governmental Affairs FCC Seeks Comment Regarding their full name, U.S. Postal Service Bureau at 202–418–0530 (voice), 202– Possible Revision or Elimination of mailing address, and the applicable 418–0432 (TTY). docket (proceeding) and ‘‘DA’’ number. Rules Under The Regulatory Flexibility For information on the requirements Act, 5 U.S.C. Section 610 Parties may also submit an electronic comment by Internet e-mail. To obtain of the RFA, the public may contact CB Docket No. 11–72 filing instructions for e-mail comments, Carolyn Fleming Williams, Senior Comment Period Closes: November commenters should send an e-mail to Deputy Director, Office of 28, 2011. [email protected], and should include the Communications Business 1. Pursuant to the Regulatory following words in the body of the Opportunities, 202–418–0990 or visit Flexibility Act (RFA), see 5 U.S.C. 610, message: ‘‘get form.’’ A sample form and http://www.fcc.gov/ocbo.

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Federal Communications Commission. Part 1—Practice and Procedure Part 20—Commercial Mobile Radio Thomas A. Reed, Services Subpart Q—Competitive Bidding Director, Office of Communications Business Proceedings Opportunities. Brief Description: These rules make Brief Description: The Part 1 rules following adjustments to the Appendix state the general rules of practice and deployment schedule that must be List of rules for review pursuant to the procedure before the Federal followed by wireless carriers that Regulatory Flexibility Act of 1980, 5 Communications Commission. Subpart choose to implement enhanced 911 U.S.C. 610, for the ten-year period Q sets forth the provisions Phase II service using a handset-based beginning in the year 2000 and ending implementing section 309(j) of the technology. The rules defer the date for in the year 2010. All listed rules are in Communications Act of 1934, as initial distribution of Automatic Title 47 of the Code of Federal amended, authorizing the Commission Location Identification (ALI)-capable Regulations. to employ competitive bidding handsets by seven months, adjust the procedures to resolve mutually timetable for carriers to meet certain Part 0—Commission Organization exclusive applications for certain initial interim benchmarks for activating new Subpart A—Organization licenses. ALI-capable handsets, defer the date by Need: These rules are needed to which a carrier must achieve full Brief Description: Section 0.185 of the implement the Commission’s penetration of ALI-capable handsets rules sets forth the responsibilities of competitive bidding authority under until December 31, 2005, modify the the Bureaus and Offices in providing section 309(j) of the Communications manner in which the Commission assistance to the Chief, Public Safety Act of 1934, as amended, including the defines full penetration by adopting a and Homeland Security Bureau, in the designated entity and tribal land requirement that carriers achieve 95 performance of that person’s duties with bidding credit programs. percent penetration of ALI-capable respect to homeland security, national Legal Basis: 47 U.S.C. 151, 154(i), handsets by the December 31, 2005 date, security, emergency management and 154(j), 155, 157, 225, 303(r) and 309(j). eliminate the separate handset phase-in preparedness, disaster management, Section Number and Title: schedule triggered by a request from a defense, and related activities. Section 1.2107(e)—Submission of down 0.185(e) requires the head of each payment and filing of long-form Public Safety Answering Point, and Bureau and Office to either serve as applications. extend the deadline for carriers to file Public Safety/Homeland Security 1.2110(b), (c), (f)(3)—Designated Phase II enhanced 911 implementation Liaison to the Public Safety and entities. reports. Need: These rules establish a more Homeland Security Bureau or designate Subpart V—Implementation of Section practical, understandable, and workable a Deputy Chief of the Bureau or Office 706 of the Telecommunications Act of to serve as liaison. 1996; Commission Collection of schedule for implementation of handset- Need: This rule ensures that the Advanced Telecommunications based ALI solutions for enhanced 911 public safety initiatives of the Public Capability Data Phase II service. Safety and Homeland Security Bureau Legal Basis: 47 U.S.C. 154, 160, 251– will be coordinated efficiently and Brief Description: Part 1 contains rules relating to Commission practices 254, 303, and 332 unless otherwise comprehensively with all the noted. Commission’s regulatory activities. and procedures. Subpart V sets forth the rules by which certain commercial and Section Number and Title: Legal Basis: 47 U.S.C. 151, 154(i), government-controlled entities report 154(j), 155b, 155(c) and 303(r). 20.18(g)(1), (g)(2); and 20.18(i)—911 data to the Commission concerning the service. Section Number and Title: deployment of advanced 0.185(e)—Responsibilities of the telecommunications capability, defined Part 22—Public Mobile Services bureaus and staff offices. pursuant to 47 U.S.C. 157 as ‘‘high- Subpart H—Cellular Radiotelephone speed, switched, broadband Subpart B—Delegations of Authority Service telecommunications capability that Brief Description: These rules enables users to originate and receive Brief Description: Part 22 contains the prescribe the duties that the high-quality voice, data, graphics, and rules relating to the Public Mobile Commission authorizes to be performed video telecommunications using any Services, specifically, the rules by its various Bureaus and Offices. technology,’’ and the deployment of establishing the requirements and Section 0.251 delegates authority to the services that are competitive with conditions under which radio stations Office of General Counsel. Section advanced telecommunications may be licensed and used in those 0.251(i) states that the General Counsel capability. services. Subpart H sets forth the rules may perform all administrative Need: These rules are needed to governing the licensing and operation of determinations provided for by the Debt implement the Commission’s data cellular radiotelephone systems. Collection Improvement Act of 1996. collection authority with regard to the Need: The rule establishes the terms Need: This rule allows the efficient deployment of advanced and conditions under which parties in resolution of monetary claims of the telecommunications capabilities this service can seek and obtain United States Government that arise pursuant to section 706 of the approval for partitioning and/or from the activities of the Commission. Telecommunications Act of 1996. Legal Basis: 47 U.S.C. 151, 154(i), disaggregation of a license. Legal Basis: 31 U.S.C. 3711; 47 U.S.C. 154(j), 155, 225, 303(r) and 309. 152, 153, 154, 155, 301, 303, 307, 308, Legal Basis: 47 U.S.C. 154, 222, 303, Section Number and Title: 309 and 332. 309, 315 and 317. 1.7000—Purpose. Section Number and Title: 1.7001—Scope and content of filed Section Number and Title: 0.251(i)—Authority delegated [to reports. 22.948—Partitioning and General Counsel]. 1.7002—Frequency of reports. disaggregation.

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Part 24—Personal Communications competitive bidding authority under 47 miscellaneous wireless communications Services U.S.C. 309(j). services (WCS), specifically, the Legal Basis: 47 U.S.C. 151, 154, 155, conditions under which spectrum is Subpart D—Narrowband PCS 157, 225, 301, 302, 303, 309 and 332. made available and licensed for the Brief Description: Part 24 contains the Section Number and Title: provision of wireless communications rules relating to the Personal 24.709—Eligibility for licenses for services in the 2305–2320 MHz and Communications Services (PCS), frequency Blocks C or F. 2345–2360 MHz; 746–763 MHz, 775– specifically, the rules establishing the Subpart I—Interim Application, 793 MHz, and 805–806 MHz; 698–746 requirements and conditions under Licensing, and Processing Rules for MHz; (4) 1390–1392 MHz; 1392–1395 which radio stations may be licensed Broadband PCS MHz and 1432–1435 MHz; 1670–1675 and used in those services. Subpart D MHz; 1710–1755 MHz and 2110–2155 sets forth the rules governing the Brief Description: Part 24 contains the MHz; and 2495–2690 MHz bands. licensing and operation of narrowband rules relating to the Personal Subpart B sets forth the terms and PCS systems authorized in the 901–902, Communications Services (PCS), conditions under which parties may 930–931, and 940–941 MHz bands (900 specifically, the rules establishing the apply and receive authorization to MHz band). requirements and conditions under operate a WCS system. Need: The rule establishes the terms which radio stations may be licensed Need: These rules clarify that an and conditions under which parties in and used in those services. Subpart I applicant and licensee may provide a this service can seek and obtain sets forth the rules governing interim variety of services (e.g., common carrier, approval for partitioning and/or applications, licensing, and other private internal, broadcast, etc.) within disaggregation of a license. procedural rules for broadband PCS. a single authorization, provided the Need: This rule clarifies that no Legal Basis: 47 U.S.C. 154, 301, 302, licensee complies with all other frequency Block C or Block F won in 303, 309 and 332. applicable Commission rules; they also closed bidding can be assigned or Section Number and Title: establish the procedural rules that transferred unless the application for 24.104—Partitioning and applicants must follow to obtain assignment or transfer of control is filed disaggregation. Commission authorization for a given on or after the date the initial licensee WCS service. Subpart F—Competitive Bidding has notified the Commission that it has Legal Basis: 47 U.S.C. 154, 301, 302, Procedures for Narrowband PCS met its five-year construction build-out 303, 307, 309, 332, 336 and 337. Brief Description: Part 24 contains the requirement. Section Number and Title: rules relating to the Personal Legal Basis: 47 U.S.C. 154, 301, 302, Communications Services (PCS), 303, 309 and 332. 27.10—Regulatory status. specifically, the rules establishing the Section Number and Title: 27.11(c)—Initial authorization. requirements and conditions under 24.839(a)(6)—Transfer of control or Subpart C—Technical Standards which radio stations may be licensed assignment of license. Brief Description: Part 27 contains the and used in those services. Subpart F Part 27—Miscellaneous Wireless Commission rules relating to sets forth the rules governing mutually Communications Services miscellaneous wireless communications exclusive initial applications for services (WCS), specifically, the narrowband PCS service licenses, which Subpart A—General Information conditions under which spectrum is are subject to competitive bidding. Brief Description: Part 27 contains the Need: These rules are needed to made available and licensed for the Commission rules relating to provision of wireless communications implement the Commission’s miscellaneous wireless communications competitive bidding authority under services in the 2305–2320 MHz and services (WCS), specifically, the 2345–2360 MHz; 746–763 MHz, 775– section 309(j) of the Communications conditions under which spectrum is Act of 1934, as amended. 793 MHz, and 805–806 MHz; 698–746 made available and licensed for the MHz; (4) 1390–1392 MHz; 1392–1395 Legal Basis: 47 U.S.C. 154, 301, 302, provision of wireless communications 303, 309 and 332. MHz and 1432–1435 MHz; 1670–1675 services in the 2305–2320 MHz and MHz; 1710–1755 MHz and 2110–2155 Section Number and Title: 2345–2360 MHz; 746–763 MHz, 775– 24.321—Designated entities. MHz; and 2495–2690 MHz bands. 793 MHz, and 805–806 MHz; 698–746 Subpart C sets forth the various Subpart H—Competitive Bidding MHz; (4) 1390–1392 MHz; 1392–1395 technical standards with which a WCS Procedures for Broadband PCS MHz and 1432–1435 MHz; 1670–1675 licensee must comply. MHz; 1710–1755 MHz and 2110–2155 Need: These rules set forth emission Brief Description: Part 24 contains the MHz; and 2495–2690 MHz bands. rules relating to the Personal limitations for WCS licensees in various Subpart A sets for the conditions and bands; establish standards such that Communications Services (PCS), parameters under which WCS licenses specifically, the rules establishing the WCS licensees will not harmfully will be authorized. interfere with television or DTV requirements and conditions under Need: The rules set forth the broadcasting; and establish procedures which radio stations may be licensed availability of certain frequencies and and consequences for when a WCS and used in those services. Subpart H services areas that certain WCS licensee, either voluntarily or sets forth the provisions implementing licensees may use. section 309(j) of the Communications Legal Basis: 47 U.S.C. 154, 301, 302, involuntarily, discontinues operations. Act of 1934, as amended, authorizing 303, 307, 309, 332, 336 and 337. Legal Basis: 47 U.S.C. 154, 301, 302, the Commission to employ competitive Section Number and Title: 303, 307, 309, 332, 336 and 337. bidding procedures to resolve mutually 27.5(b)—Frequencies. Section Number and Title: exclusive applications for initial 27.6(b)—Service areas. 27.53(c), (d), (e)—Emission limits. licenses. 27.60—TV/DTV interference Need: These rules are needed to set Subpart B—Applications and Licenses protection criteria. forth licensing requirements and to Brief Description: Part 27 contains the 27.66—Discontinuance, reduction, or implement the Commission’s Commission rules relating to impairment of service.

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Subpart F—Competitive Bidding Part 51—Interconnection promote the deployment of broadband Procedures for the 698–806 MHz Band infrastructure and other network Subpart C—Obligations of All Local investment. These rules also ensure that Brief Description: Part 27 contains the Exchange Carriers Commission rules relating to competitors receive prompt and Brief Description: This subsection miscellaneous wireless communications accurate notice of changes that could generally implements section 251(c) of affect their ability to interconnect with services (WCS), specifically, the the Communications Act of 1934, as conditions under which spectrum is the incumbent’s network. amended. Section 51.230 provides that Legal Basis: 47 U.S.C. 251(a), 251(c)(2) made available and licensed for the advanced services loop technologies are provision of wireless communications and (6) and 251(d). presumed acceptable for deployment Section Number and Title: services in the 2305–2320 MHz and under specific circumstances. It further 51.231—Provision of information on 2345–2360 MHz; 746–763 MHz, 775– provides that incumbent local exchange advanced services deployment. 793 MHz, and 805–806 MHz; 698–746 carriers cannot deny a carrier’s request Brief Description: This subsection MHz; (4) 1390–1392 MHz; 1392–1395 to deploy a technology that is presumed generally implements section 251(c) of MHz and 1432–1435 MHz; 1670–1675 acceptable for deployment without first the Communications Act of 1934, as MHz; 1710–1755 MHz and 2110–2155 demonstrating to the relevant state amended. Section 51.232 prohibits MHz; and 2495–2690 MHz bands. commission that deployment of that incumbent local exchange carriers from Subpart F sets forth the rules by which technology would significantly degrade designating, segregating or reserving mutually exclusive applications in the performance of other advanced services particular loops or binder groups for use 698–806 MHz band will be considered. or traditional voiceband services. solely by any particular advanced Need: These rules implement the Finally, a carrier seeking to establish services loop technology, except for Commission’s competitive bidding that the deployment of a specific loops on which a known disturber is authority under 47 U.S.C. 309(j) for technology falls within the presumption deployed. The rule also specifies that initial applications in the 698–806 MHz of acceptability bears the burden of any party seeking designation as a bands. demonstrating to the relevant state known disturber should file a petition Legal Basis: 47 U.S.C. 154, 301, 302, commission that its proposed for declaratory ruling with the 303, 307, 309, 332, 336 and 337. Section Number and Title: deployment meets the threshold for a Commission. 27.501—746–763 MHz, 775–793 MHz, presumption of acceptability and will Need: These rules are necessary to and 805–806 MHz bands subject to not, in fact, significantly degrade foster a competitive market in the competitive bidding. performance of other advanced services telecommunications industry, and to 27.502—Designated entities. or traditional voice band services. promote the deployment of broadband Need: These rules are necessary to infrastructure and other network Subpart G—Guard Band A and B Blocks foster a competitive market in the investment. These rules also ensure that (757–758/787–788 MHz and 775–776/ telecommunications industry, and to competitors receive prompt and 805–806 MHz Bands) promote the deployment of broadband accurate notice of changes that could Brief Description: Part 27 contains the infrastructure and other network affect their ability to interconnect with Commission rules relating to investment. These rules also ensure that the incumbent’s network. miscellaneous wireless communications competitors receive prompt and Legal Basis: 47 U.S.C. 251(a), 251(c)(2) services (WCS), specifically, the accurate notice of changes that could and (6) and 251(d). conditions under which spectrum is affect their ability to interconnect with Section Number and Title: made available and licensed for the the incumbent’s network. 51.232—Binder group management. Brief Description: This subsection provision of wireless communications Legal Basis: 47 U.S.C. 251(a), 251(c)(2) generally implements section 251(c) of services in the 2305–2320 MHz and and (6) and 251(d). the Communications Act of 1934, as 2345–2360 MHz; 746–763 MHz, 775– Section Number and Title: amended. Section 51.233 sets forth the 793 MHz, and 805–806 MHz; 698–746 51.230—Presumption of acceptability steps that must be taken by a carrier MHz; (4) 1390–1392 MHz; 1392–1395 for deployment of an advanced services claiming that a deployed advanced MHz and 1432–1435 MHz; 1670–1675 loop technology. Brief Description: This subsection service is significantly degrading the MHz; 1710–1755 MHz and 2110–2155 generally implements section 251(c) of performance of other advanced services, MHz; and 2495–2690 MHz bands. the Communications Act of 1934, as including notifying the deploying Subpart G sets forth the rules under amended. Section 51.231 provides that carrier and allowing that carrier a which guard band A and B block incumbent local exchange carriers must reasonable opportunity to correct the licensees may operate. Need: These rules establish the provide particular information to problem. The rule provides that, where procedural parameters under which a carriers requesting access to a loop or a carrier demonstrates that a deployed guard band A and B block licensee may high-frequency portion of the loop to technology is significantly degrading the receive an authorization and operate, provide advanced services. The performance of other advanced services including the requirements should such requesting carrier must provide to the or traditional voice-band services, the a licensee lease a portion of its incumbent LEC information on the type deploying carrier must discontinue spectrum. of technology the carrier seeks to deployment of that technology and Legal Basis: 47 U.S.C. 154, 301, 302, deploy, both at the time it seeks access migrate its customers to technologies 303, 307, 309, 332, 336 and 337. to a loop or high frequency portion of that will not significantly degrade the Section Number and Title: a loop to provide advanced services and performance of other such services. The 27.601—Authority and coordination when notifying the incumbent LEC of rule further specifies that, if the asserted requirements. any proposed change in the advanced degradation goes unresolved, the carrier 27.602—Lease agreements. services technology that the carrier uses whose services are being degraded must 27.604—Limitation on licenses won at on the loop. make a showing of degradation before auction. Need: These rules are necessary to the relevant state commission. 27.607—Performance requirements foster a competitive market in the Need: These rules are necessary to and annual reporting requirement. telecommunications industry, and to foster a competitive market in the

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telecommunications industry, and to Need: These rules are necessary to block number pooling framework promote the deployment of broadband ensure that the incumbent LECs and established by the Commission. The infrastructure and other network their competitors understand the scope rule requires that all carriers required to investment. These rules also ensure that of the incumbent LECs resale participate in thousands-block number competitors receive prompt and obligations under section 251(b)(5). pooling must donate thousands-blocks accurate notice of changes that could Legal Basis: 47 U.S.C. 251(b)(5). with less than ten percent affect their ability to interconnect with Section Number and Title: contamination to the thousands-block the incumbent’s network. 51.605(c) through (e)—Additional number pool for the rate center within Legal Basis: 47 U.S.C. 251(a), 251(c)(2) obligations of incumbent local exchange which the numbering resources are and (6) and 251(d). carriers. assigned. However, the rule permits those service providers to maintain at Section Number and Title: Part 52—Numbering 51.233—Significant degradation of least one thousands-block per rate services caused by deployment of Subpart A—Scope and Authority center, even if less than ten percent advanced services. Brief Description: Section 52.5(i) sets contaminated, as an initial block or forth the definition of ‘‘service footprint block. Telephone numbers Subpart D—Additional Obligations of assigned to customers of service Incumbents Local Exchange Carriers provider’’ as used in the Commission’s rules governing numbering. providers from donated thousands- Brief Description: This subsection Need: This rule is necessary to allow blocks that are contaminated will be implements section 251(c) of the the Commission to monitor closely the ported back to the donating service Communications Act of 1934, as way numbering resources are used provider. Finally, the rule provides for amended. Section 51.323(l) sets forth within the North American Numbering a Thousands-Block Pooling deadlines within which an incumbent Plan (‘‘NANP’’). Administrator. LEC must offer to provide, and provide, Legal Basis: 47 U.S.C. 201–205 and Need: This rule is necessary to all forms of physical collocation, except 251. address and resolve one of the major in circumstances where a state sets its Section Number and Title: factors that contributes to numbering own deadlines or the incumbent LEC 52.5(i)—Definitions. resource exhaust: The allocation of has demonstrated to the state numbers in blocks of 10,000, commission that physical collocation is Subpart B—Administration irrespective of the carrier’s actual need not practical for technical reasons or Brief Description: Section 52.7(g) for new numbers. because of space limitations. through (j) sets forth definitions of terms Legal Basis: 47 U.S.C. 201–205 and Need: These rules are necessary to used in the Commission’s rules 251. foster a competitive market in the governing thousands-block pooling. Section Number and Title: telecommunications industry, and to Need: This rule is necessary to allow 52.20—Thousands-block number promote the deployment of broadband the Commission to monitor closely the pooling. infrastructure and other network way numbering resources are used Part 54—Universal Service investment. They help ensure that within the NANP. competitors are able to collocate Legal Basis: 47 U.S.C. 201–205 and Subpart D—Universal Service Support incumbent LEC premises in a timely 251. for High Cost Areas manner, in accordance with section Section Number and Title: Brief Description: These rules specify 251(c)(6) of the Communications Act. 52.7(g) through (j)—Definitions. the requirements for the high-cost Legal Basis: 47 U.S.C. 251(c)(6). Brief Description: Section 52.15(f) support mechanism. These rules Section Number and Title: through (j) sets forth a mandatory data provide requirements for how high-cost 51.323(l)—Standards for physical reporting requirement, a uniform set of support will be calculated and collocation and virtual collocation. categories of numbers for which carriers distributed to eligible must report their utilization, Subpart G—Resale telecommunications providers. requirements for applications for Need: In implementing statutory Brief Description: These subsections numbering resources, a utilization requirements for the high-cost program generally implement section 251(b)(5) of threshold framework to increase carrier of the universal service support the Communications Act of 1934, as accountability and incentives to use mechanism, these rules ensure that rates amended. Sections 51.605(c) through (e) numbers efficiently, and procedures for in rural, insular and high-cost areas are help define which incumbent LEC reclamation of numbering resources. ‘‘reasonably comparable’’ to rates services are subject to the resale Need: This rule is necessary to allow charged for similar services in urban obligations in section 251(b)(5) and the Commission to monitor closely the areas. other Commission rules. These rules way numbering resources are used Legal Basis: 47 U.S.C. 254(b). exempt from the scope of that resale within the NANP. Section Numbers and Title: obligation exchange-access services Legal Basis: 47 U.S.C. 201–205 and 54.311(d)—Interim hold-harmless (except to the extent that they are 251. support for non-rural carriers. advanced telecommunications services Section Number and Title: Subpart E—Universal Service Support that are sold on a retail basis to 52.15(f) through (j)—Central office for Low-Income Consumers residential and business end-users that code administration. are not telecommunications carriers) Brief Description: These rules specify and advanced telecommunications Subpart C—Number Portability the requirements for the support services sold to ISPs as an input Brief Description: Section 52.20 mechanism for low-income consumers. component to the ISPs’ retail Internet specifies that all carriers capable of These rules provide the eligibility service offerings. These rules also providing local number portability must requirements for low-income consumers prohibit the incumbent LEC from participate in thousands-block number receiving discounted rates for services placing restrictions on the resale of such pooling where it is implemented and under the Lifeline and Link-up services in certain circumstances. consistent with the national thousands- programs and the requirements for how

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reimbursements for low-income support unreasonably discriminatory. These Section Number and Title: will be calculated and distributed to rules govern the filing, form, content, 64.402—Policies and procedures for eligible telecommunications providers. public-notice periods, and the provision of priority access service Need: In implementing statutory accompanying support materials for by commercial mobile radio service requirements for the low-income tariffs. Section 61.3 sets out definitions providers. program of the universal service support for terms used in this Part. Part 68—Connection of Terminal mechanism, these rules ensure that low- Need: Sections 61.3 (qq) through (zz) Equipment to the Telephone Network income consumers, including eligible were adopted to define terms used residents of Tribal lands, have access to elsewhere in the Commission’s tariff Subpart C—Terminal Equipment quality services at just, reasonable, and regulations applicable to interstate, Approval Procedures affordable rates. domestic, interexchange services. Brief Description: Part 68, Subpart C, Legal Basis: 47 U.S.C. 151, 154(i), 201, Legal Basis: 47 U.S.C. 151, 154(i), sets forth the rules under which 205 and 254(b). 154(j), 201–205 and 403. terminal equipment is approved and Section Numbers and Titles: Section Number and Title: associated inside (or ‘‘premises’’) wiring 54.400(e)—Terms and definitions. 61.3(qq) through (zz)—Definitions. may be connected to the public 54.403(a)(4)—Lifeline support Subpart E—General Rules for Dominant telephone network. Section 68.213, in amount. Carriers particular, establishes rules for 54.409(c)—Consumer qualification for ‘‘unprotected’’ premises wiring in Lifeline. Brief Description: The Part 61 rules simple installations of up to four-line 54.411(d)—Link-Up program defined. are designed to implement the telephone service. The rules authorize provisions of sections 201, 202, 203, and premises owners or customers to install Subpart J—Interstate Access Universal 204 of the Communications Act of 1934, Service Support Mechanism and/or maintain wiring on the customer as amended, and help ensure that rates side of the demarcation point, provided Brief Description: These rules provide are just, reasonable, and not unjustly or that conditions set forth in the rules are requirements for the calculation and unreasonably discriminatory. These met. The rules also establish material distribution of support to price-cap rules govern the filing, form, content, requirements for wire and connectors carriers as implicit universal service public notice periods, and used in such installations, including subsidies are removed from their accompanying support materials for electrical and labeling requirements. interstate-access rates. tariffs. Section 61.42 identifies which Need: These rules provide uniform Need: In implementing the statutory services carriers are to include in their standards to protect the public requirements, these rules ensure that the price cap baskets. These price-cap telephone network from harms caused universal service interstate-access baskets are then used, among other by terminal equipment and the support mechanism is specific, things, in determining price-cap indices associated wiring thereto, and ensure predictable and sufficient as it moves and price cap regulation generally. that consumer utility of traditional from implicit to explicit subsidies. Need: Section 61.42(e)(3) was adopted voiceband and advanced services will Legal Basis: 47 U.S.C. 151, 154(i), to specify to carriers what service not be hampered by poor quality inside 154(j), 201–209, 218–222, 254 and 403. categories and subcategories they must wiring, while enabling terminal Section Numbers and Titles: include in their Actual Price Index (API) equipment and premises wiring to be 54.800—Terms and definitions. for the special access services basket. provided competitively. 54.801—General. The API is used in connection with any Legal Basis: 47 U.S.C. 151, 154(i), 54.802—Obligations of local exchange price-cap tariff filing proposing rate 151(j), 161, 201–205 and 218, 220, 256, carriers and the Administrator. changes. 405, and 5 U.S.C. sections 552 and 553. 54.803—Universal service zones. Legal Basis: 47 U.S.C. 151, 154(i), Section Number and Title: 54.804—Preliminary minimum access 154(j), 201–205 and 403. 68.213(c)—Installation of other than universal service support for a study Section Number and Title: ‘‘fully protected’’ non-system simple area calculated by the Administrator. 61.42(e)(3)—Price cap baskets and customer premises wiring. 54.805—Zone and study area above service categories. benchmark revenues calculated by the Part 69—Access Charges Part 64—Miscellaneous Rules Relating Administrator. to Common Carriers Subpart C—Computation of Charges for 54.806—Calculation by the Price Cap Local Exchange Carriers Administrator of interstate access Subpart D—Procedures for Handling Brief Description: The Part 69 rules universal service support for areas Priority Services in Emergencies are designed to implement the served by price cap local exchange Brief Description: Section 64.402 provisions of sections 201 and 202 of carriers. specifies that commercial mobile radio the Communications Act of 1934, as 54.807—Interstate access universal service providers that elect to provide amended, and protect consumers by service support. priority access service to National preventing the exercise of market power 54.808—Transition provisions and Security and Emergency Preparedness by incumbent LECs. These rules help periodic calculation. personnel must adhere to uniform ensure that rates are just, reasonable, 54.809—Carrier certification. operating protocols. and not unjustly or unreasonably Part 61—Tariffs Need: These provisions are necessary discriminatory. Specifically, § 69.158 to implement the Commission’s facilitates the phase out of implicit Subpart A—General responsibility to provide, in the most subsidies in the access charge regime by Brief Description: The Part 61 rules efficient manner, access to making the recovery of LEC universal are designed to implement the communications infrastructures in order service charges from end users explicit. provisions of sections 201, 202, 203, and to respond effectively to emergency and Need: Section 69.158 allows for the 204 of the Communications Act of 1934, disaster situations. LECs’ recovery of charges for an as amended, and help ensure that rates Legal Basis: 47 U.S.C. 202, 205, 302 explicit, portable interstate access are just, reasonable, and not unjustly or and 303. universal service support mechanism.

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Legal Basis: 47 U.S.C. 154, 201–203, noncommercial educational full-power have a measure of protection from full- 205, 218, 220, 254 and 403. stations from the operations of LPFM service DTV television stations. Section Number and Title: stations. Legal Basis: 47 U.S.C. 154, 303, 334 69.15—Universal service end user Need: This rule clarifies the structure and 336. charges. of the FM interference protection Section Number and Title: scheme. 73.623(c)(5), (d) and (e)—DTV Part 73—Radio Broadcast Services Legal Basis: 47 U.S.C. 154 and 303. applications and changes to DTV Subpart B—FM Broadcast Stations Section Number and Title: allotments. 73.514—Protection from interference. Brief Description: This rule identifies Brief Description: This rule sets forth Subpart G—Low Power FM Broadcast Part G as the part of the rules which community of license signal coverage Stations (LPFM) establish protection standards for full- requirements for noncommercial Brief Description: This rule sets forth power stations from the operations of educational FM stations. complaint and license modification LPFM stations. Need: This rule is necessary to ensure procedures for LPFM stations causing Need: This rule clarifies the structure that every noncommercial educational interference to full-power stations of the FM interference protection station provides an adequate strength operating on third adjacent channels. scheme. signal to its community of license. Need: The Local Community Radio Legal Basis: 47 U.S.C. 154 and 303. Legal Basis: 47 U.S.C. 154, 303 and Act, enacted on January 4, 2011, Section Number and Title: 307. requires the Commission to modify its 73.209(c)—Protection from Section Number and Title: rules to eliminate third-adjacent interference. 73.515—NCE FM transmitter location. minimum distance separation Brief Description: This rule sets forth requirements between LPFM stations a transition rule for stations previously Subpart E—Television Broadcast Stations and FM, FM translator, and FM booster licensed under more permissive Class C stations. The Commission will initiate a antenna height and power requirements. Brief Description: This rule provides rulemaking in 2011 to conform this rule Need: This rule is needed to provide the criteria that an applicant for a new to the new legislation. a basis for a certain class of stations to full power television station or Legal Basis: 47 U.S.C. 154, 303 and retain their rights as Class C stations. modification to existing full power 316. Legal Basis: 47 U.S.C. 154 and 303. television station must meet in order to Section Number and Title: Section Number and Title: protect a Class A television station. 73.810—Third adjacent channel 73.211(d)—Power and antenna height Need: Protection criteria is necessary complaint and license modification requirements. to protect the operations of Class A procedure. Subpart D—Noncommercial television stations and to ensure that Brief Description: This rule sets forth Educational FM Broadcast Stations new or modified full power television complaint procedures in circumstances station operate without creating harmful in which an LPFM station causes Brief Description: This rule identifies interference. interference to the input signal of an FM Part K as the part of the rules which set Legal Basis: 47 U.S.C. 154, 303, 334 translator or FM booster station. forth the procedures for choosing among and 336. Need: The Local Community Radio mutually exclusive applications for Section Number and Title: Act changed the distance separation noncommercial educational FM 73.613—Protection of Class A TV requirements between LPFM stations stations. stations. and FM translators and FM booster Need: This rule clarifies the structure Brief Description: This rule specifies stations. The Commission will initiate a of the noncommercial educational FM that mutually exclusive applications for rulemaking in 2011 to conform these licensing rules. noncommercial educational TV stations complaint procedures to the new Legal Basis: 47 U.S.C. 154 and 303. operating on reserved channels shall be legislation. Section Number and Title: resolved pursuant to the point system. Legal Basis: 47 U.S.C. 154, 303 and 73.503(e)—Licensing requirements Need: The point system is needed to 316. and service. continue to foster the growth of Section Number and Title: Brief Description: This rule identifies noncommercial broadcasting. The point 73.827—Interference to the input Part I as the part of the rules which set system clearly expresses the public signals of FM translator or FM booster forth the procedures for choosing among interest factors that the Commission stations. mutually exclusive applications in finds important in noncommercial circumstances in which at least one educational broadcasters and selects the Subpart H—Rules Applicable to All commercial FM application is mutually applicant who best exemplifies those Broadcast Stations exclusive with at least one criteria in an objective manner. Brief Description: This rule requires noncommercial educational FM Legal Basis: 47 U.S.C. 154, 303, 334 each broadcast station to maintain a application. and 336. local or toll-free telephone number in its Need: This rule clarifies the structure Section Number and Title: community of license. of the commercial and noncommercial 73.621(h)—Noncommercial Need: This rule is necessary to educational FM licensing rules. educational TV stations. promote the localism goals on which the Legal Basis: 47 U.S.C. 154, 303 and Brief Description: This rule specifies main studio rule is based. 309. that DTV station applications proposing Legal Basis: 47 U.S.C. 154, 303 and Section Number and Title: to expand the DTV station’s authorized 307. 73.513(b)—Noncommercial service area must not cause interference Section Number and Title: educational FM stations operating on to a Class A TV station or a digital Class 73.1125(e)—Station main studio unreserved channels. A TV Station. location. Brief Description: This rule identifies Need: This rule is required because Brief Description: This rule identifies Part G as the part of the rules which Class A licensees have ‘‘primary’’ status part K as the part of the rules which sets establish protection standards for as television broadcasters; thereby they forth restrictions on the assignment or

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transfer of licenses awarded pursuant to an application for license by a station in Legal Basis: 47 U.S.C. 336(f). noncommercial educational the Class A Television Service and the Section Number and Title: comparative procedures. procedures for commenting on such 73.6002—Licensing requirements. Need: This rule is unnecessary. The application. Brief Description: This rule provides applicability of the part K rules and Legal Basis: 47 U.S.C. 336(f). the channels that are not available to their requirements are clearly set forth Section Number and Title: applicants for Class A television therein. 73.3580(d)(5)—Local public notice of stations. Legal Basis: 47 U.S.C. 154, 303 and filing of broadcast applications. Need: A list of channels that are not 309. Brief Description: This rule sets forth available for Class A television stations Section Number and Title: the procedures for filing petitions to is necessary so that applicants in this 73.1150(d)—Transferring a station. deny requests for the involuntary service may decide the best operational Brief Description: This rule provides downgrading of Class C FM stations to channel for their new facility. the maximum level that may be Class C0. Legal Basis: 47 U.S.C. 336(f). exceeded by the carrier frequency of a Need: This rule is necessary to clarify Section Number and Title: station in the Class A Television the pleading procedures that apply in 73.6006—Channel assignments. Service. circumstances in which an application Brief Description: This rule provides Need: This rule is necessary so that is filed which is mutually exclusive the power limitations for applicants parties seeking to construct stations in with an authorized Class C station seeking Class A television stations. the Class A Television Service may operating at less than full Class C Need: This rule is necessary so that specify their proposed facilities and the antenna height and/or power minimum applicants for Class A television stations Commission staff review such facilities requirements. don’t specify too great an operational before granting a construction permit. Legal Basis: 47 U.S.C. 154 and 303. power and so applicants may decide the Legal Basis: 47 U.S.C. 336(f). Section Number and Title: best operational parameters for their Section Number and Title: 73.3584(d)—Procedure for filing new facility. 73.1545(e)—Carrier frequency petitions to deny. Legal Basis: 47 U.S.C. 336(f). departure tolerances. Subpart J—Class A Television Broadcast Section Number and Title: Brief Description: This rule sets forth Stations 73.6007—Power limitations. the procedures for LPFM stations to Brief Description: This rule provides operate pursuant to program test Brief Description: This rule provides the method for applicants seeking Class authority. the definitions that will be used A television stations to make distance Need: This rule is necessary to permit throughout subpart J of 47 CFR part 73. computations between two reference Need: Certain terms need to be the prompt initiation of authorized new points. defined so as to make clear their usage service from LPFM stations. Need: This rule is necessary so that in subpart J of 47 CFR Part 73 and to Legal Basis: 47 U.S.C. 154 and 303. applicants for Class A television stations avoid having to restate their definition Section Number and Title: are able to correctly calculate the 73.1620(a)(5)—Program tests. each time they are used. distance between two reference points Brief Description: This rule sets forth Legal Basis: 47 U.S.C. 336(f). in their applications and to properly the minimum number of hours that Section Number and Title: configure the operational parameters for stations in the Class A Television 73.6000—Definitions. their new facility. Service must operate each week. Brief Description: This rule provides Need: This rule is necessary so that the procedures that applicants seeking Legal Basis: 47 U.S.C. 336(f). Section Number and Title: stations in the Class A Television new facilities in the Class A Television 73.6008—Distance computations. Service continue to fully utilize their Service must follow to obtain a Brief Description: This rule outlines assigned channel and to serve the public construction permit for such facilities the operational area of a Class A interest. and the required types of service they Legal Basis: 47 U.S.C. 336(f). must provide in order to retain their television station that must be protected Section Number and Title: Class A status. from harmful interference by other 73.1740(a)(5)—Minimum operating Need: These procedures and policies broadcast stations. schedule. are necessary in order that applicants Need: This rule is necessary so that Brief Description: This rule provides for new Class A Television Service may applicants for broadcast facilities will that stations in the Class A Television specify their proposed facilities and the know that operational area or ‘‘contour’’ Service must maintain documentation Commission staff review such facilities of a Class A television station that must in their local public inspection file as to before granting a construction permit. be protected from harmful interference their Class A TV continuing eligibility. Legal Basis: 47 U.S.C. 336(f). so that such applicants are able to Need: This rule is necessary so that Section Number and Title: properly configure the operational stations are able to demonstrate that 73.6001—Eligibility and service parameters for their new facility. they continue to be eligible for Class A requirements. Legal Basis: 47 U.S.C. 336(f). TV status and so that the public and Brief Description: This rule provides Section Number and Title: Commission staff can verify their the requirements that applicants seeking 73.6010—Class A TV station claimed eligibility. new facilities in the Class A Television protected contour. Legal Basis: 47 U.S.C. 336(f). Service must meet in order to obtain a Brief Description: This rule outlines Section Number and Title: station in this service. those full power television stations that 73.3526(e)(17)—Local public Need: It is necessary to set out the Class A television stations must protect inspection file of commercial stations. qualifications for Class A television from harmful interference. Brief Description: This rule provides stations so that applicants for these Need: This rule is necessary so that that stations in the Class A Television facilities can make a demonstration of applicants for Class A television stations Service must give notice of the filing of eligibility in their applications and will be able to determine which full an application for license. Commission staff can review their power television stations they must Need: This rule is necessary so that qualifications prior to granting a protect from harmful interference so the public is made aware of the filing of construction permit. that such applicants are able to properly

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configure the operational parameters of stations they must protect from harmful translator, digital low power TV and their new facility. interference so that such applicants are digital TV translator stations. Legal Basis: 47 U.S.C. 336(f). able to properly configure the Brief Description: This rule outlines Section Number and Title: operational parameters of their new those stations in the land mobile radio 73.6011—Protection of TV broadcast facility. service that a digital Class A television stations. Legal Basis: 47 U.S.C. 336(f). station seeking to modify its facilities Brief Description: This rule outlines Section Number and Title: must protect from harmful interference. those Class A television, low power 73.6016—Digital Class A TV station Need: This rule is necessary so that television and TV translator stations protection of TV broadcast stations. applicants for modification to a digital that a Class A television station seeking Brief Description: This rule outlines Class A television station will be able to to modify its facilities must protect from those Class A television and digital determine which stations in the land harmful interference. Class A television stations that a digital mobile radio service they must protect Need: This rule is necessary so that Class A television station seeking to from harmful interference so that such applicants for modification to a Class A modify its facilities must protect from applicants are able to properly configure television station will be able to harmful interference. the operational parameters of their new determine which broadcast stations they Need: This rule is necessary so that facility. must protect from harmful interference applicants for modification to a digital Legal Basis: 47 U.S.C. 336(f). so that such applicants are able to Class A television station will be able to Section Number and Title: properly configure the operational determine which Class A and digital 73.6020—Protection of stations in the parameters of their new facility. Class A television stations they must land mobile radio service. Legal Basis: 47 U.S.C. 336(f). protect from harmful interference so Brief Description: This rule provides Section Number and Title: that such applicants are able to properly that Class A television stations may 73.6012—Protection of Class A TV, configure the operational parameters of negotiate interference agreements with low power TV and TV translator their new facility. full power television, digital full power stations. Legal Basis: 47 U.S.C. 336(f). television, low power television, TV Brief Description: This rule outlines Section Number and Title: translator and other Class A television those full power digital television 73.6017—Digital Class A TV station stations. stations that a Class A television station protection of Class A TV and digital Need: This rule is necessary so that seeking to modify its facilities must Class A TV stations. Class A television stations will know protect from harmful interference. Brief Description: This rule outlines the parameters by which they may Need: This rule is necessary so that those full power digital television negotiate interference agreements so applicants for modification to a Class A stations that a digital Class A television that Class A television stations are able television station will be able to station seeking to modify its facilities to properly configure the operational determine which full power digital must protect from harmful interference. parameters of their facilities. television stations they must protect Need: This rule is necessary so that Legal Basis: 47 U.S.C. 336(f). from harmful interference so that such applicants for modification to a digital Section Number and Title: 73.6022—Negotiated interference and applicants are able to properly configure Class A television station will be able to determine which full power digital relocation agreements. the operational parameters of their new Brief Description: This rule provides television stations they must protect facility. that Class A television stations may from harmful interference so that such Legal Basis: 47 U.S.C. 336(f). operate distributed transmission Section Number and Title: applicants are able to properly configure systems. 73.6013—Protection of DTV stations. the operational parameters of their new Need: This rule is necessary so that Brief Description: This rule outlines facility. Class A television stations understand those Class A digital television stations Legal Basis: 47 U.S.C. 336(f). that they may operate distributed that a Class A television station seeking Section Number and Title: transmission systems in order to to modify its facilities must protect from 73.6018—Digital Class A TV station properly configure the operational harmful interference. protection of DTV stations. Brief Description: This rule outlines parameters of their facilities. Need: This rule is necessary so that Legal Basis: 47 U.S.C. 336(f). applicants for modification to a Class A those low power television, TV Section Number and Title: television station will be able to translator, digital low power television 73.6023—Distributed transmission determine which Class A digital and digital TV translator stations that a systems. television stations they must protect digital Class A television station seeking Brief Description: This rule provides from harmful interference so that such to modify its facilities must protect from the transmission standards and system applicants are able to properly configure harmful interference. requirements that Class A television the operational parameters of their new Need: This rule is necessary so that stations must follow. facility. applicants for modification to a digital Need: This rule is necessary so that Legal Basis: 47 U.S.C. 336(f). Class A television station will be able to Class A television stations understand Section Number and Title: determine which low power television, how they may operate their stations in 73.6014—Protection of digital Class A TV translator, digital low power order to properly configure the TV stations. television and digital TV translator operational parameters of their facilities. Brief Description: This rule outlines stations they must protect from harmful Legal Basis: 47 U.S.C. 336(f). those full power television stations that interference so that such applicants are Section Number and Title: a digital Class A television station able to properly configure the 73.6024—Transmission standards and seeking to modify its facilities must operational parameters of their new system requirements. protect from harmful interference. facility. Brief Description: This rule provides Need: This rule is necessary so that Legal Basis: 47 U.S.C. 336(f). the standards that must be followed by applicants for modification to a digital Section Number and Title: Class A television stations when Class A television station will be able to 73.6019—Digital Class A TV station designing their antenna systems and determine which full power television protection of low power TV, TV their locations.

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Need: This rule is necessary so that eligible to hold licenses for aural Part 76—Multichannel Video and Cable Class A television stations understand broadcast auxiliary stations and updates Television Service how to design their antenna systems frequency assignments to reflect the Subpart D—Carriage of Television and where to locate their antennas in reallocation of frequencies in the 18 Broadcast Signals order to properly configure the GHz band to the Fixed Satellite Service operational parameters of their facilities. and the grandfathering of existing Brief Description: These rules specify Legal Basis: 47 U.S.C. 336(f). facilities. the procedures to be used in negotiation Section Number and Title: Legal Basis: 47 U.S.C. 154, 303, 307, of retransmission consent agreements 73.6025—Antenna system and station 336(f), 336(h) and 554. between multichannel video location. Section Number and Title: programmers (MVPDs) and broadcast stations under which the MVPDs are Brief Description: This rule provides 74.502—Frequency assignment. all of the broadcast regulations permitted to transmit the programming 74.532—Licensing requirements. applicable to other stations in the of those broadcast stations. broadcast services that are also 74.551—Equipment changes. Need: The rules require that parties applicable to Class A television stations. Subpart F—Television Broadcast negotiate in good faith and establish Need: This rule is necessary so that Auxiliary Stations time limits for complaints in order to Class A television stations understand ensure that retransmission of broadcast which broadcast regulations they are Brief Description: Subpart F contains programming may be accomplished. required to follow. rules and licensing requirements Legal Basis: 47 U.S.C. 325(b)(3)(C). Legal Basis: 47 U.S.C. 336(f). applicable to Television Broadcast Section Number and Title: Section Number and Title: Auxiliary Stations. 76.65—Good faith and exclusive 73.6026—Broadcast regulations Need: The revised rules make Class A retransmission consent complaints. TV stations eligible to hold licenses for applicable to Class A television stations. Subpart E—Equal Employment Television Broadcast Auxiliary Stations, Brief Description: This rule provides Opportunity Requirements all applicants for new or modified Class required Mobile-Satellite Service (MSS) A television stations must provide licensees in the reallocated 1990–2025 Brief Description: These rules require certain notifications to radio astronomy, MHz and 2165–2200 MHz bands to bear that multichannel video programming research and receiving installations. the cost of relocating Broadcast distributors (MVPDs) provide equal Need: This rule is necessary so that Auxiliary Service licensees in the 1990– opportunity in employment and that applicants for Class A television stations 2110 MHz band, and updates frequency MVPDs analyze on an ongoing basis understand which radio astronomy, assignments to reflect the reallocation of their efforts to recruit, hire, promote and research and receiving installations they frequencies in the 18 GHz band to the use services without discrimination. must notify in order to prevent harmful Fixed Satellite Service and the Need: This requirement helps to interference to such facilities. grandfathering of existing facilities. ensure that MVPDs provide equal Legal Basis: 47 U.S.C. 336(f). Legal Basis: 47 U.S.C. 154, 303, 307, opportunity in employment. Section Number and Title: 336(f), 336(h) and 554. Legal Basis: 47 U.S.C. 554. Section Number and Title: 73.6027—Class A TV notifications Section Number and Title: concerning interference to radio 76.75(g)—Specific EEO program 74.600—Eligibility for license. requirements. astronomy, research and receiving 74.601—Classes of TV broadcast installations. Brief Description: These rules require auxiliary stations. that equal opportunity in employment Part 74—Experimental Radio, 74.602—Frequency assignment. be afforded by multichannel video Auxiliary, Special Broadcast and Other 74.638—Frequency coordination. programming distributors (MVPDs) to Program Distributional Services 74.651—Equipment changes. all qualified persons and no person Subpart D—Remote Pickup Broadcast 74.690—Transition of the 1990–2025 shall be discriminated against in Stations MHz band from the Broadcast Auxiliary employment. The Commission may Service to emerging technologies. issue appropriate sanctions for violation Brief Description: Subpart D contains of EEO rules. rules and licensing requirements Subpart G—Low Power TV, TV Need: Enforcement of the EEO rules is applicable to Remote Pickup Broadcast Translator, and TV Booster Stations required to ensure compliance. Stations. Brief Description: This rule provides Legal Basis: 47 U.S.C. 634. Need: The revised rule makes the criteria that an applicant for a new Section Number and Title: licensees of low power FM stations low power television, TV translator or 76.77(f)—Reporting requirements and eligible to hold licenses for remote TV booster station or modification to enforcement. pickup broadcast stations. same must meet in order to protect a Subpart J—Ownership of Cable Systems Legal Basis: 47 U.S.C. 154, 303, 307, Class A television station. 336(f), 336(h) and 554. Brief Description: These rules Need: Protection criteria is necessary Section Number and Title: establish limits for ownership, control, to protect the operations of Class A 74.432—Licensing requirements and and operation of a cable operator by television stations and to ensure that procedures. another cable operator, and more new or modified low power television, specifically, limits on carriage of Subpart E—Aural Broadcast Auxiliary TV translator and TV booster stations vertically integrated programming and Stations operate without creating harmful related recordkeeping requirements. Brief Description: Subpart E contains interference. Need: Recordkeeping requirements rules and licensing requirements Legal Basis: 47 U.S.C. 154, 303, 334 referenced in this rule are needed to applicable to Aural Broadcast Auxiliary and 336. ensure that cable operators document Stations. Section Number and Title: the nature and extent of their Need: The revised rules make 74.708—Class A TV and digital Class attributable interests in all video licensees of low power FM stations A TV station protection. programming services.

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Legal Basis: 47 U.S.C. 533(f). 312, 315, 317, 325, 503, 521, 522, 531, 76.1704—Proof-of-performance test Section Number and Title: 532, 533, 534, 535, 536, 537, 543, 544, data. 76.504—Limits on carriage of 544a, 545, 548, 549, 552, 554, 556, 558, 76.1705—Performance test (channels vertically integrated programming. 560, 561, 571, 572 and 573. delivered). 76.1706—Signal leakage logs and Subpart K—Technical Standards Section Number and Title: 76.1601—Deletion or repositioning of repair records. Brief Description: Cable operators broadcast signals. 76.1707—Leased access. shall be responsible for ensuring that 76.1602—Customer service—general 76.1708—Principal headend. their systems are designed, installed, information. 76.1709—Availability of signals. and operated in a manner that complies 76.1603—Customer service—rate and 76.1710—Operator interests in video with the technical standards of this service changes. programming. subpart and shall ensure that their 76.1604—Charges for customer 76.1711—Emergency alert system systems are compatible with service changes. (EAS) tests and activation. commercially available consumer 76.1605—New product tier. 76.1712—Open video system (OVS) electronics equipment. 76.1606—Rate change while requests for carriage. Need: These rules are required to complaint pending. 76.1713—Complaint resolution. ensure that cable systems do not 76.1607—Principal headend. 76.1714—FCC rules and regulations. scramble the basic tier of programming 76.1608—System technical 76.1715—Sponsorship identification. service and permit the operation of integration requiring uniform election of 76.1716—Subscriber records and commercially available remote control must-carry or retransmission of consent public inspection file. status. customer premises equipment. Subpart V—Reports and Filings Legal Basis: 47 U.S.C. 549. 76.1609—Non-duplication and Section Number and Title: syndicated exclusivity. Brief Description: These rules require 76.630—Compatibility with consumer 76.1610—Change of operational cable operators to file reports with the electronics equipment. information. Commission on such matters as 76.1611—Political cable rates and registration statements, signal leakage Subpart N—Cable Rate Regulation classes of time. monitoring, annual employment reports, Brief Description: These rules define 76.1612—Personal attack. and alternative rate regulation the obligations of cable operators subject 76.1613—Political editorials. agreements. to rate regulation, in particular the 76.1614—Identification of must-carry Need: These rules are necessary to limits imposed on cable operators’ signals. ensure cable operator compliance with ability to charge subscribers for changes 76.1515—Sponsorship identification. related regulatory requirements. in subscriber services. 76.1616—Contracts with local Legal Basis: 47 U.S.C. 151, 152, 153, Need: The statute requires adoption of exchange carriers. 154, 301, 302, 303, 303a, 307, 308, 309, rate regulations and imposes limits on 76.1617—Initial must-carry notice. 312, 315, 317, 325, 503, 521, 522, 531, charges that cable operators can impose 76.1618—Basic tier availability. 532, 533, 534, 535, 536, 537, 543, 544, on subscribers. 76.1619—Information on subscriber 544a, 545, 548, 549, 552, 554, 556, 558, Legal Basis: 47 U.S.C. 543. bills. 560, 561, 571, 572 and 573. Section Number and Title: 76.1620—Availability of signals. Section Number and Title: 76.980—Charges for customer 76.1621—Equipment compatibility 76.1800—Additional reports and changes. offer. filings. 76.1622—Consumer education Subpart S—Open Video Systems 76.1801—Registration statement. program on compatibility. 76.1802—Annual employment report. Brief Description: These rules provide Subpart U—Documents To Be 76.1803—Signal leakage monitoring. for the certification and programming Maintained for Inspection 76.1804—Aeronautical frequencies: requirements for open video systems, Leakage monitoring (CLI). including recordkeeping requirements. Brief Description: These rules require 76.1805—Alternative rate regulation Need: Maintenance of records cable operators to maintain records on agreements. documenting nondiscrimination is a wide assortment of matters including needed. a political file, EEO, children’s Part 80—Stations in the Maritime Legal Basis: 47 U.S.C. 573. programming, signal leakage, OVS Services Section Number and Title: requests for carriage, performance tests, Subpart B—Applications and Licenses 76.1503(c)(2)(ii)—Carriage of video and subscribers. programming providers on open video Need: These records are needed to Brief Description: Part 80 contains systems. document compliance with various rules relating to stations in the maritime regulatory requirements. services. Subpart B set forth rules Subpart T—Notices Legal Basis: 47 U.S.C. 151, 152, 153, regarding applications and licenses in Brief Description: These rules require 154, 301, 302, 303, 303a, 307, 308, 309, those services. cable operators to provide notice to 312, 315, 317, 325, 503, 521, 522, 531, Need: This rule notifies each subscribers on a wide assortment of 532, 533, 534, 535, 536, 537, 543, 544, Automated Maritime requirements set out in other sections of 544a, 545, 548, 549, 552, 554, 556, 558, Telecommunications System (AMTS) the part 76. 560, 561, 571, 572 and 573. coast station geographic area licensee Need: Time periods are established Section Number and Title: that it must make a showing of for cable operator responses to 76.1700—Records to be maintained by substantial service within its service subscribers, franchise authorities, the cable system operators. area within ten years of the initial Commission, and other entities to 76.1701—Political file. license grant, or the authorization ensure compliance with cable operator 76.1702—Equal employment becomes invalid and must be returned obligations. opportunity. to the Commission for cancellation. Legal Basis: 47 U.S.C. 151, 152, 153, 76.1703—Commercial records on Legal Basis: 47 U.S.C. 154, 303, 154, 301, 302, 303, 303a, 307, 308, 309, children’s programs. 307(e), 309, and 332; 47 U.S.C. 151–155,

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301–609; 3 U.S.T. 3450, 3 U.S.T. 4726 Need: This rules explains the Subpart R—Regulations Governing the and 12 U.S.T. 2377. assignment limitations of the Industrial/ Licensing and Use of Frequencies in the Section Number and Title: Business Pool Frequency Table, 47 CFR 763–775 and 793–805 MHz Bands 80.49(a)(3)—Construction and 90.35(b)(3), specifically, that after Brief Description: Subpart R sets forth regional service requirements. January 1, 2005, all stations operating the rules governing the licensing and with an authorized bandwidth greater Subpart J—Public Coast Stations operations of all systems operating in than 11.25 kHz will be secondary to the 763–775 MHz and 793–805 MHz Brief Description: Part 80 contains adjacent channel public safety frequency bands. The 769–775/799–805 rules relating to stations in the maritime interoperability operations. MHz segment is allocated for services. Subpart J, as it relates to Legal Basis: 47 U.S.C. 154(i), 161, narrowband operations. In the Automated Maritime 303(g), 303(r) and 332(c)(7). narrowband segment, these rules allow Telecommunications System (AMTS) Section Number and Title: the licensing of the 700 MHz General licensees, sets forth rules on the scope Use Narrowband Channels for of service, points of communication, 90.35(c)(82)—Industrial/Business pool. assignment to public safety eligibles, frequency use and assignment, and subject to Commission approved various technical matters. Subpart H—Policies Governing the regional planning committee (RPC) Need: These rules are meant to Assignment of Frequencies regional plans. The Narrowband State prevent harmful interference between Brief Description: These rules Channels are directly licensed to each an AMTS licensee and broadcasters of state (including U.S. territories, promote efficient spectrum use and television channels 13 and 10; they also districts, and possessions) and are nationwide interoperability. First, permit AMTS licensees to use coast and subject to certain licensing conditions. applications for 700 MHz narrowband ship frequencies on a secondary basis to The Narrowband Low Power Itinerant low power itinerant use channels are support AMTS deployment in remote Channels are licensed for nationwide exempt from frequency coordination. fixed locations where other itinerant operation and are not subject Second, these rules authorize public communications facilities are not to regional planning or frequency safety licensees to share their facilities available; and give AMTS licensees the coordination. These rules also specify on a non-profit cost-shared basis with ability to use any modulation or transmitter power and emission limits Federal Government entities as well as channelization scheme, as long as that to avoid interference and promote scheme complies with Section 80.211 at permit Industrial Business Pool efficient spectrum use. the band edges. licensees to share their facilities with Need: In implementing the goal of Legal Basis: 47 U.S.C. 154, 303, Public Safety Pool entities and Federal nationwide interoperability, these rules 307(e), 309, and 332; 47 U.S.C. 151–155, Government entities. designate public safety spectrum for day 301–609; 3 U.S.T. 3450, 3 U.S.T. 4726 Need: In implementing the goals of to day operational needs as well as and 12 U.S.T. 2377. efficient spectrum use and nationwide nationwide voice interoperability, while Section Number and Title: interoperability, these rules eliminate providing technical requirements to 80.475(b)—Scope of service of the regulatory burdens on public safety avoid interference and increase Automated Maritime entities. spectrum efficiency. Telecommunications System (AMTS). Legal Basis: 47 U.S.C. 154(i), 161, Legal Basis: 47 U.S.C. 154(i), 161, 80.477(d)—AMTS points of 303(g), 303(r) and 332(c)(7). 303(g), 303(r) and 332(c)(7). communication. Section Number and Title: Section Numbers and Title: 90.529—State license. 80.481—Alternative technical 90.175(j)(15)—Frequency coordinator parameters for AMTS transmitters. 90.531(b)(4) through (b)(6)—Band requirements. plan. Part 90—Private Land Mobile Radio 90.179(g) and (h)—Shared use of radio 90.541(d)—Transmitting power limits. Services stations. 90.543(f) and (g)—Emission limits. Subpart B—Public Safety Radio Pool Subpart I—General Technical Subpart S—Regulations Governing Brief Description: These rules contain Standards Licensing and Use of Frequencies in the limitations on the assignment of 806–824, 851–869, 896–901, and 935– Brief Description: Part 90 contains the 940 MHz Bands channels in the Public Safety Radio Commission rules governing private Pool. land mobile radio (PLMR) services. Brief Description: Part 90 contains the Need: In implementing the goal of Subpart I sets forth the various technical Commission rules governing private efficient spectrum use, these rules list standards with which a PLMR licensee land mobile radio services. Subpart S technical and geographic limitations must comply, including standards for sets forth the rules governing the applicable to each frequency in the acceptability of equipment, frequency licensing and operations of all systems Public Safety Radio Pool. tolerance, modulation, emissions, operating in the 806–824/851–869 MHz Legal Basis: 47 U.S.C. 154, 161, 303 power, and bandwidths. and 896–901/935–940 MHz bands, and 332. Need: This rule requires that mobile including eligibility requirements, and Section Number and Title: and portable voice-transmitting operational and technical standards for 90.20(d)(80) through (d)(83); equipment operating on 150–174 MHz stations licensed in these bands. Need: These rules state that local 90.20(g)—Public safety pool. and 450–470 MHz bands be capable of governments applying for Public Safety operating on the corresponding Subpart C—Industrial/Business Radio Pool frequencies are bound by all nationwide public safety Pool applicable rules, and that CMRS interoperability calling channel. Brief Description: Part 90 contains the licensees that are operating in these Commission rules governing private Legal Basis: 47 U.S.C. 154(i), 161, bands are subject only to the station land mobile radio services. Subpart C 303(g), 303(r) and 332(c)(7). identification requirements of sets forth the rules relating to the Section Number and Title: § 90.425(e), and not § 90.647(a) through industrial/business radio pool. 90.203(j)(1)—Certification required. (c).

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Legal Basis: 47 U.S.C. 154(i), 161, rules governing the Wireless Medical Commission’s scope and authority and 303(g), 303(r) and 332(c)(7). Telemetry Service (WMTS), which is definitions. Section Number and Title: defined as a private, short distance data Need: The revised rules established 90.629(f)—Extended implementation communication service for the definitions relevant to the 24 GHz period. transmission of patient medical service and Multiple Address Systems. 90.647(d)—Station identification. information to a central monitoring Legal Basis: 47 U.S.C. 154 and 303. location in a hospital or other medical Section Number and Title: Part 95—Personal Radio Services facility. 101.1—Scope and authority. Subpart D—Citizens Band (CB) Radio Need: This subpart sets out the 101.3—Definitions. Service regulations governing the operation of Subpart B—Applications and Licenses Wireless Medical Telemetry Devices in Brief Description: Part 95 contains the the 608–614 MHz, 1395–1400 MHz, and Brief Description: Subpart B sets forth Commission rules relating to personal 1427–1432 MHz frequency bands. the general filing requirements for radio services. Subpart D sets forth the Legal Basis: 47 U.S.C. 154 and 303. applications and licenses in the Fixed rules governing the various citizens Section Number and Title: Microwave Services. band services, including the Citizens 95.1101—Scope. Need: The revised rules modified the Band (CB) Radio Service; Family Radio 95.1103—Definitions. buildout requirements for the 38.6–40.0 Service (FRS); Low Power Radio Service 95.1105—Eligibility. GHz band, revised the rules relating to (LPRS); Medical Device 95.1107—Authorized locations. the 24 GHz service, updates frequency Radiocommunication Service 95.1109—Equipment authorization assignments to reflect the reallocation of (MedRadio); Wireless Medical requirement. frequencies in the 18 GHz band to the Telemetry Service (WMTS); Multi-Use 95.1111—Frequency coordination. Fixed Satellite Service and the Radio Service (MURS); and Dedicated 95.1113—Frequency coordinator. grandfathering of existing facilities, Short-Range Communications Service 95.1115—General technical requires Mobile Satellite Service On-Board Units (DSRCS–OBUs). requirements. licensees to relocate existing Fixed Need: The rule defines WMTS as a 95.1117—Types of communications. Service licensees in the 2165–2200 MHz private, short distance data 95.1119—Specific requirements for bands in cases where sharing between communication service for the wireless medical telemetry devices MSS and FS is not possible, and made transmission of patient medical operating in the 608–614 MHz band. various editorial changes to the Part 101 95.1121—Specific requirements for information to a central monitoring rules. wireless medical telemetry devices location in a hospital or other medical Legal Basis: 47 U.S.C. 154 and 303. operating in the 1395–1400 MHz and facility, and lists certain conditions Section Number and Title: 1427–1432 MHz bands. 101.4—Transition plan. under which WMTS may, and may not, 95.1123—Protection of medical operate. 101.17—Performance requirements equipment. for the 38.6–40.0 GHz frequency band. Legal Basis: 47 U.S.C. 154 and 303. 95.1125—RF safety. Section Number and Title: 101.21—Technical content of 95.1127—Station identification. applications. 95.401(e)—(CB Rule 1) What are the 95.1129—Station inspection. Citizens Band Radio Services? 101.31—Temporary and conditional Subpart J—Multi-Use Radio Service authorizations. Subpart E—Technical Regulations (MURS) 101.45—Mutually exclusive Brief Description: Part 95 contains the applications. Brief Description: Part 95 contains the 101.55—Considerations involving Commission rules relating to personal Commission rules relating to personal transfer or assignment applications. radio services. Subpart E sets forth the radio services. Subpart J sets forth the 101.61—Certain modifications not technical standards under which part 95 rules governing the Multi-Use Radio requiring prior authorization in the licensees may operate. Service (MURS), which is defined as a Local Multipoint Distribution Service Need: These rules clarify that a private, two-way, short-distance voice and 24 GHz Service. Wireless Medical Telemetry Service or data communications service for 101.63—Period of construction; (WMTS) licensee may transmit any personal or business activities of the certification of completion of emission type appropriate for general public. construction. communications in this service, except Need: This subpart sets out technical 101.69—Transition of the 1850–1990 for video and voice; and set forth other and other rules regarding the Multi-Use MHz, 2110–2150 MHz, and 2160–2200 technical standards by which WMTS Radio Service (MURS), which is defined MHz bands from the fixed microwave and Multi-Use Radio Service (MURS) as a private, two-way, short-distance services to personal communications licensees must operate. voice or data communications service services and emerging technologies. Legal Basis: 47 U.S.C. 154 and 303. for personal or business activities of the 101.73—Mandatory negotiations. Section Number and Title: general public. 101.75—Involuntary relocation 95.631(i)—Emission types. Legal Basis: 47 U.S.C. 154 and 303. procedures. 95.632—MURS transmitter Section Number and Title: 101.81—Future licensing in the 1850– frequencies. 95.1301—Eligibility. 1990 MHz, 2110–2150 MHz, and 2160– 95.633(f)—Emission bandwidth. 95.1303—Authorized locations. 2200 MHz bands. 95.635(e)—Unwanted radiation. 95.1305—Station identification. 101.83—Modification of station 95.639(g)—Maximum transmitter 95.1307—Permissible license. power. communications. 101.85—Transition of the 18.3–19.3 95.1309—Channel use policy. GHz band from the terrestrial fixed Subpart H—Wireless Medical Telemetry services to the fixed-satellite service Service (WMTS) Part 101—Fixed Microwave Services (FSS). Brief Description: Part 95 contains the Subpart A—General 101.89—Negotiations. Commission rules relating to personal Brief Description: Subpart A contains 101.91—Involuntary relocation radio services. Subpart H sets forth the the general rules pertaining to procedures.

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101.95—Sunset provisions for the 24 GHz Service and implement the 101.1307—Permissible licensees in the 18.30–19.30 GHz band. Commission’s competitive bidding communications. 101.97—Future licensing in the authority under 47 U.S.C. 309(j). 101.1309—Regulatory status. 18.30–19.30 GHz band. Legal Basis: 47 U.S.C. 151, 154(i), 101.1311—Initial EA license 154(j), 155, 157, 225, 303(r) and 309. authorization. Subpart C—Technical Standards Section Number and Title: 101.1313—License term. Brief Description: Subpart C sets forth 101.501—Eligibility. 101.1315—Service areas. technical standards for applications and 101.503—Digital Electronic Message 101.1317—Competitive bidding licenses in the Fixed Microwave Service Nodal Stations. procedures for mutually exclusive MAS Services. 101.509—Interference protection EA applications. Need: The revised rules establish criteria. 101.1319—Competitive bidding revised technical standards for the 24 101.511—Permissible services. provisions. GHz Service, Multiple Address Systems, 101.521—Spectrum utilization. 101.1321—License transfers. and Operational Fixed Stations. 101.523—Service areas. 101.1323—Spectrum aggregation, Legal Basis: 47 U.S.C. 154 and 303. 101.525—24 GHz system operations. disaggregation, and partitioning. Section Number and Title: 101.526—License term. 101.1325—Construction 101.101—Frequency availability. 101.527—Construction requirements requirements. 101.103—Frequency coordination for 24 GHz operations. 101.1327—Renewal expectancy for procedures. 101.529—Renewal expectancy criteria EA licensees. 101.105—Interference protection for 24 GHz licenses. 101.1329—EA Station license, criteria. 101.531—[Reserved] location, modifications. 101.109—Bandwidth. 101.533—Regulatory status. 101.1331—Treatment of incumbents. 101.111—Emission limitations. 101.535—Geographic partitioning and 101.1333—Interference protection 101.113—Transmitter power spectrum aggregation/disaggregation. criteria. limitations. 101.537—24 GHz band subject to [FR Doc. 2011–24973 Filed 9–28–11; 8:45 am] 101.115—Directional antennas. competitive bidding. BILLING CODE 6712–01–P 101.135—Shared use of radio stations 101.538—Designated entities. and the offering of private carrier Subpart J—Local Television service. Transmission Service 101.139—Authorization of DEPARTMENT OF TRANSPORTATION transmitters. Brief Description: Subpart J sets forth Office of the Secretary 101.141—Microwave modulation. rules for the Local Television 101.143—Minimum path length Transmission Service. 49 CFR Part 27 requirements. Need: The revised rules revise the 101.145—Interference to frequency assignments available for the RIN 2105–AD91 geostationary–satellites. Local Television Transmission Service [Docket No. DOT–OST–2011–0182] 101.147—Frequency assignments. and revise the requirements applicable to operation of such facilities at Subpart E—Miscellaneous Common Nondiscrimination on the Basis of temporary fixed locations. Carrier Provisions Disability in Programs or Activities Legal Basis: 47 U.S.C. 154 and 303. Receiving Federal Financial Brief Description: Subpart E sets forth Section Number and Title: Assistance (U.S. Airports) miscellaneous provisions applicable to 101.803—Frequencies. Common Carrier microwave stations. 101.815—Stations at temporary fixed AGENCY: Office of the Secretary, Need: The revised rules apply locations. Department of Transportation (DOT). requirements relating to discontinuance ACTION: Notice of Proposed Rulemaking Subpart O—Multiple Address Systems of service and equal employment (NPRM). opportunities to common carrier Brief Description: Subpart O sets forth operation in the 24 GHz service. the general provisions, system license SUMMARY: The Department is proposing Legal Basis: 47 U.S.C. 154 and 303. requirements, and system requirements to amend its rules implementing section Section Number and Title: for Multiple Address Systems as well as 504 of the Rehabilitation Act of 1973, 101.305—Discontinuance, reduction the provisions implementing Section which requires accessibility in airport or impairment of service. 309(j) of the Communications Act of terminal facilities that receive Federal 101.311—Equal employment 1934, as amended, authorizing the financial assistance. The proposed rule opportunities. Commission to employ competitive includes new provisions related to bidding procedures to resolve mutually service animal relief areas and Subpart G—24 GHz Service and Digital exclusive applications for certain initial captioning of televisions and audio- Electronic Message Service licenses. visual displays that are similar to new Brief Description: Subpart G sets forth Need: The Subpart O rules establish requirements applicable to U.S. and rules for the 24 GHz Service and the service and technical rules applicable to foreign air carriers under the Digital Electronic Message Service and Multiple Address Systems and Department’s Air Carrier Access provides the provisions implementing implement the Commission’s (ACAA) regulations, 14 CFR part 382. Section 309(j) of the Communications competitive bidding authority under 47 The NPRM also proposes to reorganize Act of 1934, as amended, authorizing U.S.C. 309(j). the provision in 49 CFR 27.72 the Commission to employ competitive Legal Basis: 47 U.S.C. 154, 303 and concerning mechanical lifts for bidding procedures to resolve mutually 309. enplaning and deplaning passengers exclusive applications for initial Section Number and Title: with mobility impairments, and to licenses. 101.1301—Scope. amend this provision so airports are Need: The revised rules establish 101.1303—Eligibility. required to work not only with U.S. revised technical and service rules for 101.1305—Private internal service. carriers but also foreign air carriers to

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ensure lifts are available where level Deputy Assistant General Counsel, Standards in 49 CFR 27.3(b) and change entry loading bridges are not available. Office of the Assistant General Counsel the language ‘‘appendix A to part 37 of This proposed rule would apply to for Aviation Enforcement and this title’’ to ‘‘appendices B and D of 36 airport facilities located in the U.S. with Proceedings, Department of CFR part 1191, as modified by appendix 10,000 or more annual enplanements Transportation, 1200 New Jersey A to part 37 of this title.’’ and that receive Federal financial Avenue, SE., Room W96–464, Service Animal Relief Areas assistance. Washington, DC 20590, (202) 366–9342. Arrangements to receive this notice in The 2008 amendment to part 382 DATES: Interested persons are invited to requires U.S. and foreign air carriers to submit comments regarding this an alternative format may be made by contacting the above named individuals. work with airport operators to provide proposal. Comments must be received service animal relief areas at U.S. SUPPLEMENTARY INFORMATION: on or before November 28, 2011. Late- airports. Part 27 does not include a filed comments will be considered to Background provision that mirrors this requirement. the extent practicable. As such, the Department proposes to On November 1, 1996, the U.S. ADDRESSES: You may file comments amend part 27 by inserting a provision Department of Transportation amended identified by docket number DOT–OST– that would require airport operators to its regulation implementing section 504 2011–0182 by any of the following work with carriers to establish relief of the Rehabilitation Act of 1973 to methods: areas for service animals that • create a new section 49 CFR 27.72, Federal eRulemaking Portal: Go to accompany passengers with disabilities concerning regulatory requirements for http://www.regulations.gov and follow departing, connecting, or arriving at U.S. airports to ensure the availability of the online instructions for submitting U.S. airports. comments. lifts to provide level-entry boarding for Part 382 does not provide specific • Mail: Docket Management Facility, passengers with disabilities flying on directives regarding the design, number, U.S. Department of Transportation, 1200 small commuter aircraft. See 61 FR or location of service animal relief areas New Jersey Avenue, SE., West Building 56409. This requirement paralleled the an airport should have; it simply Ground Floor, Room W12–140, lift provisions applicable to U.S. carriers requires carriers to provide service Washington, DC 20590. in the ACAA rule, 14 CFR part 382. On animal relief areas in cooperation with • Hand Delivery or Courier: West May 13, 2008, the Department of the airports and in consultation with Building Ground Floor, Room W12–140, Transportation published a final rule service animal training organizations Washington, DC 20590, between 9 a.m. that amended part 382 by making it concerning the design of service animal and 5 p.m. ET, Monday through Friday, applicable to foreign air carriers. See 73 relief areas. However, in a Frequently except Federal holidays. FR 27614. In addition to making the rule Asked Questions document issued by • Fax: (202) 493–2251. applicable to foreign carriers, the the Department’s Aviation Enforcement Instructions: You must include the amended part 382 includes provisions Office on May 13, 2009, examples of agency name and docket number DOT– that require U.S. and foreign air carriers, factors airlines and airports should OST–2011–0182 or the Regulatory in cooperation with airport operators, to consider in designating and Identification Number (RIN) for the provide animal relief areas for service constructing areas for service animal rulemaking at the beginning of your animals that accompany passengers relief at U.S. airports are provided.1 comment. All comments received will departing, connecting, or arriving at Factors to consider in establishing relief be posted without change to http:// U.S. airports. See 14 CFR 382.51(a)(5). areas include the size and surface www.regulations.gov, including any Part 382 also requires U.S. and foreign material of the area, maintenance, and personal information provided. air carriers to enable captioning on all distance to relief area which could vary Privacy Act: Anyone is able to search televisions and other audio-visual based on the size and configuration of the electronic form of all comments displays that are capable of displaying the airport. The Department seeks received in any of our dockets by the captioning and that are located in any comment about whether it should adopt name of the individual submitting the portion of the airport terminal to which requirements regarding the design of comment (or signing the comment, if any passengers have access. See 14 CFR service animal relief areas and what, if submitted on behalf of an association, 382.51(a)(6). As a result of the 2008 any, provisions the rule should include business, labor union, etc.). You may amendment to part 382, the concerning the dimensions, materials review DOT’s complete Privacy Act requirements in part 27 do not mirror used, and maintenance for relief areas. statement in the Federal Register the requirements applicable to airlines We are tentatively proposing a published on April 11, 2000 (65 FR set forth in part 382. In order to minimum of one service animal relief 19477–78), or you may visit http:// harmonize part 27 with the amended area for each terminal in an airport. The DocketsInfo.dot.gov. part 382, the Department proposes to Department is aware that requiring only Docket: For access to the docket to amend part 27 to add such parallel one service animal relief area for each read background documents or provisions. terminal in an airport may result in comments received, go to http:// The proposed rule would also update individuals with disabilities missing www.regulations.gov or to the street outdated terminology and references flights when trying to reach service address listed above. Follow the online that currently exist in 49 CFR part 27. animal relief areas located outside the instructions for accessing the docket. The proposed rule would change the sterile area of an airport, especially in FOR FURTHER INFORMATION CONTACT: word ‘‘handicapped,’’ and similar Maegan L. Johnson, Trial Attorney, variations of that word that appear 1 The Transportation Security Administration Office of the Assistant General Counsel throughout part 27, to ‘‘people first’’ (TSA) worked with the Department to develop guidelines identifying key security concerns and for Aviation Enforcement and language (e.g., ‘‘individuals with concepts that should be factored into the planning Proceedings, Department of disabilities’’) consistent with practice and design of airport facilities, including service Transportation, 1200 New Jersey under the Americans with Disabilities animal relief areas. See ‘‘Recommended Security Guidelines for Airport Planning, Design and Avenue, SE., Room W96–464, Act. Additionally, the proposed rule Construction,’’ revised May 2011, available Washington, DC 20590, (202) 366–9342. would delete the obsolete reference to at http://www.tsa.gov/assets/pdf/ You may also contact Blane A. Workie, the Uniform Federal Accessibility airport_security_design_guidelines.pdf.

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larger airports. For this reason, and inside the sterile area. Consequently, the Information for Passengers despite our tentative recommendation of Department seeks comment on where As a result of the 2008 amendment of one relief area for each terminal in an airport service animal relief areas part 382, U.S. and foreign air carriers are airport, the Department seeks comment should be located to ensure that the required to enable captioning 3 on on what would be an appropriate time and distance to access the service televisions and other audio-visual number of service animal relief areas in animal relief areas do not create barriers displays under their control in terminals an airport. In addition to seeking public for passengers with disabilities. to which passengers have access. comment on how many service animal Finally, the Department has been Currently part 27 does not have a relief areas should be required at an made aware that some individuals with corresponding requirement for U.S. airport or a terminal, the Department airports. The Department proposes to would like to know how that number disabilities, especially, but not only, individuals who are blind or visually amend part 27 by inserting a provision should be determined. For example, that would require airport operators at should the number be determined by impaired, are experiencing difficulty in locating service animal relief areas at U.S. airports to enable high-contrast the size or configuration of the airport captioning on certain televisions and (e.g., the number, location and design of certain airports. Under part 382, passengers who request that a carrier audio-visual displays in U.S. airports. terminals and concourses) and/or the Most televisions currently in use at provide them with assistance to an amount of time it would take for an U.S. airports have captioning animal relief area should be advised by individual with a disability to reach a capabilities because all televisions with service animal relief area from any gate the carrier of the location of the animal screens 13″ or larger in size, made or within the airport? Or should DOT relief area. Additionally, if requested, it sold in the U.S. since July 1, 1993, are establish a performance requirement would be the responsibility of the required by Federal law to have that a passenger arriving at any gate carrier to accompany a passenger captioning capabilities. Because of this, with his or her service animal be able traveling with a service animal to and DOT believes that requiring airports to to reach a relief area in 10, 20 or some from the animal relief area. enable the captioning feature should not other number of minutes? Nevertheless, we seek comment on be costly or otherwise onerous. We The Department also seeks comment whether the rule should include a believe compliance with this section is on the placement of service animal provision requiring airports to specify a matter of providing the training relief areas, particularly whether service the location of service animal relief necessary to turn on the captioning animal relief areas should be located areas on airport Web sites, maps and/or feature of a television or other audio- 2 inside or outside the sterile area of an diagrams of the airport, including visual display. Such training does not airport. It could be important to have whether the relief area is located inside appear to require a lengthy amount of relief areas both inside and outside the or outside a sterile area. We also seek time or in-depth instruction. Given the sterile area of an airport to ensure that comment on whether airports should be straightforward nature of the individuals with service animals have required to provide signage to assist implementation involved, the access to such areas when traveling. For individuals with disabilities in locating Department believes that the proposed example, an individual traveling with a service animal relief areas. thirty-day implementation period is service animal could arrive at Gate C3 To the extent that the Department adequate. DOT seeks comment on any and have an hour to make a connection reasons that a longer time frame may be to a flight at Gate G17. If the individual issues a final rule with requirements for airports to establish service animal relief necessary. must leave the sterile area to find a Part 27 also does not contain a areas that are more detailed than the service animal relief area, travel to and requirement for airports to provide the requirements for U.S. and foreign from that area, and then go back through same information to deaf or hard of airports that exist in part 382, the security screening, the individual could hearing individuals in airports that they have difficulty in making the connecting Department believes that it is beneficial provide to other members of the public. flight. At the same time, we understand to have the same requirements apply to It is important that persons with a that some airports have expressed U.S. and Foreign airlines. As such, we hearing loss or who are deaf do not miss security and logistical concerns about are soliciting comment on whether any important information available to the placement of service animal relief requirement that applies to U.S. airports others at an airport through the public areas inside the sterile area of an airport. should also be applied to U.S. and address system. The Department seeks The Department also recognizes that the foreign carriers. For example, if the comment on whether it should require Transportation Security Administration Department creates a requirement that U.S. airports to display messages and (TSA) in May 2011 revised its airports must establish service animal pages broadcast over public address guidelines ‘‘Recommended Security relief areas inside the sterile area of an systems on video monitors. We also Guidelines for Airport Planning, Design airport, should such a requirement seek comment on whether we should and Construction,’’ to make clear that apply to U.S. and foreign air carriers in amend 14 CFR part 382 to apply such airports may provide Service Animal part 382? a requirement to U.S. and foreign air Relief Areas in sterile areas of the We propose that any final rule that we carriers with respect to terminal airport, or may provide escorted access adopt regarding establishing service facilities that a carrier owns, leases or to non-designated outdoor areas for the animal relief areas take effect 120 days controls. Is visual display of information purpose of service animal relief. The after its publication in the Federal announced over the public address Department also recognizes that Register. We believe this would allow coordination with the TSA via each sufficient time for airports to comply 3 High-contrast captioning is defined in 14 CFR airport’s site-specific Airport Security with this requirement, particularly since 382.3 as ‘‘captioning that is at least as easy to read Program would need to occur if service as white letters on a consistent black background.’’ U.S. and foreign airlines are already animal relief areas are to be placed As explained in the preamble to part 382, defining working with airports to establish and ‘‘high-contrast captioning’’ in such a way not only maintain service animal relief areas. We ensures that captioning will be effective but also 2 The sterile area is the area between the TSA allows carriers to use existing or future technologies passenger screening checkpoint and the aircraft invite comments on whether 120 days is to achieve captioning that are as effective as white boarding gates. See 49 CFR 1540.5. the appropriate interval. on black or more so.

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system the best means to disseminate that all actions necessary to ensure The Department has attempted to airport-related announcements to accessible boarding and deplaning for propose this extension in as equitable a passengers with hearing impairments? passengers with disabilities be manner as possible by applying to U.S. Should the Department establish a completed no later than 120 days after airports the same regulatory provisions performance standard for providing the final rule’s publication in the that apply to U.S. and foreign air information to individuals with hearing Federal Register. carriers. As noted above, the provisions impairments rather than require airports Also, the proposed rule would of the proposed rule apply only to U.S. to use a particular medium (e.g., video restructure the current lift requirements airports with 10,000 or more annual monitors, wireless pagers, erasable found in 49 CFR 27.72. When the rule enplanements and that receive Federal boards)? Also, we ask interested persons was first written, 49 CFR 27.72 applied financial assistance. to comment on whether the Department to aircraft with a seating capacity of 19 The rule is not expected to require the should simply require that airports through 30 passengers. This provision purchase of additional lifts, since the provide the text of the announcements was amended in May 3, 2001, to also approximately 216 affected U.S. airports made over the public address system apply to aircraft with a seating capacity (i.e., those that are served by foreign flag promptly or should instead require that of 31 or more passengers. Because of the carriers and that have 10,000 or more there be simultaneous visual implementation timelines specified in enplanements) will already have lifts transmission of the information. We also the 2001 amendment, 49 CFR 27.72 available by agreement between the seek comment on whether all includes two separate provisions airports and U.S. carriers as a result of announcements made through the outlining boarding assistance the existing version of part 27. These public address system should be requirements for individuals with airports may have already agreed with displayed in a manner that is accessible disabilities, section 27.72(c) and section foreign carriers, such as certain to deaf and hard-of-hearing travelers, or 27.72(d). As an editorial matter the Canadian, Mexican, or Caribbean only those announcements that are proposed rule would eliminate this carriers that use smaller aircraft that essential, e.g., that pertain to distinction and make the rule applicable board from the tarmac, to provide this emergencies (fire, bomb threat etc.), to lifts for boarding any aircraft with a service; most other foreign carriers use flight information (gate assignments, seating capacity of 19 or more larger aircraft that normally board via delays or cancellations), or individuals passengers that are not boarded via a loading bridges. The effect of the rule being paged. Finally, the Department level-entry loading bridge. would then be only to mandate what seeks comment on how much time has already been done voluntarily. airports would need to establish a Regulatory Analyses and Notices Existing agreements between carriers system for displaying announcements A. Executive Orders 13563 and 12866 and airports, however, may need to be and pages broadcast over public address and DOT Regulatory Policies and adjusted to broaden the availability of system as well as the cost for Procedures the lifts. Nonetheless, the Department establishing such a system. seeks comment on whether the rule Executive Orders 13563 and 12866 would require U.S. airports to purchase Boarding Lifts for Aircraft direct agencies to assess all costs and additional lifts, and if so how many, and Approximately 10 years ago, 49 CFR benefits of available regulatory what the cost of a typical lift is. 27.72 was amended to mirror a alternatives and, if regulation is A particularly important element of provision in part 382 that required U.S. necessary, to select regulatory the proposed rule is the addition of a air carriers to enter into agreements with approaches that maximize net benefits new provision that requires U.S. airport airport operators to ensure that lifts are (including potential economic, operators, in cooperation with U.S. and available for enplaning and deplaning environmental, public health and safety foreign air carriers, to provide service passengers with disabilities. As noted effects, distributive impacts, and animal relief areas. The proposed rule above, part 382 was extended to foreign equity). Executive Order 13563 contemplates a minimum of one relief air carriers in 2008. Currently 49 CFR emphasizes the importance of area for each terminal within an airport; 27.72 does not require U.S. airports to quantifying both costs and benefits, of however, the Department is aware that work with foreign carriers to ensure that reducing costs, of harmonizing rules, requiring only one service animal relief lifts are available; the language in 49 and of promoting flexibility. This action area for each terminal in an airport may CFR 27.72 covers only arrangements has been determined to be significant be inadequate as it may result in with U.S. carriers. The proposed rule under Executive Order 12866 and the individuals with disabilities missing would impose on U.S. airports the same Department of Transportation flights when trying to reach service requirements with respect to foreign Regulatory Policies and Procedures animal relief areas located outside the carriers that 49 CFR 27.72 currently because of its considerable interest to sterile area of an airport, especially in imposes on them with respect to U.S. the disability community and the larger airports. Nonetheless, given the carriers. The proposed rule would aviation industry. However DOT does widely divergent plans of airports, we require airport operators to negotiate in not believe at this time that this action are only able to make a plausible good faith with foreign air carriers to meets the criteria under the Executive assumption about the number of provide, operate and maintain lifts for Order for an economically significant terminals that exist in a given airport boarding and deplaning where level- rule. based on the size of the airport. Using entry loading bridges are not available. This action is the result of several information provided by the FAA, Under this proposal, the airport important regulatory changes made to which categorizes the size of the 368 operators would be required to sign, no 14 CFR part 382, the rule implementing airports within the United States, we later than 90 days after publication of the ACAA. The extension to U.S. postulate that the 29 large-hub airports the final rule in the Federal Register, a airports of the current lift provision in contain approximately 7 terminals, the written agreement with each foreign air 49 CFR part 27, which requires airports 36 medium-hub airports contain carrier serving that airport that allocates to work not only with U.S. but also with approximately 5 terminals, the 72 small- responsibility for providing, operating foreign air carriers to ensure the hub airports contain approximately 3 and maintaining the lifts. We are availability of lifts, will be of interest to terminals, and the 231 non-hub airports proposing that the agreement provide the aviation industry and the public. contain approximately 1 terminal. As

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such, we estimate that 830 terminals number of small entities. The SBREFA announcing the effective date of the will exist in the 368 airports in the amended the Regulatory Flexibility Act information collection requirements. United States. We estimate that the to require Federal agencies to provide a initial cost for such an area would be statement of the factual basis for F. Unfunded Mandates Reform Act approximately $5,000 per terminal, with certifying that a rule will not have a The Department has determined that low- and high-cost alternatives ranging significant economic impact on a the requirements of Title II of the from $1,000 to $10,000. We postulate a substantial number of small entities. Unfunded Mandates Reform Act of 1995 likely annual maintenance cost of The Department certifies that this do not apply to this notice. $1,000 per terminal with a range from rule, if adopted, would not have a Issued this 21st day of September 2011 in $500 to $2,000. The Department seeks significant economic impact on a Washington, DC. comments on these estimates. substantial number of small entities. Ray LaHood, Also, the Department believes that The Small Business Administration Secretary of Transportation. most airport video monitors have (SBA) size standards define privately captioning capability, and turning on owned airports as small businesses if List of Subjects in 49 CFR Part 27 the captioning is likely to have minimal their annual revenues do not exceed $7 Airports, Civil rights, Individuals costs. million. Publicly owned airports are with disabilities, Reporting and B. Executive Order 13132 (Federalism) categorized as small entities if they are recordkeeping requirements. owned by jurisdictions with fewer than For the reasons set forth in the This Notice of Proposed Rulemaking 50,000 inhabitants. This rule applies to preamble, the Department of has been analyzed in accordance with airports with 10,000 or more annual Transportation proposes to amend 49 the principles and criteria contained in enplanements, which are primary CFR part 27 as follows: Executive Order 13132 (‘‘Federalism’’). airports that have more commercial- 1. The authority citation for part 27 This notice does not propose any service traffic and account for 96% of continues to read as follows: regulation that has substantial direct U.S. enplanements per annum. Out of effects on the States, the relationship Authority: Sec. 504 of the Rehabilitation the 368 airports with more than 10,000 between the national government and Act of 1973, as amended (29 U.S.C. 794); sec. enplanements that are potentially 16 (a) and (d) of the Federal Transit Act of the States, or the distribution of power affected by the proposed rule, we 1964, as amended (49 U.S.C. 5310 (a) and (f); and responsibilities among the various estimate that approximately 50 to 55 are sec. 165 (b) of the Federal-Aid Highway Act levels of government. It does not defined as small entities. of 1973, as amended (23 U.S.C. 142 nt.). propose any regulation that imposes 2. In § 27.3, amend paragraph (b) to substantial direct compliance costs on The Department believes that the read as follows: States and local governments. Therefore, economic impact will not be significant the consultation and funding to these 55 airports because the overall (b) Design, construction, or alteration of requirements of Executive Order 13132 annual costs associated with the rule are buildings or other fixed facilities by public do not apply. not great. The only provision of this rule entities subject to part 37 of this title shall that we believe may impose measurable be in conformance with appendices B and D C. Executive Order 13084 costs on airports is the requirement that of 36 CFR part 1191, as modified by at least one service animal relief area be appendix A to part 37 of this title. All other This Notice of Proposed Rulemaking entities subject to section 504 shall design, has been analyzed in accordance with made available at each U.S. airport construct, or alter buildings, or other fixed the principles and criteria contained in terminal. The estimated total costs for facilities, in conformance with appendices B Executive Order 13084 (‘‘Consultation constructing and maintaining relief and D of 36 CFR part 1191, as modified by and Coordination with Indian Tribal areas at these airports, assuming that appendix A to part 37 of this title. Governments’’). The funding and each of these 55 airport would only 3. In § 27.71, add paragraph (h) and (i) consultation requirements of Executive need one relief area, would range from to read as follows: Order 13084 do not apply because this a low of about $600 to a high of about (h) Service animal relief areas. Each airport notice does not significantly or uniquely $3,000, with an expected value of about $1,500. On the basis of this with 10,000 or more annual enplanements affect the communities of the Indian shall consult with service animal training Tribal governments and does not examination, the Department certifies organization(s) and cooperate with airlines impose substantial direct compliance that this rule will not have a significant that own, lease, or control terminal facilities costs. economic impact on a substantial at that airport to provide at least one animal number of small entities. A copy of the relief area in each airport terminal for service D. Regulatory Flexibility Act Regulatory Flexibility Analysis will be animals that accompany passengers Pursuant to the Regulatory Flexibility placed in docket. departing, connecting, or arriving at the Act (5 U.S.C. 601 et seq., as amended by airport. To the extent that airports have E. Paperwork Reduction Act the Small Business Regulatory established animal relief areas prior to the effective date of this subsection and have not Enforcement Fairness Act (SBREFA) of This proposed rule adopts new and consulted with service animal training 1996), whenever an agency is required revised information collection organization(s), airports shall consult with to publish a notice of rulemaking for requirements subject to the Paperwork service animal training organization(s) any proposed or final rule, it must Reduction Act (PRA). The Department regarding the sufficiency of all existing prepare and make available for public will publish a separate notice in the animal relief areas. comment a regulatory flexibility Federal Register inviting OMB, the (i) High-contrast captioning (captioning analysis that describes the effect of the general public, and other Federal that is at least as easy to read as white letters rule on small entities (i.e., small agencies to comment on the new and on a consistent background) on television businesses, small organizations, and revised information collection and audio-visual displays. This subsection applies to airports with 10,000 or more small governmental jurisdictions). No requirements contained in this annual enplanements. regulatory flexibility analysis is required document. As prescribed by the PRA, (1) Airport operators must enable high- if the head of an agency certifies that the the requirements will not go into effect contrast captioning at all times on all rule will not have a significant until OMB has approved them and the televisions and other audio-visual displays economic impact on a substantial Department has published a notice that are capable of displaying captions and

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that are located in any gate area, ticketing (2) The agreement shall ensure that all section, or cannot be provided as area, first-class or other passenger lounge lifts and other accessibility equipment required by paragraphs (b), (c), and (d) provided by a U.S. or foreign carrier, or any are maintained in proper working of this section (e.g., because of common area of the terminal, excluding condition. mechanical problems with a lift), shops and/or restaurants, to which any (d) Each airport operator shall passengers have access. boarding assistance shall be provided by (2) With respect to any televisions or other negotiate in good faith with each foreign any available means to which the audio-visual displays located in any gate carrier serving the airport concerning passenger consents. However, hand- area, ticketing area, first-class or other the acquisition and use of boarding carrying (i.e., directly picking up the passenger lounge provided by a U.S. or assistance devices to ensure the passenger’s body in the arms of one or foreign carrier, or any common area of the provision of mechanical lifts, ramps, or more carrier personnel to effect a level terminal, excluding shops and/or restaurants, other devices for boarding and change the passenger needs to enter or to which any passengers have access, that deplaning where level-entry loading leave the aircraft) must never be used, provide passengers with safety briefings, bridges are not available. The airport information, or entertainment that do not even if the passenger consents, unless have high-contrast captioning capability, an operator shall, by no later than this is the only way of evacuating the airport operator must replace these devices December 28, 2011, sign a written individual in the event of an emergency. with equipment that does have such agreement with the foreign carrier (g) In the event that airport personnel capability whenever such equipment is allocating responsibility for meeting the are involved in providing boarding replaced in the normal course of operations boarding and deplaning assistance assistance, the airport shall ensure that and/or whenever areas of the terminal in requirements of this subpart between or they are trained to proficiency in the use which such equipment is located undergo among the parties. The agreement shall of the boarding assistance equipment substantial renovation or expansion. be made available, on request, to used at the airport and appropriate (3) If an airport acquires new televisions or other audio-visual displays for passenger representatives of the Department of boarding assistance procedures that safety briefings, information, or Transportation. safeguard the safety and dignity of entertainment on or after [insert effective (1) The agreement shall provide that passengers. date of the final rule], such equipment must all actions necessary to ensure 5. In 49 CFR part 27 the word have high-contrast captioning capability. accessible boarding and deplaning for ‘‘nonhandicapped’’ is revised to read 4. Amend § 27.72 to read as follows: passengers with disabilities are ‘‘nondisabled’’ wherever it occurs. The completed as soon as practicable, but no term ‘‘handicapped person’’’ is revised § 27.72 Boarding assistance for aircraft. later than [insert 120 days after date of to read ‘‘individual with a disability’’’ (a) This section applies to airports publication in Federal Register of the wherever it occurs. The term with 10,000 or more annual final rule]. ‘‘handicapped persons’’ is revised to enplanements. (2) All airport operators and foreign read ‘‘individuals with a disability’’ (b) Airports shall, in cooperation with carriers involved are jointly and wherever it occurs. The term ‘‘qualified carriers serving the airports, provide severally responsible for the timely and handicapped person’’ is revised to read boarding assistance to individuals with complete implementation of the ‘‘qualified individual with a disability’’ disabilities using mechanical lifts, agreement. wherever it occurs. The term ‘‘qualified ramps, or other devices that do not (3) The agreement shall ensure that all handicapped persons’’ is revised to read require employees to lift or carry lifts and other accessibility equipment ‘‘qualified individuals with a passengers up stairs. This section are maintained in proper working disability.’’ Wherever the word applies to all aircraft with a passenger condition. ‘‘handicapped’’ is used without being capacity of 19 or more passenger seats, (e) Boarding assistance agreements followed by the words ‘‘person’’ or except as provided in paragraph (e) of required in paragraphs (c) and (d) are ‘‘persons,’’ it is revised to read this section. Paragraph (c) of this section not required to apply to the following ‘‘disabled’’ wherever it occurs. situations: applies to U.S. carriers and paragraph [FR Doc. 2011–24849 Filed 9–28–11; 8:45 am] (1) Access to float planes; (d) of this section applies to foreign (2) Access to the following 19-seat BILLING CODE 4910–9X–P carriers. capacity aircraft models: The Fairchild (c) Each airport operator shall Metro, the Jetstream 31 and 32, the negotiate in good faith with each U.S. Beech 1900 (C and D models), and the DEPARTMENT OF THE INTERIOR carrier serving the airport concerning Embraer EMB–120; the acquisition and use of boarding (3) Access to any other aircraft model Fish and Wildlife Service assistance devices to ensure the determined by the Department of provision of mechanical lifts, ramps, or Transportation to be unsuitable for 50 CFR Part 17 other devices for boarding and boarding and deplaning assistance by [Docket No. FWS–R5–ES–2011–0067; deplaning where level-entry loading lift, ramp, or other suitable device. The 92210–0–0008–B2] bridges are not available. The airport Department will make such a Endangered and Threatened Wildlife operator must have a written, signed determination if it concludes that— agreement with each U.S. carrier (i) No existing boarding and and Plants; 90-Day Finding on a allocating responsibility for meeting the deplaning assistance device on the Petition To List the American Eel as boarding and deplaning assistance market will accommodate the aircraft Threatened requirements of this subpart between or without significant risk of serious AGENCY: Fish and Wildlife Service, among the parties. The agreement shall damage to the aircraft or injury to Interior. be made available, on request, to passengers or employees, or ACTION: Notice of petition finding and representatives of the Department of (ii) Internal barriers are present in the initiation of status review. Transportation. aircraft that would preclude passengers (1) All airport operators and U.S. who use a boarding or aisle chair from SUMMARY: We, the U.S. Fish and carriers involved are jointly and reaching a non-exit row seat. Wildlife Service (Service), announce a severally responsible for the timely and (f) When level-entry boarding and 90-day finding on a petition to list the complete implementation of the deplaning assistance is not required to American eel (Anguilla rostrata) as agreement. be provided under paragraph (e) of this threatened under the Endangered

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Species Act of 1973, as amended (Act). Hadley, MA 01035; by telephone at results in selective growth, sex ratios, Based on our review, we find that the (413–253–8615); or by facsimile (413– increased vulnerability to threats, or petition presents substantial scientific 253–8482). If you use a habitat preferences; or commercial information indicating telecommunications device for the deaf (b) Existence of population structure that listing this species may be (TDD), please call the Federal to the degree that a threat could have warranted. Therefore, with the Information Relay Service (FIRS) at differentiating effects on portions of the publication of this notice, we are 800–877–8339. population and not on the whole initiating a review of the status of the SUPPLEMENTARY INFORMATION: species; species to determine if listing the (c) Statistically significant long-term American eel is warranted. To ensure Request for Information glass eel recruitment declines. If that this status review is When we make a finding that a landings data are used, the catch per comprehensive, we are requesting petition presents substantial unit effort is integrated into the results, scientific and commercial data and information indicating that listing a preferably from more than one location other information regarding this species. species may be warranted, we are along the Atlantic Coast. Raw data will Based on the status review, we will required to promptly review the status be accepted; however, data that have not issue a 12-month finding on the of the species (status review). For the been analyzed will likely have limited petition, which will address whether status review to be complete and based value in our assessment. the petitioned action is warranted, as on the best available scientific and (4) Information on the correlation provided in section 4(b)(3)(B) of the Act. commercial information, we request between climate change and glass eel DATES: To allow us adequate time to information on the American eel from recruitment, such as Atlantic oceanic conduct this review, we request that we governmental agencies, Native conditions data, analyses, and receive information on or before American Tribes, the scientific predictions including, but not limited November 28, 2011. The deadline for community, industry, and any other to: submitting an electronic comment using interested parties. We seek new (a) Climate change predictions over the Federal eRulemaking Portal (see information not previously available or the next 25, 50, 75, and/or 100 years as ADDRESSES, below) is 11:59 p.m. Eastern not considered at the time of the 2007 they relate to ocean circulation, changes Time on this date. After November 28, status review on: in the Sargasso sea circulation, sea 2011, you must submit information (1) The species’ biology, range, and surface temperature (SST), or larvae and directly to the Regional Office (see FOR population trends, including: glass eel food availability, either directly FURTHER INFORMATION CONTACT below). (a) Habitat requirements for feeding, or indirectly through changes in SST Please note that we may not be able to breeding, and sheltering; that affect primary productivity; address or incorporate information that (b) Genetics and taxonomy; (b) Quantitative research on the food we receive after the above requested (c) Historical and current range, of eel larvae and the relationship of food date. including distribution patterns; availability to survival of eel larvae; (d) Historical and current population (c) Further investigations into the ADDRESSES: You may submit levels, and current and projected trends; indirect effects of a change in SST on information by one of the following and nutrient circulation due to enhanced methods: (e) Past and ongoing conservation stratification of the water column and (1) Electronically: Go to the Federal measures for the species, its habitat, or its effects on phytoplankton eRulemaking Portal: http:// both. communities; www.regulations.gov. In the Enter (2) The factors that are the basis for (d) The length of time eel larvae take Keyword or ID box, enter FWS–R5–ES– making a listing determination for a to migrate to the Atlantic coast from the 2011–0067, which is the docket number species under section 4(a) of the Act (16 Sargasso Sea; for this action. Then, in the Search U.S.C. 1531 et seq.), which are: (e) The impact of food availability panel on the left side of the screen, (a) The present or threatened along the entire migration route on eel under the Document Type heading, destruction, modification, or larvae survival; click on the Proposed Rules link to curtailment of its habitat or range; (f) Threats to the Sargasso Sea of the locate this document. You may submit (b) Overutilization for commercial, magnitude that would be predicted to a comment by clicking on ‘‘Submit a recreational, scientific, or educational affect glass eel recruitment, and Comment’’. purposes; information on increased larval (2) By hard copy: Submit by U.S. mail (c) Disease or predation, specifically: retention in the Sargasso Sea gyre or hand-delivery to: Public Comments (i) Rangewide analysis of the resulting from changes in winds due to Processing, Attn: FWS–R5–ES–2011– prevalence of the parasite, Anguillicola climate change. 0067; Division of Policy and Directives crassus, in American eel; If, after the status review, we Management; U.S. Fish and Wildlife (ii) Data collection and analysis determine that listing the American eel Service; 4401 N. Fairfax Drive, MS designed to differentiate between is warranted, we will propose critical 2042–PDM; Arlington, VA 22203. American eel rangewide population habitat (see definition in section 3(5)(A) We will not accept e-mail or faxes. We fluctuations responding to other natural of the Act) under section 4 of the Act, will post all information we receive on phenomena, such as ocean conditions, to the maximum extent prudent and http://www.regulations.gov. This and infections from Anguillicola determinable at the time we propose to generally means that we will post any crassus; list the species. Therefore, we also personal information you provide us (d) The inadequacy of existing request data and information on: (see the Request for Information section regulatory mechanisms; or (1) What may constitute ‘‘physical or below for more details). (e) Other natural or manmade factors biological features essential to the FOR FURTHER INFORMATION CONTACT: affecting its continued existence. conservation of the species,’’ within the Martin Miller, Chief, Division of (3) Data that supports or refutes: geographical range currently occupied Endangered Species, U.S. Fish and (a) Panmixia (having one, well-mixed by the species; Wildlife Service, Northeast Regional breeding population), including (2) Where these features are currently Office, 300 Westgate Center Drive, evidence of genetic differentiation that found;

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(3) Whether any of these features may the petition and publish our notice of In a March 9, 2011, letter to the require special management the finding promptly in the Federal petitioner, we requested copies of the considerations or protection; Register. references that were cited as part of the (4) Specific areas outside the Our standard for substantial scientific petition but were not furnished with the geographical area occupied by the or commercial information within the petition or readily available in our files. species that are ‘‘essential for the Code of Federal Regulations (CFR) with On April 1, 2011, we received a letter conservation of the species;’’ and regard to a 90-day petition finding is dated March 31, 2011, from the (5) What, if any, critical habitat you ‘‘that amount of information that would petitioner stating that the requested think we should propose for the lead a reasonable person to believe that citations were available via an internet designation if the species is proposed the measure proposed in the petition Google search or through the for listing, and why such habitat meets may be warranted’’ (50 CFR 424.14(b)). Department of the Interior library or its the requirements of section 4 of the Act. If we find that substantial scientific or interlibrary loan program. On April 4, Please include sufficient information commercial information was presented, 2011, we received a second copy of the with your submission (such as scientific we are required to promptly conduct a March 31, 2011, letter with a compact journal articles or other publications) to species status review, which we disc containing most, but not all, of the allow us to verify any scientific or subsequently summarize in our 12- requested references. This finding commercial information you include. month finding. addresses the petition. Submissions merely stating support for or opposition to the action under Petition History Previous Federal Action(s) consideration without providing On April 30, 2010, we received a On May 27, 2004, the Atlantic States supporting information, although noted, petition dated April 30, 2010, from Marine Fisheries Commission (ASMFC), will not be considered in making a Craig Manson, Executive Director of the concerned about extreme declines in the determination. Section 4(b)(1)(A) of the Council for Endangered Species Act Saint Lawrence River/Lake Ontario Act directs that determinations as to Reliability (CESAR or petitioner), (SLR/LO) portion of the species’ range, whether any species is an endangered or requesting that the American eel be requested that the Service and NMFS threatened species must be made listed by the Service and National conduct a status review of the American ‘‘solely on the basis of the best scientific Marine Fisheries Service (NMFS) as eel. The ASMFC also requested an and commercial data available.’’ threatened under the Act. The petition evaluation of the appropriateness of a You may submit your information clearly identified itself as such and Distinct Population Segment (DPS) concerning this status review by one of included the requisite identification listing under the Act for the SLR/LO the methods listed in ADDRESSES. If you information for the petitioner, as and Lake Champlain/Richelieu River submit information via http: required by 50 CFR 424.14(a). In a May portion of the American eel population, //www.regulations.gov, your entire 13, 2010, letter to the petitioner, we as well as an evaluation of the entire submission—including any personal acknowledged receipt of the petition Atlantic coast American eel population identifying information—will be posted and stated that the Service, not NMFS, (ASMFC 2004, p. 1). The Service on the Web site. If your submission is had jurisdiction over the American eel responded to this request on September made via a hard copy that includes and we would be responding to the 24, 2004; our response stated that we personal identifying information, you petition. had conducted a preliminary review may request at the top of your document On September 7, 2010, we received a regarding the potential DPS as described that we withhold this personal Notice of Intent to Sue (NOI) from the by the ASMFC, and determined that the identifying information from public petitioner for failure to respond to the American eel was not likely to meet the review. However, we cannot guarantee petition. In a November 23, 2010, letter discreteness element of the policy that we will be able to do so. We will to the petitioner, we stated that the requirements due to lack of population post all hard copy submissions on Service’s appropriation in fiscal year subdivision. Rather, the Service agreed http://www.regulations.gov. (FY) 2010 was insufficient to address its to conduct a rangewide status review of Information and supporting large backlog of listing actions, and the American eel in coordination with documentation that we received and consequently we had not yet been able NMFS and ASMFC (Service 2004, p. 1). used in preparing this finding are to begin work on the petition. We also On November 18, 2004, the Service available for you to review at http:// stated that we anticipated funding and NMFS received a petition, dated www.regulations.gov, or you may make becoming available in FY 2011 to work November 12, 2004, from Timothy A. an appointment during normal business on the petition. On December 29, 2010, Watts and Douglas H. Watts, requesting hours at the U.S. Fish and Wildlife we received a letter dated December 23, that the Service and NMFS list the Service, Northeast Regional Office (see 2010, from the petitioner requesting American eel as an endangered species FOR FURTHER INFORMATION CONTACT). clarification on our November 23, 2010, under the Act. The petitioners cited letter. The petitioner asked whether we destruction and modification of habitat, Background had made a ‘‘warranted but precluded’’ overutilization, inadequacy of existing Section 4(b)(3)(A) of the Act requires determination due to funding regulatory mechanisms, and other that we make a finding on whether a limitations or were merely further natural and manmade factors (such as petition to list, delist, or reclassify a acknowledging their petition. In a contaminants and hydroelectric species presents substantial scientific or January 10, 2011, letter to the petitioner, turbines) as threats to the species. On commercial information indicating that we clarified that the intent of our July 6, 2005, the Service issued a 90-day the petitioned action may be warranted. November 23, 2010, letter was to both finding (70 FR 38849), which found that We are to base this finding on acknowledge receipt of the NOI and to the petition presented substantial information provided in the petition, explain that it was not practicable for information indicating that listing the supporting information submitted with the Service to work on the petition until American eel may be warranted, and the petition, and information otherwise we received funding to do so. We also initiated a status review. available in our files. To the maximum stated that we had, as of January 10, On February 2, 2007, the Service extent practicable, we are to make this 2011, received funding to evaluate the issued a 12-month finding that listing finding within 90 days of our receipt of petition. the American eel as threatened or

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endangered was not warranted (72 FR Sargasso Sea (outmigration), great While one study (Cote et al. 2009, pp. 4967). endurance and an extensive fat reserve 1943–1944) preliminarily suggests that are required. Larger, fatter eels have an regional variations in growth may be Species Information advantage over smaller eels in reaching genetically related, and possibly call This section is a summary of the the Sargasso Sea and having sufficient into question our understanding of species information presented in the energy stores to reproduce. Fecundity (a panmixia in the American eel, the Service’s 2007 12-month finding (72 FR measure of fertility) of American eels authors state that the genetics have not 4967), supplemented where noted with varies with body length and habitat been rigorously tested, and the analysis more recent citations; for a more occupied, larger female eels occupying may just show the start of possible complete description of the species’ upstream habitat produce more eggs adaptive population genetic biology, habitat and range, see 72 FR than do smaller, estuarine females. Eels differentiation (Cote et al. 2009, pp. 4967, pp. 4968–4977. from northern areas, where migration 1943–1944; DeLeo et al. 2009, pp. 2, 4). The life history of the American eel distances are great, show slower growth If we find in the future that the Cote et begins in the Sargasso Sea, located in and greater length, weight, and age at al. (2009) hypothesis of a genetic basis the middle of the North Atlantic Ocean, migration, preparing them, it has been for regional growth variations does have where eggs hatch into a larval stage hypothesized, for the longer migration. merit for the American eel, that will known as ‘‘leptocephali.’’ These American eels in United States southern change our understanding that the eel is leptocephali are transported by ocean Atlantic coast waters, although smaller, fully panmictic, and the Service may currents from the Sargasso Sea to the develop into silver eels about 5 years need to reexamine the species-level Atlantic coasts of North America and sooner than northern eels, likely as a effects of the various threats discussed northern portions of South America. result of warmer, more stable water below. However, until such time as Leptocephali migrate in the surface conditions. These southern eels would information becomes available layer of the ocean where food particles travel significantly shorter distances concerning geographically distributed are most abundant. Tsukamoto et al. back to the Sargasso than would genetic structure for the American eel, (2009, p. 835) found that leptocephali northern eels. Variation in maturation we will continue to consider the appear to have a unique mechanism of age benefits the population by allowing American eel panmictic, as that life buoyancy control (chloride cells all over different individuals of a given year strategy is currently supported by the the body surface), that differs from other class to reproduce at different times best scientific information available planktonic animals. The American eel over a period of many years, which (PBS&J 2008, pp. 2–9; MacGregor et al. undergoes several stages of increases the chances that some eels 2008, p. 2; Fenske 2009, p. 38; Mathers metamorphosis, from leptocephali to will encounter environmental and Stewart 2009, p. 359, Tremblay juveniles arriving in coastal waters as conditions favorable for spawning 2009, p. 85; Jessup 2010, p. 339; Velez- unpigmented ‘‘glass eels.’’ When Espino and Koops 2010, pp. 175–181). juvenile eels arrive in coastal waters, success and offspring survival. For example, variability in the maturation The extensive range of the American they can arrive in great density and with eel includes all accessible river systems considerable yearly variation (ICES age of eels born in 2006 may result in spawners throughout 2010 to 2030, and coastal areas having access to the 2001, p. 2). Glass eels metamorphose western North Atlantic Ocean and to (change) to pigmented ‘‘elvers’’ and then during which time favorable environmental conditions are likely to which oceanic currents would provide develop into ‘‘yellow eels,’’ occupying transport. As a result of oceanic occur at least once. marine, estuarine, and freshwater currents, the majority of American eels habitats. American eels begin sexual American eels are currently thought occur along the Atlantic seaboard of the differentiation at a length of about 20 to to be one, well-mixed, single breeding United States and Canada. The 25 centimeters (cm) (7.9 to 9.8 inches (panmictic) population (PBS&J 2008, pp. historical and current distribution of the (in)) and, depending on eel density, 2–9; MacGregor et al. 2008, p. 2; Fenske American eel within its extensive become male or female ‘‘silver eels.’’ 2009, p. 38; Mathers and Stewart 2009, continental range is well documented Upon nearing sexual maturity, these p. 359; Tremblay 2009, p. 85; Jessup along the United States and Canadian silver eels begin migration toward the 2010, p. 339; Velez-Espino and Koops Atlantic coast, and the SLR/LO. The Sargasso Sea, completing sexual 2010, pp. 175–181). This panmictic life- distribution is less well documented maturation en route. Spawning occurs history strategy maximizes adaptability and likely rarer, again due to currents, in the Sargasso Sea. It is hypothesized to changing environments and is well in the Gulf of Mexico, Mississippi that there is an abrupt temperature suited to species that have watershed, and Caribbean Islands, and change (referred to as a temperature unpredictable larval dispersal to many least understood in Central and South front) or other as-yet-unidentified habitats (e.g., marine, estuarine, and America. feature that serves as a cue for migrating freshwater). By not exhibiting The American eel is said to occupy adults to cease their long migration and geographic or habitat-specific the broadest diversity of habitats of any begin spawning (Friedland 2007, p. 1). adaptations, eels have the ability to fish species (Helfman et al. 1987, p. 42). After spawning, the adults die; a species rapidly colonize new habitats and to During their spawning and oceanic with this life-history trait is known as a recolonize disturbed ones over wide migrations, eels occupy salt water, and semelparous species. geographical ranges. The consequence in their continental phase, use all In our 2007 12-month finding, we of panmixia to the species’ ability to salinity zones: fresh, brackish, and explained that the American eel is one withstand human-caused activities is marine (for detailed habitat use by life of 15 ancient species, evolving about 52 captured in the following passage by stage, see Cairns et al. 2005), and some million years ago, of the worldwide Aoyama (2009, p. 32): ‘‘with a panmictic eels move between fresh and brackish genus Anguilla. The American eel is a population structure, overharvesting water several times throughout their life highly resilient species with plastic life- eels in one area likely will not affect (Thibault et al. 2007, p. 1106; Jessup et history strategies allowing individuals subsequent recruitment to that al. 2008, p. 210). Barring impassable to adapt to varying conditions. For particular area because new recruits will natural or humanmade barriers, eels example, to successfully complete the arrive randomly from spawners that occupy all freshwater systems, migration from the continent to the originated from other areas.’’ including large rivers and their

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tributaries, lakes, reservoirs, canals, well, they remain in the millions, that (A) The present or threatened farm ponds, and even subterranean recruitment trends appear variable, but destruction, modification, or springs. The eel’s anguillid (eel-shaped) stable, and that threats acting individually or curtailment of its habitat or range; body form allows it to climb when at in combination do not threaten the species at (B) Overutilization for commercial, a population level. On the basis of the best young stages and under certain available scientific and commercial recreational, scientific, or educational conditions (e.g., rough surfaces), information, we conclude that the American purposes; enabling it to pass up and over some eel is not likely to become an endangered (C) Disease or predation; barriers encountered during upstream species within the foreseeable future (D) The inadequacy of existing migrations in freshwater streams (Craig throughout all or a significant portion of its regulatory mechanisms; or 2006, pp. 1–4). Eels are able to survive range and is not in danger of extinction (E) Other natural or manmade factors out of water for an exceptionally long throughout all or a significant portion of its affecting its continued existence. time (eels can meet virtually all their range. Therefore, listing of the American eel In considering what factors might as threatened or endangered under the Act is oxygen needs through their skin), as not warranted (72 FR 4967, p. 4997).’’ constitute threats, we must look beyond long as they are protected from drying the mere exposure of the species to the (for which their ability to produce The Service acknowledged uncertainties factor to determine whether the species mucus is of great adaptive significance). while evaluating the best available data responds to the factor in a way that Eels have been seen using overland during the status review (72 FR 4967, causes actual impacts to the species. If routes (while moist) when they pp. 4977–4978) and concluded that there is exposure to a factor, but no encounter a barrier, which explains ‘‘mortality during outmigration due to response, or only a positive response, their entrance into landlocked waters parasites and contaminants, and the that factor is not a threat. If there is (Tesch 2003, pp. 184–185) and their potential effects of contaminants on exposure and the species responds presence above numerous dams and early life stages, remain a concern,’’ but, negatively, the factor may be a threat, weirs (Service 2005b, pp. 16–18). ‘‘we have no information indicating that and we then attempt to determine how No rangewide estimate of abundance these threats are currently causing or are significant a threat it is. If the threat is exists for the American eel. Information likely to cause population level effects significant, it may drive or contribute to on demographic structure is lacking and to the American eel’’ (72 FR 4967, p. the risk of extinction of the species such difficult to determine because the 4996). The Service suggested that that the species may warrant listing as American eel is panmictic (see above), ‘‘future research should focus on: The threatened or endangered as those terms with individuals randomly spread over effects of contaminants on outmigration are defined by the Act. This does not an extremely large and diverse and spawning success and egg viability; necessarily require empirical proof of a geographic range, and with growth rates the effects during outmigration, threat. The combination of exposure and and sex ratios determined by the contributors to prevalence of, and some corroborating evidence of how the environmental conditions they prevention and/or treatment of, the species is likely impacted could suffice. encounter. Because of this unique life exotic nematode, Anguillicola crassus; The mere identification of factors that history, site-specific information on eels and improving the success and cost of could impact a species negatively may must be evaluated in context of its downstream passage. In addition, future not be sufficient to compel a finding significance to the entire species. assessments and measuring the success that listing may be warranted. The Determining status trends is challenging of conservation actions would be information shall contain evidence because the relevant available data are improved by the collection of sufficient to suggest that these factors limited to a few locations that may or information useful for population may be operative threats that act on the may not be representative of the species’ dynamics and an increased species to the point that the species may range. Little information exists about understanding of how oceanic meet the definition of threatened or key factors such as mortality and conditions affect larval distribution and endangered under the Act. recruitment that could be used to abundance’’ (Bell in litt. 2007, p. 1). In making this 90-day finding, we develop an assessment model. The Service’s 2007 status review, evaluated whether the information (Recruitment refers to juveniles documented in our 12-month finding regarding threats to the American eel surviving and being added to the (72 FR 4967), is, to date, the most found in the petition and in our files, population.) In the American eel, comprehensive analysis of the American including our 2007 12-month finding, is recruitment is typically measured by eel’s rangewide status. The Service will substantial, thereby indicating that the counting glass eels as they reach coastal use the 2007 status review as baseline petitioned action may be warranted. Our waters. Furthermore, the ability to make information in the evaluation of the evaluation of this information is inferences about the species’ viability CESAR petition as well as other presented below. based on available trend information is information that has become available hampered without an overall estimate of since the 2007 12-month finding and A. The Present or Threatened eel abundance (i.e., no abundance data prior to the receipt of the petition. Destruction, Modification, or Curtailment of Its Habitat or Range exist for the estuarine and saline Evaluation of Information for This habitats). Despite these challenges, the Finding Information Provided in the Petition Service determined in its 2007 12- month status review (72 FR 4967) that Section 4 of the Act (16 U.S.C. 1533) The petitioner asserts the American the entire American eel population and its implementing regulations at 50 eel is threatened by loss of habitat or appeared stable over the long-term. CFR part 424 set forth the procedures range and reductions in habitat (ASMFC The 2007 12-month finding for adding a species to, or removing a 2009, NatureServe 2004), stating concluded: species from, the Federal Lists of ‘‘significant anthropogenic [manmade] Endangered and Threatened Wildlife changes within the range have reduced ‘‘we find that the American eel remains and Plants. A species may be the accessible habitat by percentages widely distributed over their vast range including most of their historic freshwater determined to be an endangered or perilously close to 100 percent in some habitat, eels are not solely dependent on threatened species due to one or more places’’ (Petition, p. 17). The petitioner freshwater habitat to complete their lifecycle of the five factors described in section asserts that ‘‘these reductions in habitat utilizing marine and estuarine habitats as 4(a)(1) of the Act: and their causes can have a cascading

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adverse effect on eel populations’’ distribution. The Service found in the letter from the Service to the City of (Petition, p. 17). The petitioner also 2007 12-month finding that spawning Raleigh indicating impacts to the Little asserts that freshwater riverine systems and ocean habitats were not impacted River in North Carolina if projected are the most important habitat for eels by significant threats and that American water supply and disposal projects and that ‘‘While it is possible that some eels used estuarine, marine, and proceed (USFWS in litt. 2009b). eels spend their entire life cycle in salt freshwater habitats, including exclusive However, we have no information to water, oceanic research indicates such use of marine and estuarine habitats by suggest that these two localized behavior is rare and virtually some eels (72 FR 4967, p. 4983). examples are indicative of rangewide nonexistent; catch data from Although extensive loss of historical impacts to freshwater habitat. commercial trawling confirms freshwater habitat has occurred due to Throughout the freshwater range of empirically that this is rare. Certainly human-induced barriers (i.e., dams the American eel, new eel passage the marine component is small and at constructed for hydroelectric, water projects (since 2007) have been best an unknown and unquantified life supply, and recreational purposes), any completed or are planned. While strategy which provides little population-level impacts have likely upstream passage facilities are not foundation for reliance on it as a basis already been realized and there is no present everywhere within the for sustaining the American eel indication of future barrier construction American eel’s range (Minkkinen and production’’ (Petition, p. 17). The that would further limit freshwater Park 2007, p. 1) and existing upstream petitioner also provides summary habitat (72 FR 4967, p. 4983). The passage facilities do cause some information regarding freshwater stream ‘‘American eel remains well-distributed mortality, more American eels are habitat loss due to obstructions (i.e., throughout roughly 75 percent of its passed into the upper reaches of dams) and some eel abundance and historical range, mainly in the lower watersheds now than prior to 2007. For density observations throughout the reaches of the watersheds,’’ and example, an eel passage project was coastal range of the species (Petition, although American eel abundance has completed at the Roanoke Rapids Dam pp. 19–21). been more affected by barriers than has in North Carolina (American Eel Working Group (AEWG) 2010, p. 1; Evaluation of Information Provided in distribution, ‘‘there is no evidence that the reduction in densities has resulted Roanoke Rapids and Gaston 2010, p. 2). the Petition and Available in Service Eel passage projects are in variable Files in a negative population-level effect such as a reduction in glass eel stages of planning and construction in The petitioner restated much of the recruitment. Analyses of local and other watersheds, including in the information provided in the Service’s regional declines in abundance do not Potomac River watershed (Chesapeake 2007 12-month finding (72 FR 4967), temporally correlate with the loss of Bay Field Office (CBFO) 2009, p. 1); at along with information from a few access to freshwater habitat’’ (72 FR the Stevenson Dam on the Housatonic sources published after the 2007 12- 4967, p. 4983). The 2007 12-month River and the Taftville Dam on the month finding. However, most of these finding concluded that freshwater, Shetucket River in Connecticut ‘‘new’’ sources of information, while estuarine, and marine habitats were (Connecticut Department of published after the 2007 12-month sufficient to sustain American eel Environmental Protection (CTDEP 2009, finding, summarize the same historical populations, and the present or p. 4)); at the Millville, Warren, and information regarding habitat loss and threatened destruction, modification, or Luray Dams on the Shenandoah River in degradation available to, and considered West Virginia (Eyler et al. 2008, slide 4; curtailment of its habitat or range was by, the Service for the 2007 12-month Welsh 2008, slide 22); in the Piedmont not a threat to the American eel (72 FR finding (see Busch et al. 1998 cited in region of South Carolina (Rohde et al. 4967, pp. 4983, 4996). ASMFC 2009, Maryland Department of 2008, p. 82); in the Santee River Basin Natural Resources 1999, NatureServe In addition to the baseline in South Carolina (Santee River Basin 2004). The petitioner cited information information in the Service’s 2007 12- Accord 2008, pp. 6–7); and in Quebec from a book ‘‘Eels at the Edge’’ month finding, new information in the and Ontario Provinces, Canada (Casselman and Cairns 2009). This Service’s files at the time of the receipt (Verreault et al. 2009b, p. 21). Although entire book was unavailable to the of the petition continues to demonstrate the success of ladder placement to authors of this 90-day finding to analyze that American eels persist in all three minimize entrainment (the process by since the petitioner did not provide the habitat types, despite localized impacts. which aquatic organisms, suspended in requested copy and the entire book did In some instances, the new information water, are pulled through a pump or not become available from the Service’s suggests that American eels do more other device (Webster’s On-line files until after the 90-day finding was than just ‘‘persist’’ in estuarine and Dictionary, 2011)) is specific to each drafted; however, the book is actually a coastal marine waters; in fact, those dam (McGrath et al. 2009, p. 1), compilation of papers, many of which habitat types may be even more American eels can show a positive, (e.g., Weeder and Uphoff (2009) and important to American eels than we quick response to the placement of Welsh and Hammond (2009)) were previously thought (Machut et al. 2007, ladders and use them to swim past/over available and analyzed by us for this 90- p. 1707; Jessup et al. 2008, p. 210; barriers (Cairns et al. 2008, p. 2; day finding. The complete Casselman Cairns 2009, p. 74; Fenske 2009, p. 75; Schmidt et al. 2009, p. 718). and Cairns (2009) book will be ICES 2009, p. 1; Jessup et al. 2009, pp. Since 2007, more studies on the evaluated during the new 12-month 867–868; Jessup 2010, p. 328). Examples American eel’s use of freshwater, status review. of localized impacts to freshwater estuarine, and coastal marine waters The Service’s Factor A analysis in the habitat include a paper by Machut et al. have been completed. These studies 2007 12-month finding (72 FR 4967, pp. (2007, p. 1700) that suggests confirm that eels use all three habitat 4978–4983) reviewed spawning and urbanization in Hudson River tributaries types (Dutil et al., 2009, pp. 1979, 1981; ocean migration habitat; estuarine and impacts the invertebrate communities ICES 2009, p. 1) and that brackish (i.e., marine habitat; and freshwater habitat, used as food for the American eel and estuarine waters) and salt water are including lacustrine (lake) habitat, may be contributing to the reported important for American eel growth, in specifically Lake Ontario, and the decline of American eels from certain terms both of faster growth rates and impacts of barriers (including dams) on portions of their historic range, and a larger size of individuals, and

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productivity (Machut et al. 2007, p. passage projects. In addition, 2009, Weeder and Hammond 2009, 1707; Jessup et al. 2008, p. 210; Cairns information suggests that estuarine and Weeder and Uphoff 2009, MacGregor et 2009, p. 74; Fenske 2009, p. 75; ICES coastal marine habitats are readily used al. 2008, and Casselman and 2009, p. 1; Jessup et al. 2009, pp. 867– by, and may be more important to, the Marcogliese 2007. The ASMFC 2007 868; Jessup 2010, p. 328). For example, American eel than previously thought. (petitioner’s ASMFC 2008 citation) and Jessop et al. (2009, p. 866) found growth In our new 12-month status review, we ASMFC–AEPRT 2008 reports included rates of 3.2 times greater in American will, however, further investigate any raw landing data from 2007. eels that had resided primarily in new information on habitat destruction, As explained in the Service’s 2007 12- estuarine waters than those that had modification, or curtailment of the month finding, correlating landings data resided only in freshwater. Lamson et species’ habitat or range in relation to with long-term increases or decreases in al. (2009, pp. 310, 312) found that on current or projected population American eel population trends is average, eels grew in length 2.2 times declines. speculative at best, given the faster and gained weight 5.3 times faster multifaceted analysis required. This B. Overutilization for Commercial, in full-strength seawater than did analysis has not yet been conducted (72 Recreational, Scientific, or Educational freshwater residents (freshwater FR 4967, p. 4986). To determine the Purposes. residents took 2.4 times longer to reach impacts of commercial and recreational the silver eel stage). This rapid growth Information Provided in the Petition harvest at a population level, given the enhances many fitness-related aspects of assumption that the American eel is The petitioner asserts that American panmictic, the following factors must be fish demographics, including quicker eels are commercially harvested at all progression to reproductive capability taken into account: ‘‘(1) The level of juvenile and adult life stages and ‘‘it is individuals [that] are not subjected to and decreased vulnerability to undisputed that overutilization of predators, hastening the single fishing pressure; (2) the theory that American eel is now occurring across fishing of glass eels and elvers does not reproductive opportunity of these fishes the species’ range in the United States (Cairns et al. 2009, p. 2095). The necessarily represent a substantial loss of America’’ (Petition, p. 22). The to reproductive capacity of the species; mechanism behind, and the petitioner cites information from evolutionary advantage of, this rapid (3) the vast areas that remain unfished; ASMFC (2000) and Geer (2004) that and (4) the lack of evidence that there growth in saline environments (Cairns discuss reduction in commercial et al. 2009, p. 2095) and the latitudinal is a reduction in glass and elver landings from the historical levels of the recruitment rangewide’’ (72 FR 4967, p. variability in length and age at maturity mid 1970s and 1950, respectively. The of both males and females (Jessop 2010, 4986). petitioner also cites information from The petitioner states that the ASMFC p. 328) continues to intrigue the ASMFC Addendum II (2008) report Addendum II (petitioner’s ASMFC 2008 researchers. While there is no indication and 2007 harvest data from State citation, our ASMFC 2007 reference) that the importance of freshwater Compliance Reports (2008) that indicates that recreational fishing of habitat for American eel has document eel fisheries in almost all American eels stems from incidental diminished, recent information shows States and overall landings of eels bycatch by anglers, commercial bait for that estuarine (brackish) areas also decreasing over time. The petitioner sport fish such as striped bass, and some provide valuable American eel asserts that the ASMFC’s own records amount of bait use by recreational productivity partially due to the show a failure to implement protective fisherman (Petition p. 23). The ASMFC increased food availability and measures for American eels, including (2007, pp. 6–7) report does state that the decreased exposure to natural and restriction or reduction of harvest levels, NMFS Marine Recreational Fisheries anthropogenic mortality (Lamson et al. despite the ‘‘declines in abundance’’ Statistics Survey (MRFSS) for 2007 2009, p. 311). Some eels move between (Petition, p. 23). The petitioner also indicated that the recreational total salt water and brackish water and asserts that there is a level of catch was 139,731 American eel, which between brackish water and freshwater recreational harvest that also contributes represented a large increase from the several times within their lifetime prior to the decline of American eels 2006 total of 85,969 American eel. to outmigration to the Sargasso Sea (Petition, p. 23). However, the report goes on to state in spawning grounds (Jessup et al. 2008, p. a footnote to the catch data that the Evaluation of Information Provided in 210; Thibault et al. 2007, p. 1106). ‘‘MRFSS Data for American Eel are the Petition and Available in Service In summary, we find that the unreliable. 2005 Proportional Standard Files information provided in the petition, as Error (PSE) values for recreational well as baseline and other new The information cited in the petition harvest in Rhode Island, New Jersey, information in our files, does not is a compilation of historical Delaware, Maryland, Virginia, and present substantial scientific or information available to, and considered South Carolina are 98.1, 100, 96.6, 70.1, commercial information indicating that by, the Service in our 2007 12-month 100.5, 100, and 79.1, respectively’’ the petitioned action may be warranted finding, as well as more recent raw (ASMFC 2007, p. 7). This means that the due to the present or threatened landing data from years after the 2007 American eel recreational harvest data destruction, modification, or 12-month finding. For example, the could be drastically under or over curtailment of the American eel’s following references available in the counted depending upon the potential habitat or range. There is no evidence Service’s files or provided by the for error. that additional freshwater habitat is petitioner were published since 2007 We analyzed MRFSS information, being lost or modified rangewide but summarized historical data sets, the available from 1981, as part of our 2007 beyond the already documented results of which were already 12-month finding. Part of the data historical loss that was previously considered in the 2007 12-month analysis included evaluating the determined not to be a threat to the finding: Susquehanna River reliability of the MRFSS data, especially American eel. The new information Anadromous Fish Restoration given the margin for error noted in the indicates more freshwater habitat is Cooperative (SRAFRC) 2010, Clark ASFMC 2007 (p. 7) report. Our 2007 12- becoming available to the American eel 2009, DeLafontaine et al. 2009, Mathers month finding stated that ‘‘recreational with the installation of upstream and Stewart 2009, Overton and Rulifson harvest is either limited or nonexistent

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throughout most of the range of the for yellow and silver eels as a high low fat stores, and commercial and American eel,’’ and described the source priority, as this information would give recreational harvest, are causing fewer of the recreational harvest similarly to a more reliable indicator of population eels to reach their Sargasso Sea the petitioner’s categories (72 FR 4967, trends. spawning grounds (Petition, p. 26). The p. 4986). The 2007 12-month finding The petitioner’s assertion that the petitioner also asserts that the results of went on to describe the low levels of ASMFC failed to implement protective experiments (Gollock et al. 2005) recreational harvest throughout the measures for American eels, including conducted on European eels showing American eel’s range, the gear and catch restriction or reduction of harvest levels, evidence of decreased survival rate of restrictions put in place by the ASFMC despite the ‘‘declines in abundance’’ European eels infected with A. crassus member states to prevent unregulated (Petition, p. 23), will be addressed and exposed to hypoxic (reduced recreational harvest, and the limited under Factor D below. oxygen) conditions (associated with information about subsistence harvest In summary, we find that the warmer than normal water and bycatch (72 FR 4967, p. 4987). information provided in the petition, as temperatures) can be extrapolated to Through our analysis, we concluded in well as baseline and other new American eels (Petition, p. 26). The the 2007 12-month finding that ‘‘there information in our files, does not petitioner also asserts that eels infected are no data to suggest that subsistence present substantial scientific or with A. crassus that do survive the harvest, bycatch, and recreational commercial information indicating that migration to the Sargasso Sea will not harvest are having a significant impact the petitioned action may be warranted have the necessary fat stores to on American eel regionally or due to overutilization of the American successfully reproduce because the eels rangewide’’ (72 FR 4967, p. 4987). eel for commercial, recreational, may have used too much stored fat In addition to the ASMFC 2007 scientific, or educational purposes. energy swimming with impaired swim report, the outline of a Verreault et al. There is no evidence indicating that bladders (Petition, p. 27). The petitioner (2009b) report indicates that some harvest of American eels may be a threat also asserts the reduction in the number recreational harvest information for at the population level. While new of eels reaching the spawning grounds American eels in Canada may be population models are becoming will cause a long-term ‘‘allee effect’’ (an available. However, the recreational available, the continued reliance on effect of population density on harvest sections of the report for glass landings data remains problematic in population growth, by which there is a eel, yellow eel, and silver eel all state determining accurate population trends. decrease in reproductive rate at a very that there are ‘‘no data available’’ We will, however, further investigate low population density and a positive (Verreault et al. 2009b, pp. 5, 11). new information regarding relationship between population density In summary, at the time the petition overutilization of the American eel for and the reproduction and survival of was received, we had only the ASMFC commercial, recreational, scientific or individuals (Science-Dictionary.com 2007 report, which indicates that the educational purposes in our new 12- 2011)) because eels will be unable to little recreational harvest data that are month status review. find mates (Petition, p. 28). available may be unreliable, and the The petitioner did not assert that Verreault et al. 2009b report, which C. Disease or Predation. predation was a threat to the American indicates that there are no recreational Information Provided in the Petition eel. harvest data available in Canada. Therefore, because there is no new The petitioner asserts that the Evaluation of Information Provided in information about the potential impact American eel is threatened by the Petition and Available in Service of ongoing commercial harvest, and Anguillicola crassus, a parasite infesting Files monitoring and reporting of recreational the eel’s swim bladder (an internal gas- The Service’s 2007 12-month finding harvest continues to be limited or filled organ that regulates a fish’s discussed the latest laboratory research nonexistent throughout the range of the buoyancy) (Petition, pp. 23–28). The on the negative effects Anguillicola American eel, the conclusion from the swim bladder is used by the eel for crassus infection on European eel swim 2007 12-month finding that commercial vertical migration (defined as moving at capacity. Although A. crassus infection and recreational harvest does not impact different depths in the water column) causes physiological damage to the the American eel at the panmictic during its spawning migration (Petition, swim bladder, this damage is only a population level is reasonable. We will, p. 25). This parasite spread from its concern for silver eels during however, further investigate commercial native host, Japanese eels (Anguilla outmigration when buoyancy and depth and recreational harvest impacts to the japonica), to both the European control are needed for the presumed American eel in our new 12-month (Anguilla anguilla) and American eel deepwater migration to the Sargasso Sea status review. through the expanding eel trade (72 FR 4967, p. 4988). The 2007 12- New models for estimating abundance between countries and the eel month finding also discussed the of fish species are being developed, but aquaculture industry (Petition, p. 23). implications of this reduced swim due to the global and complex life- The parasite infects an eel’s swim capacity to outmigration and spawning history traits of the American eel and bladder and causes damage to the swim of American eel, and concluded that the difficulties inherent in simulating bladder, potentially affecting the eel’s there may be less of a potential impact those traits, as well as the models’ ability to reach the spawning ground in from A. crassus to American eel than to assumption limitations, no reliable the Sargasso Sea (Petition, p. 25). The European eel (72 FR 4967, p. 4988). The model for the American eel currently petitioner cites studies by Aieta and 2007 12-month finding concluded that exists, especially one that relies on Oliveria (2009) and Sokolowski and there was no apparent causal link harvest (i.e., landings) data (ASMFC– Dove (2006) documenting the spread of between the A. crassus parasite in AEPRT 2008, p. 2; ASMFC–AESAS A. crassus throughout the American individual American eel and 2008a, pp. 9–11; Cairns et al. 2008, p. eel’s range (Petition, pp. 24–25). The population-level effects, such as 3; MacGregor et al. 2008, p. 4; ASFMS– petitioner concludes that the effects of reduced recruitment of glass eels. AETC&SAS 2009c, p. 8). The ASMFC A. crassus, in combination with the However, the Service acknowledged (2008c, pp. 1–2) listed the need for a impacts of hydroelectric turbine that, because the effects of the parasite fishery-independent sampling program mortality, contaminant accumulation, are difficult to study under natural

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conditions, a level of uncertainty was migrations may occur at significant untempered transfer of information inherent in our conclusion. depths. The concern put forward by the specific to the European eel, to the New information readily available to petitioner is that, without a functioning American eel. the Service since the 2007 12-month swim bladder, such as those damaged There was no information provided finding and prior to receipt of the by A. crassus, eels cannot make vertical by the petitioner or new information in petition provides, as the 12-month migrations into or out of such depths. our files concerning the effects of finding anticipated, evidence of a Because our 2007 12-month finding predation on the American eel northerly extension of Anguillicola discussed the implications of A. crassus population. The 2007 12-month finding crassus distribution through New on the American eel, the new validation stated that individual American eels are England to eastern Canada (Rockwell et of A. crassus impacts is not substantial sometimes predated by birds of prey al. 2009, p. 483). Competing hypotheses information because the current and and piscivorous (fish-eating) fish, but continue as to whether colder anticipated impacts of the parasite on this level of predation does not impact temperatures will limit the spread of American eel were already analyzed at the species rangewide (72 FR 4967, p. this parasite (Aieta and Oliveira 2009, p. the species level. 4987). 234; Sjoberg et al. 2009, p. 2167) and Other new information presented by what effect A. crassus infection has on the petitioner and in the Service’s files In summary, we find that the the fat reserves required for successful suggests that physical barriers such as information provided in the petition, as migration (Petition, p. 26; Sjoberg et al. dams and natural waterfalls well as other information in our files, 2009, p. 2166). However, although new significantly reduce Anguillicola does not present substantial scientific or literature has been published since the crassus infection rates upstream commercial information indicating that 2007 12-month finding, some of these (Machut and Limberg 2008, p. 13). In the petitioned action may be warranted publications were based on research addition, recent genetic research into due to disease or predation. We will, results that were considered in the 2007 the population structure of A. crassus however, further investigate new 12-month finding. Other new indicates that the parasitic infestation information regarding the population- publications confirmed the presence of likely arose from long-range transfers of level impacts of A. crassus and A. crassus in a previously unexamined infected eels during eel stocking predation on the American eel in our area of the Upper Potomac River (Wielgoss et al. 2008, p. 3491), which new 12-month status review. drainage of the mid-Atlantic raises doubts about the petitioner’s D. The Inadequacy of Existing (Zimmerman and Welsh 2008, p. 34). assertion of A. crassus introduction via Regulatory Mechanisms The Service anticipated the spread of A. ballast water. crassus in the 2007 12-month finding. The petitioner cited research by Information Provided in the Petition The current and anticipated impacts of Gollock et al. (2005) asserting a In general, the petitioner asserts that generalized decreased survival rate due A. crassus, thus, were previously the Service, NMFS, Federal Energy to heightened mortality of Anguillicola addressed (e.g., Palstra 2007a). Regulatory Commission (FERC), U.S. crassus infected eels under hypoxic Therefore, the new validation of the Environmental Protection Agency conditions. However, these findings northerly invasion is not substantial (EPA), ASMFC, and Canada lack applied to eels living in Lake Balaton information because the current and adequate regulatory mechanisms under where dissolved oxygen may decrease anticipated impacts of the parasite on existing authorities to protect the rapidly overnight because of the American eel were already analyzed at American eel (Petition, pp. 28–35). The the species level. cessation of photosynthesis by petitioner cites a lack of follow-through The petitioner also asserts that new phytoplankton. Given the localized on ASMFC’s stated need for a stock research states that the eel’s vertical nature of this research, any migrations are limited by Anguillicola extrapolation of these findings to assessment, the Service’s and NMFS’ crassus, and this may affect population-level effects on American eel lack of specificity in their FY 2007–2011 outmigration (Sjoberg et al. 2009, p. is speculative at best. strategic plan and ‘‘Our Living Oceans’’ 2166). Reports such as Sjoberg et al. The petitioner, citing a paper documents, respectively (Petition, p. (2009) and Chow et al. (2009), while discussing extinction risk of the polar 28). The petitioner asserts an under- published since the 2007 finding, bear, suggested that the infections by reporting of the number of structures merely confirm information from Anguillicola crassus, together with other serving as barriers to American eels and laboratory studies analyzed in the 12- threats, may limit the probability of lack of ‘‘systematic effort to alleviate the month finding about the impacts of A. American eels finding a mate in the vast threat of dams’’ (Petition, p. 29), as well crassus on silver eels’ buoyancy and Sargasso Sea and that this ‘‘allee effect’’ as a failure of existing regulatory depth control during outmigration (72 will edge the species closer to extinction mechanisms to address the decline of FR 4967, p. 4988). Sjoberg et al. (2009, (Petition, p. 28). The allee effect is a American eels (Petition, p. 32). pp. 2165–2166) reports it appears that concept that has been discussed in Specifically, the petitioner asserts more heavily infected European eels relation to the European eel, which has there is inadequate regulation of were relatively more vulnerable to experienced significant recruitment hydroelectric power dams via recapture in pound nets; therefore, it is failure, but because there is no evidence implementation of legal authorities hypothesized by the authors that that significant recruitment failure may under the Federal Power Act on the part parasite-induced damage to the swim be occurring with American eel, this of the Service, NMFS, and FERC, and bladder inhibited vertical migrations, new assertion is speculative. Attributing via implementation of the Clean Water and infected European eels tended to effects seen in European eel to Act on the part of the EPA (Petition, p. migrate in shallower coastal waters, American eel (e.g., effects to spawning 32). The petitioner asserts these Federal relatively close to the shore. Chow et al. from A. crassus infection) was agencies have failed to provide ‘‘safe (2009, pp. 257–258) captured two discussed in the 2007 12-month finding. and efficient upstream and downstream Japanese eels at depths of greater than There is no new available information passage for American eels at 230 meters (m) (755 feet (ft)), confirming either provided by the petitioner or hydroelectric dams in the historic range at least for Japanese eel what has been found in the Service’s files that alters of the American eel in the United hypothesized for all Anguillicola, that the cautions in that finding against States.’’

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The petitioner also asserts the EPA American eels’ habitat or range is not a (p. 6); discusses the ASMFC Appendix has failed to adequately regulate the significant threat to the American eel II (petitioner’s ASMFC 2008 citation, disposition of ballast water under the rangewide and the Factor A section of our ASFMC 2007 reference), which Clean Water Act, which has led to the this 90-day finding above concludes emphasizes improving upstream and spread of Anguillicola crassus. The there is no substantial information downstream passage, and the decision petitioner cites several information indicating this may be a significant to delay in implementing further gear sources suggesting that the discharge of threat now. and size restrictions pending the ballast water is a likely mechanism for The petitioner asserts that the EPA outcome of the (delayed) 2010 stock the spread of A. crassus through has failed to adequately regulate the assessment (p. 7); discusses the planned intermediary hosts, as well as numerous disposition of ballast water under the Memorandum of Understanding other invasive species (Petition, p. 34). Clean Water Act, which has lead to the between ASMFC and the Great Lakes The petitioner asserts that the Service spread of Anguillicola crassus. The Fisheries Commission to improve joint did not address ballast water disposition petitioner states, ‘‘Numerous authors, as management of the American eel (p. 7); in the 2007 12-month finding. well as panelists in the 2004 FWS and reports that all States are in The petitioner also asserts that the sponsored workshop, pointed out that compliance with implementing the ASMFC has failed to limit or prohibit ballast water of ships is the most likely requirements of the American Eel the harvest of American eel on the mechanism for the rapid spread of the Fisheries Management Plan (p. 8). This Atlantic seaboard through their legal parasite from one location to another, summary list illustrates that ASMFC is authorities under the Magnuson-Stevens through the dispersal of its intermediate working with the States to implement Fisheries Conservation Act despite hosts’’ (Petition, p. 34). As explained conservation actions to limit eel ASMFC’s statement in 2004 above under Factor C, recent genetic harvests, identify current and future recommending the Service and NMFS research into the population structure of research priorities, and manage the eel consider protection of the American eel A. crassus indicates that the parasitic fishery by using the available under the Endangered Species Act infestation likely arose from long-range information appropriately (i.e., not (Petition, p. 34). transfers of infected eels during eel using harvest data to determine stocking (Wielgoss et al. 2008, p. 3491). Evaluation of Information Provided in abundance). Therefore, we find the This genetic research was completed the Petition and Available in Service petitioner’s assertion to be without after the 2007 12-month status review, Files merit. In addition, the Factor B section but took into account information from of the 2007 12-month finding (72 FR The petitioner states that the Service’s the 2004 Service workshop referenced 4967, p. 4987) concluded that Region 5 Fiscal Years (FYs) 2007–2011 by the petitioner. In addition, Factor C overutilization for commercial, Strategic Plan and NMFS’ Our Living in the 2007 12-month finding concluded recreational, scientific, or educational Oceans documents do little to that disease is not a significant threat to demonstrate the agencies’ ‘‘systematic purposes is not a significant threat to the American eel rangewide and the the American eel rangewide, and the effort to alleviate the threat of dams to Factor C section of this 90-day finding eels,’’ and quotes information from Factor B section of this 90-day finding above concludes there is no substantial above concludes there is no substantial those two documents as it pertains to information indicating this may be a the importance of habitat restoration. information indicating this may be a significant threat now. Therefore, there significant threat now. Because strategic plans for FYs 2007 to is no substantial information on the 2011 do not exist, we assume that the inadequacy of existing regulatory Factor D of the Service’s 2007 12- petitioner meant to cite the Northeast mechanisms associated with disease. month finding (72 FR 4967, pp. 4990– Region (i.e., Region 5) Fisheries Program The petitioner asserts that ASMFC 4991) extensively analyzed the existing Strategic Plan for FYs 2004–2008 failed to limit or prohibit the harvest of regulatory mechanisms that address fish (Service 2004b) or FYs 2009–2011 American eel on the Atlantic seaboard passage. The discussions of hydropower (Service 2009). That said, strategic plans through their legal authorities under the turbines in Factor E of the Service’s are broad-vision documents meant to Magnuson-Stevens Fisheries 2007 12-month finding (72 FR 4967, p. provide the general framework and Conservation Act: ‘‘The ASMFC has 4991) and below in this 90-day finding goals for separate stepped-down done little over the past decade acknowledge that American eels operational plans, which have the effectively to reverse the declines in eel experience some mortality at specificity that the petitioner notes the recruitment, halt commercial [fishing] hydroelectric power plant turbines. strategic plan lacks. For example, a and commercial take of American eels However, the 2007 12-month finding strategic plan may recommend the need for recreational use as bait, or concluded that mortality of individuals, for research and modeling to determine implement consistent methods to even thousands of individuals each the optimal path to achieve a specific accurately assess their population size year, while unfortunate, is not at a level goal. One such model is the habitat (ASMFC 2008; Taylor et al. 2008).’’ The that is a threat to the American eel suitability index (HSI) discussed by petitioner’s Taylor et al. 2008, citation is population rangewide. The Factor E Kocovsky et al. (2008), which prioritizes the same document discussed below section of this 90-day finding below the temporal sequence of dam removal with the ASMFC–AERPT 2008 citation; finds that there is not substantial in the Susquehanna River based on however, we disagree with the information to indicate that this may be suitable habitat conditions for target fish conclusion the petitioner draws from a significant threat now. The petitioner species, including the American eel. this document. The ASMFC–AERPT asserts that the Service, NMFS, and Because they do not prescribe any (2008, pp. 2–5) document reaffirms the FERC have declined to exercise their specific actions, the strategic plans do 2007 12-month finding’s conclusion that regulatory authorities under the Federal not constitute regulatory mechanisms, using harvest data to determine Power Act. The petitioner did not, and are not analyzed as such. The abundance is problematic (p. 1); reports however, provide any information Factor A section of the 2007 12-month that all States that harvest American eel under Factor D on how these agencies finding (72 FR 4967, p. 4983) concluded have gear or size limit restrictions in have failed to exercise their regulatory the present or threatened destruction, place to regulate the harvest (pp. 4–5); authorities. As explained further in modification, or curtailment of the identifies high-priority research needs Factor E below, several studies have

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recommended modifications to American eels and recruitment of the harvest, contaminants, and Anguillicola hydropower facilities for safer species (Petition pp. 35–36, 38). The crassus infection, are beyond American downstream eel migration (Carr and petitioner cites the Busch et al. (1998) eel’s adaptability (Petition, p. 39). Whoriskey 2008, p. 399; Durif and Elie paper, which states that of the 15,570 The petitioner also asserts unspecified 2008, pp. 135–136), and some facilities dams blocking America eel habitat in threats to the American eel from already implement these modifications the United States, 1,100 of these dams exposure to mercury, PCBs (Service 2007a, pp. 3–4; Eyler 2009, p. are used for hydroelectric power. The (polychlorinated biphenyls), and DDT 2; Service 2009, pp 6–10; Verreault et al. petitioner further asserts that few of (dichlorodiphenyltrichloroethane). The 2009a, p. 21) with variable levels of these 1,100 dams provide safe passage petitioner cites reports from the ASMFC success. Factor D of the Service’s 2007 for migrating female American eels, (2000) and the Vermont Fish and 12-month finding (72 FR 4967, p. 4991) which results in the death of virtually Wildlife Department (2008) concluded that ‘‘turbines can cause all female eels attempting to migrate. documenting the presence of these regional impacts to abundance of The petitioner also cites other papers contaminants in eel samples. The American eels within the watershed, but that include information about dam- petitioner also mentions elevated levels there is no evidence that turbines are specific mortality rates (Petition, pp. of mercury in streams from coal-burning affecting the species at a population 37–38). All of these cited papers were electric power generators and acid rain level (for full discussion of turbine published prior to, and considered in, causing stream acidification and fish impacts see Factor E). Therefore we find the Service’s 2007 12-month finding. kills (Petition, p. 40); however, the that the regulations governing fish The petitioner also asserts that petitioner neither provides citations for passage are adequate for the protection changes in oceanic conditions resulting this information nor explains how it of American eel.’’ from global warming (i.e., climate demonstrates a threat to American eel. We have no information in our files change) are contributing to the Lastly, the petitioner asserts that or provided by the petitioner on any worldwide decline of eel species, electro-magnetic fields from submarine regulatory mechanisms to address the including the American eel (Petition, p. cables, acoustic disturbance from threat of changes in oceanic conditions 38). The petitioner asserts that changes offshore wind development, and biofuel due to climate change discussed in in sea surface temperature (SST) and production from floating biomass Factor E below. We will, however, shifts in latitudinal isotherms (a line (including sargassum) harvested from further investigate this in our new 12- that connects points on a map that have gyres in the open ocean are emerging month status review. the same temperature) are impacting the threats to the American eel. Although As discussed in Factor E below, we productivity of the eel’s spawning area, the petitioner provided citations for the have no information indicating that changing the northern extent of the acoustic disturbance from off-shore electro-magnetic fields, acoustic Sargasso Sea spawning area, and wind development (Oham et al. 2007) disturbance, and the harvest of seaweed affecting the transportation and survival and biomass harvesting (Markels 2009), for biofuel are significant threats to the rates of leptocephali (Petition, p. 38). the petitioner did not explain how any American eel. We will, however, further The petitioner, citing new research of these factors poses a threat to the investigate these activities and related to the European eel, asserts that American eel (Petition, p. 40). regulatory mechanisms in our new 12- this new information could also apply Evaluation of Information Provided in month status review. to the American eel. For example, citing In summary, we find that the the Petition and Available in Service Friedland et al.’s (2009) conclusion that Files information provided in the petition, as changes in SST are impacting well as other information in our files, transportation and larval retention Hydropower does not present substantial scientific or (amount of time the larvae stay in the The petitioner discussed the results commercial information indicating that current) of European eels, the petitioner from a selection of citations on the the petitioned action may be warranted asserts that, given the close proximity of effects of hydropower turbines, most of due to the inadequacy of existing the two spawning areas in the Sargasso which were assessed for, but may not regulatory mechanisms. We will, Sea, this change in SST could also affect have been specifically cited in, the however, further investigate new American eels (Petition, pp. 38–39). Service’s 2007 12-month finding. While information regarding existing Citing Bonhommeau et al. (2008), the some of these citations may have been regulatory mechanisms for the petitioner asserts that the authors linked published after the 2007 12-month American eel in our new 12-month global warming to eel declines via finding, the data the citations examine status review. decreased productivity and recruitment. are either from prior to the 2007 12- E. Other Natural or Manmade Factors The petitioner asserts the ‘‘worldwide month finding or merely describe an Affecting Its Continued Existence recruitment decline in freshwater additional year of data in an ongoing anguillid populations began almost study. Therefore, we conclude that this Information Provided in the Petition simultaneously in the 1980s. While type of information in the petitioner’s The petitioner asserts that Atlantic there are many factors that have referenced citations offers no seaboard river systems are the ‘‘sole contributed to this decline, recent significant, additional value for this 90- migratory pathways for female analyses point to oceanic changes as day finding. In the Service’s 2007 12- American eels to gain access to their being the more likely factor driving this month finding, the range and rates of required freshwater habitat’’ (Petition, p. trend (Bonhommeau et al. 2008, impacts from various turbine types to 35). The petitioner states both upstream Friedland et al. 2007’’ (Petition, p. 39). various sizes of eels (see synopsis of the (discussed under Factor A) and The petitioner also asserts that although Electric Power Research Institute report downstream river habitat used by the American eel may have been at 72 FR 4967, pp. 4991–4992) were American eels are fully or partially resilient to environmental changes thoroughly analyzed and discussed. blocked by numerous hydroelectric throughout its evolutionary history, the Contrary to the assertions of the power dams and the impact of those rapid changes in the ocean environment petitioner that virtually all female eels dams (i.e., turbine mortality) has a combined with the ongoing impacts of attempting to migrate are killed, the disproportionate impact on female habitat loss, hydroelectric dams, 2007 12-month finding found rates of

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mortality ranging from 25 to 50 percent In addition to turbine mortality, there was ‘‘no indication that the when one turbine is encountered during several papers have documented American eel was at a reduced level outmigration, and 40 to 60 percent individual eels exhibiting altered search where this natural oceanic variation when one or more turbines are pattern behavior when physically would significantly affect the species’’ encountered (72 FR 4967, p. 4992). This encountering power plant facilities (i.e., and ‘‘natural oceanic conditions were level of mortality, the 2007 12-month bar racks, bypass structures, etc.) not currently, or anticipated to be in the finding explains, leaves escapement (Jansen et al. 2007, pp. 1440–1442; Carr future, a significant threat to the values (the percent of individuals that and Whoriskey 2008, p. 397; Durif and American eel at a population level’’ (72 survive to continue outmigration) of a Elie 2008, p. 208; Eltz et al. 2008, p. 29; FR 4967, p. 4995). minimum of 40 percent and a maximum Brown et al. 2009, p. 285; Calles et al. Since the 2007 12-month finding, and of 75 percent. The 2007 12-month 2010, pp. 2175–2178). This search prior to receipt of the petition, finding states that only 4.5 percent of pattern behavior has delayed (hours to additional research has been conducted the 33,663 dams on the Atlantic coast weeks) some eels’ outmigration. As on the effects of climate change on have hydropower, leaving significant described above in the hydropower oceanic conditions and the correlation areas of freshwater habitat turbine-free, turbine section, a significant number of of those changes to European and and that the portion of the population eels successfully migrate, and migration American eel recruitment. The impacts that inhabits estuarine and marine occurs in a normal temporal sequence. of climate change may be affecting waters is largely unaffected. The 2007 While delayed migration occurs in some European and American eel recruitment 12-month finding concluded that, individuals, there is no information in in three ways: (1) Shifts in spawning although mortality from turbines is our files indicating that this may be a locations within the Sargasso Sea, (2) evident and can be substantial in some threat to the overall population of reduced food availability for cases, there is no evidence that this American eel rangewide. leptocephali, and (3) shifts in where the mortality is a significant threat to the leptocephali enter and exit the ocean Changes in Oceanic Conditions Due to currents to their continental habitats. American eel at a rangewide population Climate Change level (72 FR 4967, p. 4992). With regard to spawning locations, in The Service’s 2007 12-month finding March 2007, after the publication of the New information in the Service’s files explored the relationship between 2007 12-month finding, Friedland et al. continues to support the escapement oceanic conditions and the successful (2007, pp. 1, 6) published correlative figures presented in the 2007 12-month maturation and transportation of data indicating that climatic changes in finding. Research conducted in 2007 leptocephali within ocean currents from the Sargasso Sea may be influencing and 2008 on the Shenandoah River in the Sargasso Sea and, therefore, oceanic reproduction and larval (i.e., the mid-Atlantic region showed a 47 recruitment of glass eels at coastal and leptocephali) survival in European eels. percent survivorship of eels that migrate riverine habitats. We stated that oceanic The authors found evidence of a out of the Shenandoah River from above conditions, which are highly variable northern shift in the temperature front the Shenandoah Dam. The study also and cyclical, likely play a significant that defines the northern boundary of identified decreased mortality during role in the population dynamics of the the European eel spawning ground the seasonal shutdown of the American eel (72 FR 4967, p. 4995), but within the Sargasso Sea, which ‘‘may hydropower facility that was designed at the time of the 2007 status review, the affect the location of spawning areas by to protect downstream migrating eels. relationships between specific oceanic silver eels and the survival of However, 64 percent of migrants moved conditions and eel recruitment leptocephali during the key period downstream outside the recommended remained almost entirely hypothetical. when they are transported towards the seasonal shutdown period, suggesting We acknowledged that our information Gulf Stream.’’ Friedland et al. (2007, p. that additional revisions to dam was scant and, therefore, turned to 6) stated: ‘‘Our finding provides operations could improve these oceanic and eel experts to better evidence of linkages between declines mitigation efforts (Welsh et al. 2009, p. understand the complex relationships in recruitment of the European eel and 20). Ongoing research continues to between various oceanic conditions and specific environmental changes improve such mitigation efforts through eel recruitment. [thermal, wind, and mixing parameters] improving escapement rates. Research The types of oceanic conditions that within the spawning and early larval also continues on the influence of had the potential to affect eels in the development areas of eels in the environmental variables (such as stream North Atlantic, we stated, include: ‘‘(1) Sargasso Sea.’’ Their analysis went on to flow, water temperature, and lunar changes to sea surface temperatures suggest that a number of oceanic phase) on downstream migration (SSTs); (2) changes to mixed layer depth condition parameters have changed in (Jansen et al. 2007, pp. 1442–1443; (MLD) (the depth to which mixing is the Sargasso Sea and, because of the Hammond and Welsh 2009, pp. 319– complete, relative to the layer of ocean proximity of spawning areas of 320; Welsh et al. 2009, pp. 20–22). This water beneath it); (3) deflections of the European and American eel, they work will inform turbine operations and Gulf Stream at the Charleston Bump, off hypothesized that American glass eel the assessment of success rates of other Cape Hatteras; and (4) other changes (72 recruitment could also be affected mitigation measures, such as controlled FR 4967, p. 4994).’’ Changes in SSTs (Friedland et al. 2007, pp. 7–10). spillage, diversions, and trap and include inhibition of spring mixing, and With regard to larval food availability, transport of silver eels downstream of nutrient recirculation and productivity, in 2008, Bonhommeau et al. (2008a, hazards such as turbines (McCarthy et which may influence leptocephali (i.e., 2008b) published two papers that al. 2008, p. 122). While the results of larval) food abundance (72 FR 4967, pp. causally linked fluctuations in this research may further improve 4994–4995). We concluded that there European, American, and Japanese glass downstream passage for American eels, was no indication that the American eel eel recruitment, as measured on arrival there is no information in our files was suffering rangewide abundance or to continental waters, to larval food indicating that the level of existing distributional collapse and the species availability. Larval food availability downstream passage may be a threat to was evolutionarily adapted to oceanic impacts the survival of larvae during the overall population of the American variations (at the time, thought to be their ocean migration from the Sargasso eel rangewide. within normal variations). Therefore, Sea to continental waters. The authors

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examined the relationships between eel and the European eel appears to The findings stated by Bonhommeau glass eel recruitment (measured at the have been moving to the north in recent et al. (2008a, 2008b), Friedland et al. Loire River in France for European eels years and this may cause the silver eels (2007), Miller et al. (2009) and and Little Egg inlet in New Jersey and to spawn slightly farther north. Shifting Tsukamoto (2009), coupled with the Beaufort inlet in North Carolina for spawning grounds may affect where climate change projections indicating American eels) and marine primary leptocephali enter and subsequently continued, accelerated rates of human- production (PP) (the production of leave the ocean currents used for induced temperature increases into the organic compounds from atmospheric or dispersal and may, therefore, negatively future (IPCC 2007), may change our aquatic carbon dioxide) in the Sargasso affect coastal recruitment of American 2007 12-month finding’s (72 FR 4967, p. Sea spawning areas. In this study, PP eels (Tsukamoto 2009, p. 1846). 4995) conclusion. Specifically, these was used as a proxy for leptocephali The Intergovernmental Panel on findings may change our previous food availability. Bonhommeau et al. Climate Change (IPCC) 2007 synthesis conclusion that current and projected (2008b) found that SST influences PP report provides an ‘‘integrated view of oceanic conditions are within normal and that, specifically in the Sargasso climate change as the final part of the variations to which the American eel is Sea, increasing SSTs led to a decrease IPCC’s Fourth Assessment Report’’ evolutionarily adapted (i.e., one of the in PP (i.e., a decrease in eel food (IPCC 2007, p. 26). The synthesis report conclusions discussed in the second availability). Therefore, Bonhommeau et covers several topics including the paragraph of this section ‘‘Changes in al. (2008b) theorized, the warmer the observed changes in climate and effects Oceanic Conditions Due to Climate Sargasso Sea, the lower the European on natural and human systems, causes Change’’). Therefore, we find that and American eels’ recruitment. (e.g., anthropogenic vs. natural) of the information provided by the petitioner Bonhommeau et al. (2008b, p. 75) stated observed changes, and projections of and information in our files present that fluctuations in the Sargasso Sea future climate change and related substantial information with regard to SSTs followed the same trends as impacts under different scenarios. The the potential for global warming to anomalies of temperature across the IPCC defines climate change as ‘‘a affect the status of the American eel in Northern Hemisphere, which suggested change in the state of the climate that the future. a direct link between global warming can be identified (e.g., using statistical Contaminants and the increase in SST. They tests) by changes in the mean and/or the concluded by suggesting that a subtle We found the petitioner did not variability of its properties, and that provide any substantive new increase in temperature may have persists for an extended period, dramatic effects on leptocephali, given information regarding contaminants typically decades or longer. It refers to affecting the American eel population. the length of their oceanic migration. any change in climate over time, Also with regard to larval food The Service’s 2007 12-month finding whether due to natural variability or as availability, Miller et al. (2009, pp. 235– discussed and analyzed the impacts of a result of human activity’’ (IPCC 2007, 238) state that although Anguillid eel existing contaminants, new and p. 30). populations can likely survive wide- emergent contaminants, other persistent ranging changes in oceanic and The IPCC 2007 report unequivocally and nonpersistent contaminants, continental climates (given that Atlantic states that there is a warming of the complex mixtures of contaminants, eels (European and American eels) have climate system as evidenced by vitamin deficiency, and combined survived ice ages), the current lower observed increases in global average air threats such as disease, parasite recruitment levels (which may be and ocean temperatures (p. 30), that the infection, and contaminants on the explained in part by oceanic conditions) increase in anthropogenic greenhouse American eel population (72 FR 4967, put the European eel at risk. The gas (GHG) concentrations are very likely pp. 4992–4994). In summary, authors conclude with ‘‘If increases in the cause of increased global average contaminants may impact individual or temperature reduce productivity enough temperatures since the mid-20th century local populations of American eel. to affect the feeding success of (p. 39), and that ‘‘for the next two However, we cautioned against ° leptocephali, then a continued global decades a warming of about 0.2 C per extrapolating preliminary laboratory warming trend is an additional decade is projected for a range of SERS studies to rangewide implications, given concern’’ (p. 245). [Special Report on Emission Scenarios] the lack of evidence of correlations With regard to shifts in leptocephali emission scenarios. Even if the between known contamination of transport by currents, recent research concentrations of GHG and aerosols had specific river systems and results for the Japanese eel indicate that been kept constant at year 2000 levels, corresponding localized declines (72 FR the latitudinal (north to south) location a further warming of about 0.1 °C per 4967, p. 4994). Dittman et al. (2009, p. of spawning events can shift depending decade would be expected. Afterwards, 48) documented PBDE (polybrominated on oceanic conditions, and temperature projections increasingly diphenyl ether) contaminants in some subsequently have the potential to depend on specific emission scenarios’’ American eels, but the authors noted negatively affect coastal glass eel (p. 45). While there is uncertainty when that these contaminants were in lower recruitment (Tsukamoto 2009, p.1846). applying the global IPCC findings at concentrations than previously Citing Kettle and Haines (2006) and some regional scales, the general discussed PCBs and had unknown Friedland et al. (2007), Tsukamoto conclusions stated above are fairly effects. In addition, the Deepwater states that the exact spawning location robust (IPCC 2007, pp. 72–73). This Horizon (Mississippi Canyon 252) oil of the European eel and consequently climate change information, coupled well blowout and uncontrolled oil the American eel since the two species with the suggested impacts on sea release began 10 days prior to the share the same spawning ground, also conditions and coastal eel recruitment, receipt of CESAR’s petition. We have no appears to have the potential to affect is substantial enough to find that it may information about the possible impacts where larvae may eventually recruit as pose a significant threat to the American of the oil release on American eels at a glass eels in their respective continental eel. We will fully investigate all climate population level; however, we will waters. In the Sargasso Sea, the change information, including any evaluate any new information regarding temperature front at the northern edge regional scale data, in our 12-month potential impacts to the species during of the spawning area for the American status review. our status review. In summary, while

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we did have information on of habitat or range), B (overutilization DEPARTMENT OF COMMERCE contaminants occurring in individual for scientific, commercial, or eels, this is not substantive information educational purposes), C (disease or National Oceanic and Atmospheric on the effects of contaminants on the predation), D (inadequacy of existing Administration overall American eel population. regulatory mechanisms), and E Although the petitioner asserted (hydropower turbines, contaminants, 50 CFR Part 622 effects to the American eel from electro- electro-magnetic fields, acoustic RIN 0648–BB33 magnetic fields, acoustic disturbance, disturbance, or seaweed harvesting) is and the harvest of seaweed for biofuel, not substantial. Fisheries of the Caribbean, Gulf of the petitioner did not provide any data Mexico, and South Atlantic; Coastal and we have no information in our files Because we have found that the Migratory Pelagic Resources in the to support the claims. Therefore, we petition presents substantial Gulf of Mexico and Atlantic Region; find the assertions to be speculative and information indicating that listing the Amendment 18 not a sufficient basis to conclude that American eel may be warranted, we are any of these may pose a significant initiating a status review to determine AGENCY: National Marine Fisheries threat to the American eel. whether listing the American eel under Service (NMFS), National Oceanic and the Act is warranted. Atmospheric Administration (NOAA), Summary of Factor E Commerce. The ‘‘substantial information’’ We find that the information provided ACTION: Notice of availability; request in the petition, as well as other new standard for a 90-day finding differs for comments. information in our files, presents from the Act’s ‘‘best scientific and substantial scientific or commercial commercial data’’ standard that applies SUMMARY: NMFS announces that the information indicating that the to a status review to determine whether Gulf of Mexico (Gulf) and South petitioned action may be warranted by a petitioned action is warranted. A 90- Atlantic Fishery Management Councils a causal link between oceanic changes day finding does not constitute a status (Councils) have submitted Amendment (increasing sea surface temperature with review under the Act. In a 12-month 18 to the Fishery Management Plan for a corresponding shift in spawning finding, we determine whether a the Coastal Migratory Pelagic Resources location, decrease in food availability, petitioned action is warranted after we in the Gulf of Mexico and Atlantic or shift in leptocephali transport by have completed a thorough status Region (FMP) for review, approval, and implementation by NMFS. The currents, tied to global warming) and review of the species, which is amendment proposes actions to remove decreasing glass eel recruitment. We conducted following a ‘‘substantial’’ 90- will further explore any current or species from the FMP; modify the day finding. Because the status review framework procedures; establish two future population level impacts that may provide additional information, may result from climate change in our migratory groups for cobia; and and because the Act’s standards for 90- establish annual catch limits (ACLs), new 12-month status review. However, day and 12-month findings are different, we find that the information provided in annual catch targets (ACTs), and as described above, a ‘‘substantial’’ 90- the petition, as well as baseline and accountability measures (AMs) for king day finding does not mean that the other new information in our files, does mackerel, Spanish mackerel, and cobia. not present substantial scientific or status review will result in a In addition, Amendment 18 proposes to commercial information indicating that ‘‘warranted’’ finding. set allocations and establish control rules for Atlantic group cobia and revise the petitioned action may be warranted References Cited due to hydropower impacts, definitions for management thresholds contaminants, electro-magnetic fields, A complete list of references cited is for Atlantic migratory groups. acoustic disturbance, or the harvest of available on the Internet at http:// DATES: Written comments must be seaweed for biofuel. Information in our www.regulations.gov and upon request received on or before November 28, files and in the petition does not present from the Northeast Regional Office (see 2011. new information to change the Service’s FOR FURTHER INFORMATION CONTACT). ADDRESSES: You may submit comments previous conclusion in the 2007 12- on the amendment identified by month finding that hydropower and Author ‘‘NOAA–NMFS–2011–0223’’ by any of contaminants are not significant threats the following methods: The primary authors of this notice are • to the American eel population. We the staff members of the Northeast Electronic submissions: Submit electronic comments via the Federal will, however, investigate any new Regional Office. information regarding Factor E threats e-Rulemaking Portal: http:// that arises during the course of our new Authority: The authority for this action is www.regulations.gov. Follow the 12-month status review. the Endangered Species Act of 1973, as instructions for submitting comments. amended (16 U.S.C. 1531 et seq.). • Mail: Susan Gerhart, Southeast Finding Dated: September 21, 2011. Regional Office, NMFS, 263 13th On the basis of our determination Avenue South, St. Petersburg, FL 33701. under section 4(b)(3)(A) of the Act, we Daniel M. Ashe, Instructions: All comments received determine that the petition presents Director, U.S. Fish and Wildlife Service. are a part of the public record and will substantial scientific or commercial [FR Doc. 2011–25084 Filed 9–28–11; 8:45 am] generally be posted to http:// information indicating that listing the BILLING CODE 4310–55–P www.regulations.gov without change. American eel throughout its entire range All Personal Identifying Information (for may be warranted. This finding is based example, name, address, etc.) on information provided under factor E voluntarily submitted by the commenter (changes in oceanic conditions due to may be publicly accessible. Do not climate change). We determine that the submit Confidential Business information provided under factors A Information or otherwise sensitive or (habitat loss, degradation or curtailment protected information.

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To submit comments through the Currently two migratory groups of recommended by the Gulf Council’s Federal e-Rulemaking Portal: http:// king mackerel and Spanish mackerel are Scientific and Statistical Committee www.regulations.gov, click on ‘‘submit a established; the Gulf migratory group (SSC). They accepted ABC control rules comment,’’ then enter ‘‘NOAA–NMFS– and the Atlantic migratory group. The for Atlantic migratory groups of king 2011–0223’’ in the keyword search and Gulf Council determines management mackerel and Spanish mackerel based click on ‘‘search.’’ To view posted measures for the Gulf migratory groups on the control rule recommended by the comments during the comment period, and the South Atlantic Council South Atlantic Council’s SSC. For all enter ‘‘NOAA–NMFS–2011–0223’’ in determines management measures for species, Amendment 18 proposes ACLs the keyword search and click on the Atlantic migratory groups. equal to the ABC. For purposes of ‘‘search.’’ NMFS will accept anonymous tracking the ACL for king and Spanish Management Measures Contained in comments (enter N/A in the required mackerel, landings will be evaluated Amendment 18 field if you wish to remain anonymous). based on the commercial fishing year. You may submit attachments to Actions in Amendment 18 would Recreational landings for all Atlantic electronic comments in Microsoft Word, remove four species from the FMP; species will be evaluated based on a Excel, WordPerfect, or Adobe PDF file modify the framework procedures; moving multi-year average of landings, formats only. establish two migratory groups for as described in the FMP. cobia; and establish ACLs, ACTs, and Comments received through means Gulf Migratory Group King Mackerel not specified in this rule will not be AMs for each migratory group of king considered. mackerel, Spanish mackerel, and cobia. For Gulf migratory group king Electronic copies of the amendment In addition, Amendment 18 would set mackerel, Amendment 18 proposes may be obtained from the Southeast allocations and establish control rules separate ACLs and AMs for the Regional Office Web site at http:// for Atlantic group cobia and revise commercial and recreational sectors sero.nmfs.noaa.gov. definitions for management thresholds based on sector allocations. The for Atlantic migratory groups. commercial sector would close by zone, FOR FURTHER INFORMATION CONTACT: Removal of Species From the FMP subzone, or gear type when the Susan Gerhart, telephone: 727–824– commercial quota for the applicable Species currently in the FMP include 5305, or e-mail: zone, subzone, or gear type is reached king mackerel, Spanish mackerel, cobia, [email protected]. or is projected to be reached. In cero, little tunny, dolphin, and bluefish SUPPLEMENTARY INFORMATION: The addition, current trip limit adjustments (Gulf only). At present, only king Magnuson-Stevens Fishery would remain in place. For the mackerel, Spanish mackerel, and cobia Conservation and Management Act recreational sector, the NMFS Regional have associated Federal regulatory text; (Magnuson-Stevens Act) requires each Administrator would have the authority the other species are in the FMP for data regional fishery management council to to reduce the bag and possession limit collection purposes only. Even though submit any fishery management plan or to zero if the recreational allocation dolphin are in the Coastal Migratory amendment to NMFS for review and (recreational ACL) is reached or Pelagic FMP, in the Atlantic they are approval, disapproval, or partial projected to be reached. managed under a different FMP. approval. The Magnuson-Stevens Act Amendment 18 proposes to remove Atlantic Migratory Group King Mackerel also requires that NMFS, upon receiving cero, little tunny, dolphin, and bluefish a plan or amendment, publish an For Atlantic migratory group king from the Coastal Migratory Pelagic FMP. announcement in the Federal Register mackerel, Amendment 18 proposes The Councils and NMFS have notifying the public that the plan or separate ACLs for the commercial and determined these species are not in amendment is available for review and recreational sectors based on sector need of Federal management at this comment. allocations. Amendment 18 also time. If landings or effort change for any proposes a stock ACL and an ACT for The FMP being revised by this of these species and the Councils the recreational sector. The commercial amendment was prepared by the determine management at the Federal sector would close when the Councils and implemented through level is needed, these species could be commercial ACL is reached or projected regulations at 50 CFR parts 622 under added back into the FMP at a later date. the authority of the Magnuson-Stevens to be reached. For the recreational Act. Cobia Migratory Groups sector, if the stock ACL is exceeded in any year, the bag limit would be Background Although there is mixing of cobia from the Gulf and the Atlantic, scientific reduced the next fishing year by the The 2006 revisions to the Magnuson- data indicate there are at least two amount necessary to ensure that Stevens Act require that by 2011, for separate migratory groups in the Gulf recreational landings may achieve the fisheries determined by the Secretary to and Atlantic. Amendment 18 would recreational ACT, but do not exceed the not be subject to overfishing, ACLs and establish two migratory groups for cobia recreational ACL in the following AMs must be established at a level that with the boundary at the line of fishing year. A sector specific payback prevents overfishing and helps to demarcation between the Gulf exclusive would be assessed if Atlantic migratory achieve optimum yield (OY). These economic zone (EEZ) and the South group king mackerel are determined to mandates are intended to ensure fishery Atlantic EEZ. ACLs and AMs would be be overfished and the stock ACL is resources are managed for the greatest established separately for each group by exceeded. overall benefit to the nation, particularly the responsible Council. Gulf Migratory Group Spanish Mackerel with respect to providing food production and recreational ABCs, ACLs, and AMs For Gulf migratory group Spanish opportunities, and protecting marine The Councils accepted ABC control mackerel, Amendment 18 proposes ecosystems. Guidance also requires rules for Gulf migratory groups of king stock ACLs and AMs. Both the fishery management councils to mackerel, Spanish mackerel, and cobia, commercial and recreational sectors establish a control rule to determine and for the Atlantic migratory group of would close when the stock ACL is allowable biological catch (ABC). cobia, based on the control rule reached or projected to be reached.

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Atlantic Migratory Group Spanish proposes an allocation of 8 percent of proposed addition of other management Mackerel the ACL for the commercial sector and options into the framework procedures For Atlantic migratory group Spanish 92 percent of the ACL for the would also add flexibility and the mackerel, Amendment 18 proposes recreational sector, based on landings. ability to more timely respond to certain separate ACLs for the commercial and Amendment 18 also proposes an ACT future Council decisions through the recreational sectors based on sector for the recreational sector. framework procedures. allocations. Amendment 18 also The commercial sector would close Consideration of Public Comments proposes an ACT for the recreational when the commercial ACL is reached or sector. The commercial sector would projected to be reached. For the A proposed rule that would close when the commercial quota is recreational sector, if the stock ACL is implement measures outlined in reached or projected to be reached. In exceeded in any year, the fishing season Amendment 18 has been received from addition, current trip limit adjustments would be reduced the following year by the Councils. In accordance with the would remain in place. For the the amount necessary to ensure Magnuson-Stevens Act, NMFS is recreational sector, if the stock ACL is recreational landings may achieve the evaluating the proposed rule to exceeded in any year, the bag limit recreational ACT, but do not exceed the determine whether it is consistent with would be reduced the next fishing year recreational ACL in the following the FMP, the Magnuson-Stevens Act, by the amount necessary to ensure fishing year. A sector specific payback and other applicable law. If that recreational landings may achieve the would be assessed if Atlantic migratory determination is affirmative, NMFS will recreational ACT, but do not exceed the group cobia are determined to be publish the proposed rule in the Federal recreational ACL in the following overfished and the stock ACL is Register for public review and fishing year. A sector specific payback exceeded. comment. Comments received by November 28, would be assessed if the Atlantic Modify the Current Definitions for 2011, whether specifically directed to migratory group Spanish mackerel are Management Thresholds for South the amendment or the proposed rule, determined to be overfished and the Atlantic Migratory Groups stock ACL is exceeded. will be considered by NMFS in its Amendment 18 would revise decision to approve, disapprove, or Gulf Migratory Group Cobia definitions of maximum sustainable partially approve the amendment. For Gulf migratory group cobia, yield, OY, minimum stock size Comments received after that date will Amendment 18 proposes stock ACLs threshold and maximum fishing not be considered by NMFS in this and AMs. A stock ACT is proposed that mortality threshold for Atlantic decision. All comments received by is 90 percent of the ACL. Both the migratory group king mackerel, Spanish NMFS on the amendment or the commercial and recreational sectors mackerel, and cobia. proposed rule during their respective comment periods will be addressed in would close when the stock ACT is Modification of Generic Framework the final rule. reached or projected to be reached. Procedures Authority: 16 U.S.C. 1801 et seq. Atlantic Migratory Group Cobia To facilitate timely adjustments to For Atlantic migratory group cobia, harvest parameters and other Dated: September 23, 2011. Amendment 18 proposes separate ACLs management measures, the Councils Emily H. Menashes, for the commercial and recreational have added the ability to adjust ACLs Acting Director, Office of Sustainable sectors based on sector allocations. and AMs, and establish and adjust target Fisheries, National Marine Fisheries Service. Because sector allocations do not catch levels, including ACTs, to the [FR Doc. 2011–25161 Filed 9–28–11; 8:45 am] currently exist for cobia, the amendment current framework procedures. The BILLING CODE 3510–22–P

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Notices Federal Register Vol. 76, No. 189

Thursday, September 29, 2011

This section of the FEDERAL REGISTER please call (202) 690–2817 before not be regulated articles under APHIS’ contains documents other than rules or coming. Those documents are also regulations in 7 CFR part 340. proposed rules that are applicable to the available on the Internet at http:// In a notice 1 published in the Federal public. Notices of hearings and investigations, www.aphis.usda.gov/biotechnology/ Register on April 13, 2011 (76 FR committee meetings, agency decisions and not_reg.html and are posted with the 20623–20624, Docket No. APHIS-2010- rulings, delegations of authority, filing of petitions and applications and agency previous notice and the comments we 0040), APHIS announced the statements of organization and functions are received on the Regulations.gov Web availability of the Florigene petition, a examples of documents appearing in this site at http://www.regulations.gov/ plant pest risk assessment, and a draft section. #!docketDetail;D=APHIS-2010-0040. environmental assessment (EA) for FOR FURTHER INFORMATION CONTACT: Mr. public comment. APHIS solicited Evan Chestnut, Policy Analyst, comments on the petition, whether the DEPARTMENT OF AGRICULTURE Biotechnology Regulatory Services, subject roses are likely to pose a plant APHIS, 4700 River Road Unit 147, pest risk, the draft EA, and the plant Animal and Plant Health Inspection Riverdale, MD 20737–1236; (301) 734– pest risk assessment for 60 days ending Service 0942, e-mail: on June 13, 2011. [Docket No. APHIS–2010–0040] [email protected]. To APHIS received two comments during obtain copies of the documents the comment period, with one Florigene Pty., Ltd.; Determination of referenced in this notice, contact Ms. commenter expressing support of the Nonregulated Status for Altered Color Cindy Eck at (301) 734–0667, email: EA’s preferred alternative and one Roses [email protected]. commenter expressing opposition. The commenter opposing a determination of AGENCY: Animal and Plant Health SUPPLEMENTARY INFORMATION: nonregulated status cited scientific Inspection Service, USDA. Background concerns related to the plant pest ACTION: Notice. determination. APHIS has addressed the The regulations in 7 CFR part 340, issues raised by this commenter in an SUMMARY: We are advising the public of ‘‘Introduction of Organisms and attachment to the finding of no our determination that two hybrid rose Products Altered or Produced Through significant impact. lines developed by Florigene Pty., Ltd., Genetic Engineering Which Are Plant designated as IFD–524;1–4 and IFD– Pests or Which There Is Reason to National Environmental Policy Act 529;1–9, which have been genetically Believe Are Plant Pests,’’ regulate, To provide the public with engineered to produce novel flower among other things, the introduction documentation of APHIS’ review and color, are no longer considered a (importation, interstate movement, or analysis of any potential environmental regulated article under our regulations release into the environment) of impacts associated with the governing the introduction of certain organisms and products altered or determination of nonregulated status for genetically engineered organisms. Our produced through genetic engineering Florigene’s rose lines IFD–524;1–4 and determination is based on our that are plant pests or that there is IFD–529;1–9, an EA has been prepared. evaluation of data submitted by reason to believe are plant pests. Such The EA was prepared in accordance Florigene Pty., Ltd., in its petition for a genetically engineered organisms and with: (1) The National Environmental determination of nonregulated status, products are considered ‘‘regulated Policy Act of 1969 (NEPA), as amended our analysis of available scientific data, articles.’’ (42 U.S.C. 4321 et seq.), (2) regulations and comments received from the public The regulations in § 340.6(a) provide of the Council on Environmental in response to our previous notice that any person may submit a petition Quality for implementing the announcing the availability of the to the Animal and Plant Health procedural provisions of NEPA (40 CFR petition for nonregulated status and its Inspection Service (APHIS) seeking a parts 1500–1508), (3) USDA regulations associated environmental assessment determination that an article should not implementing NEPA (7 CFR part 1b), and plant pest risk assessment. This be regulated under 7 CFR part 340. and (4) APHIS’ NEPA Implementing notice also announces the availability of Paragraphs (b) and (c) of § 340.6 Procedures (7 CFR part 372). Based on our written determination and finding describe the form that a petition for a our EA, the response to public of no significant impact. determination of nonregulated status comments, and other pertinent scientific DATES: Effective Date: September 29, must take and the information that must data, APHIS has reached a finding of no 2011. be included in the petition. significant impact with regard to the ADDRESSES: You may read the APHIS received a petition (APHIS preferred alternative identified in the documents referenced in this notice and Petition Number 08–315–01p) from EA. the comments we received in our Florigene Pty., Ltd. (Florigene) of Determination reading room. The reading room is Victoria, Australia, seeking a located in room 1141 of the USDA determination of nonregulated status for Based on APHIS’ analysis of field and South Building, 14th Street and two hybrid rose lines designated as IFD– laboratory data submitted by Florigene, Independence Avenue, SW., 524;1–4 and IFD–529;1–9, which have references provided in the petition, Washington, DC. Normal reading room been genetically engineered to produce 1 To view the notice, petition, draft EA, the plant hours are 8 a.m. to 4:30 p.m., Monday novel flower color. The petition stated pest risk assessment, and the comments we through Friday, except holidays. To be that these rose lines are unlikely to pose received, go to http://www.regulations.gov/ sure someone is there to help you, a plant pest risk and, therefore, should #!docketDetail;D=APHIS-2010-0040.

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peer-reviewed publications, information announces the availability of our Syngenta Biotechnology, Inc. analyzed in the EA, the plant pest risk written determination and finding of no (Syngenta), seeking a determination of assessment, comments provided by the significant impact. nonregulated status for cotton public, and information provided in DATES: Effective Date: September 29, (Gossypium spp.) designated as event APHIS’ response to those public 2011. COT67B, which has been genetically comments, APHIS has determined that engineered to express a Cry1Ab protein ADDRESSES: You may read the Florigene’s rose lines IFD–524;1–4 and documents referenced in this notice and to protect cotton plants from IFD–529;1–9 are unlikely to pose a the comments we received in our lepidopteran insect damage. The plant pest risk and therefore are no reading room. The reading room is petition stated that cotton event longer subject to our regulations located in room 1141 of the USDA COT67B is unlikely to pose a plant pest governing the introduction of certain South Building, 14th Street and risk and, therefore, should not be a genetically engineered organisms. Independence Avenue, SW., regulated article under APHIS’ Copies of the signed determination Washington, DC. Normal reading room regulations in 7 CFR part 340. document, as well as copies of the hours are 8 a.m. to 4:30 p.m., Monday In a notice 1 published in the Federal petition, plant pest risk assessment, EA, through Friday, except holidays. To be Register on May 11, 2011 (76 FR 27301– finding of no significant impact, and sure someone is there to help you, 27303, Docket No. APHIS–2007–0130), response to comments are available as please call (202) 690–2817 before APHIS announced the availability of the indicated in the ADDRESSES and FOR coming. Those documents are also Syngenta petition, our plant pest risk FURTHER INFORMATION CONTACT sections available on the Internet at http:// assessment, and our draft environmental of this notice. www.aphis.usda.gov/biotechnology/ assessment (EA) for public comment. Authority: 7 U.S.C. 7701–7772 and 7781– not_reg.html and are posted with the APHIS solicited comments on the 7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and previous notice and the comments we petition, whether the subject cotton is 371.3. received on the Regulations.gov Web likely to pose a plant pest risk, and on Done in Washington, DC, this 23rd day of site at http://www.regulations.gov/ the draft EA for 60 days ending on July September 2011. #!docketDetail;D=APHIS-2007-0130. 11, 2011. Kevin Shea, FOR FURTHER INFORMATION CONTACT: Mr. APHIS received 7 comments opposing Acting Administrator, Animal and Plant Evan Chestnut, Policy Analyst, a determination of nonregulated status Health Inspection Service. Biotechnology Regulatory Services, during the comment period, with one [FR Doc. 2011–25090 Filed 9–28–11; 8:45 am] APHIS, 4700 River Road Unit 147, comment having an additional 4,045 BILLING CODE 3410–34–P Riverdale, MD 20737–1236; (301) 734– names attached. Commenters generally 0942, e-mail: expressed opposition to genetically [email protected]. To DEPARTMENT OF AGRICULTURE engineered organisms or crops but did obtain copies of the documents not provide any specific disagreement referenced in this notice, contact Ms. Animal and Plant Health Inspection with APHIS’ analysis. One commenter Cindy Eck at (301) 734–0667, e-mail: Service expressed concern with gene flow. [email protected]. APHIS has addressed the issues raised [Docket No. APHIS–2007–0130] SUPPLEMENTARY INFORMATION: during the comment period and has provided responses to these comments Syngenta Biotechnology, Inc.; Background as an attachment to the finding of no Determination of Nonregulated Status The regulations in 7 CFR part 340, for Lepidopteran-Resistant Cotton significant impact. ‘‘Introduction of Organisms and National Environmental Policy Act AGENCY: Animal and Plant Health Products Altered or Produced Through Inspection Service, USDA. Genetic Engineering Which Are Plant To provide the public with ACTION: Notice. Pests or Which There Is Reason to documentation of APHIS’ review and Believe Are Plant Pests,’’ regulate, analysis of any potential environmental SUMMARY: We are advising the public of among other things, the introduction impacts associated with the our determination that a cotton line (importation, interstate movement, or determination of nonregulated status for developed by Syngenta Biotechnology, release into the environment) of Syngenta’s cotton event COT67B, an EA Inc., designated as event COT67B, organisms and products altered or has been prepared. The EA was which has been genetically engineered produced through genetic engineering prepared in accordance with: (1) The to express a protein to protect cotton that are plant pests or that there is National Environmental Policy Act of plants from lepidopteran insect damage, reason to believe are plant pests. Such 1969 (NEPA), as amended (42 U.S.C. is no longer considered a regulated genetically engineered organisms and 4321 et seq.), (2) regulations of the article under our regulations governing products are considered ‘‘regulated Council on Environmental Quality for the introduction of certain genetically articles.’’ implementing the procedural provisions engineered organisms. Our The regulations in § 340.6(a) provide of NEPA (40 CFR parts 1500–1508), (3) determination is based on our that any person may submit a petition USDA regulations implementing NEPA evaluation of data submitted by to the Animal and Plant Health (7 CFR part 1b), and (4) APHIS’ NEPA Syngenta Biotechnology, Inc., in its Inspection Service (APHIS) seeking a Implementing Procedures (7 CFR part petition for a determination of determination that an article should not 372). Based on our EA, the response to nonregulated status, our analysis of be regulated under 7 CFR part 340. public comments, and other pertinent available scientific data, and comments Paragraphs (b) and (c) of § 340.6 scientific data, APHIS has reached a received from the public in response to describe the form that a petition for a finding of no significant impact with our previous notice announcing the determination of nonregulated status availability of the petition for must take and the information that must 1 To view the notice, petition, draft EA, the plant nonregulated status and its associated be included in the petition. pest risk assessment, and the comments we environmental assessment and plant APHIS received a petition (APHIS received, go to http://www.regulations.gov/ pest risk assessment. This notice also Petition Number 07–108–01p) from #!docketDetail;D=APHIS-2007-0130.

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regard to the preferred alternative DATES: We will consider all comments into the continental United States. The identified in the EA. that we receive on or before November analysis consists of a pest list 28, 2011. Determination identifying pests of quarantine ADDRESSES: You may submit comments significance that are present in Mexico Based on APHIS’ analysis of field and by either of the following methods: and could follow the pathway of laboratory data submitted by Syngenta, • Federal eRulemaking Portal: Go to importation into the United States and references provided in the petition, http://www.regulations.gov/ a risk management document peer-reviewed publications, information #!documentDetail;D=APHIS-2011-0077– identifying phytosanitary measures that analyzed in the EA, the plant pest risk 0001. could be applied to the commodity to assessment, comments provided by the • Postal Mail/Commercial Delivery: mitigate the pest risk. public, and information provided in Send your comment to Docket No. APHIS’ response to those public APHIS–2011–0077, Regulatory Analysis We have concluded that fresh tejocote comments, APHIS has determined that and Development, PPD, APHIS, Station fruit can be safely imported into the Syngenta’s cotton event COT67B is 3A–03.8, 4700 River Road Unit 118, continental United States from Mexico unlikely to pose a plant pest risk and Riverdale, MD 20737–1238. using one or more of the five designated therefore is no longer subject to our Supporting documents and any phytosanitary measures listed in regulations governing the introduction comments we receive on this docket § 319.56–4(b). The measures we selected of certain genetically engineered may be viewed at http:// are: organisms. www.regulations.gov/ • Fresh tejocote fruit may be Copies of the signed determination #!docketDetail;D=APHIS-2011-0077 or imported into the continental United document, as well as copies of the in our reading room, which is located in States in commercial consignments petition, plant pest risk assessment, EA, room 1141 of the USDA South Building, only. finding of no significant impact, and 14th Street and Independence Avenue, • response to comments are available as SW., Washington, DC. Normal reading Each consignment of fresh tejocote indicated in the ADDRESSES and FOR room hours are 8 a.m. to 4:30 p.m., fruit must be accompanied by a FURTHER INFORMATION CONTACT sections Monday through Friday, except phytosanitary certificate issued by the of this notice. holidays. To be sure someone is there to NPPO of Mexico stating that the fresh Authority: 7 U.S.C. 7701–7772 and 7781– help you, please call (202) 690–2817 tejocote fruit in the consignment has 7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and before coming. been inspected and is free of pests. 371.3. FOR FURTHER INFORMATION CONTACT: Mr. • Each shipment of fresh tejocote fruit Done in Washington, DC, this 23rd day of David B. Lamb, Import Specialist, RPM, is subject to inspection upon arrival at September 2011. PHP, PPQ, APHIS, 4700 River Road Unit port of entry to the United States. 133, Riverdale, MD 20737; (301) 734– Kevin Shea, Therefore, in accordance with 0627. Acting Administrator, Animal and Plant § 319.56–4(c), we are announcing the Health Inspection Service. SUPPLEMENTARY INFORMATION: availability of our pest risk analysis for [FR Doc. 2011–25086 Filed 9–28–11; 8:45 am] Background public review and comment. The pest BILLING CODE 3410–34–P risk analysis may be viewed on the Under the regulations in ‘‘Subpart— Regulations.gov Web site or in our Fruits and Vegetables’’ (7 CFR 319.56– ADDRESSES above for DEPARTMENT OF AGRICULTURE 1 through 319.56–51, referred to below reading room (see as the regulations), the Animal and a link to Regulations.gov and Animal and Plant Health Inspection Plant Health Inspection Service (APHIS) information on the location and hours of Service of the U.S. Department of Agriculture the reading room). You may request prohibits or restricts the importation of paper copies of the pest risk analysis by [Docket No. APHIS–2011–0077] fruits and vegetables into the United calling or writing to the person listed under FOR FURTHER INFORMATION Notice of Availability of a Pest Risk States from certain parts of the world to CONTACT. Please refer to the subject of Analysis for the Importation of Fresh prevent plant pests from being the pest risk analysis you wish to review Tejocote Fruit From Mexico introduced into and spread within the United States. when requesting copies. AGENCY: Animal and Plant Health Section 319.56–4 contains a After reviewing any comments we Inspection Service, USDA. performance-based process for receive, we will announce our decision ACTION: Notice. approving the importation of regarding the import status of fresh commodities that, based on the findings tejocote fruit from Mexico in a SUMMARY: We are advising the public of a pest-risk analysis, can be safely subsequent notice. If the overall that we have prepared a pest risk imported subject to one or more of the conclusions of the analysis and the analysis that evaluates the risks designated phytosanitary measures Administrator’s determination of risk associated with the importation into the listed in paragraph (b) of that section. remain unchanged following our continental United States of fresh APHIS received a request from the consideration of the comments, then we tejocote fruit from Mexico. Based on this national plant protection organization will begin issuing permits for the analysis, we believe that the application (NPPO) of Mexico to allow the importation of fresh tejocote fruit from of one or more designated phytosanitary importation of fresh tejocote fruit measures will be sufficient to mitigate (Crataegus pubescens) from Mexico into Mexico into the continental United the risks of introducing or disseminating the continental United States. Currently, States subject to the requirements plant pests or noxious weeds via the fresh tejocote fruit is not authorized for specified in the risk management importation of fresh tejocote fruit from entry from Mexico. We have completed document. Mexico. We are making the pest risk a pest risk analysis for the purpose of Authority: 7 U.S.C. 450, 7701–7772, and analysis available to the public for evaluating the pest risks associated with 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR review and comment. the importation of fresh tejocote fruit 2.22, 2.80, and 371.3.

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Done in Washington, DC, this 23rd day of FOR FURTHER INFORMATION CONTACT: Ms. the national plant protection September 2011. Donna L. West, Senior Import organization (NPPO) of India and Kevin Shea, Specialist, RPM, PHP, PPQ, APHIS, accompanied by a phytosanitary Acting Administrator, Animal and Plant 4700 River Road Unit 133, Riverdale, certificate attesting that the fruit Health Inspection Service. MD 20737; (301) 734–0627. received the required irradiation [FR Doc. 2011–25087 Filed 9–28–11; 8:45 am] SUPPLEMENTARY INFORMATION: treatment and was inspected and found BILLING CODE 3410–34–P Background free of the mite Tenuipalpus granati, the false spider mite (Tenuipalpus punicae), Under the regulations in ‘‘Subpart— and the bacterium Xanthomonas DEPARTMENT OF AGRICULTURE Fruits and Vegetables’’ (7 CFR 319.56– axonopodis pv. Punicae; 1 through 319.56–51, referred to below • Animal and Plant Health Inspection as the regulations), the Animal and If irradiation is applied upon arrival Service Plant Health Inspection Service (APHIS) in the United States, each consignment of fresh pomegranate fruit must be [Docket No. APHIS–2011–0087] of the U.S. Department of Agriculture prohibits or restricts the importation of inspected by the NPPO of India prior to Notice of Availability of a Pest Risk fruits and vegetables into the United departure and accompanied by a Analysis for the Importation of States from certain parts of the world to phytosanitary certificate with an Pomegranate From India Into the prevent plant pests from being additional declaration that the fruit was Continental United States introduced into and spread within the inspected and found free of the mite United States. Tenuipalpus granati, the false spider AGENCY: Animal and Plant Health Section 319.56–4 contains a mite (Tenuipalpus punicae), and the Inspection Service, USDA. performance-based process for bacterium Xanthomonas axonopodis ACTION: Notice; request for comments. approving the importation of pv. Punicae; and SUMMARY: We are advising the public commodities that, based on the findings • The fresh pomegranate fruit is that we have prepared a pest risk of a pest risk analysis, can be safely subject to inspection upon arrival at the analysis that evaluates the risks imported subject to one or more of the U.S. port of entry. designated phytosanitary measures associated with the importation into the Therefore, in accordance with continental United States of fresh listed in paragraph (b) of that section. APHIS received a request from the § 319.56–4(c), we are announcing the pomegranate fruit from India. Based on Government of India to allow the availability of our pest risk analysis for that analysis, we believe that the importation of fresh pomegranate fruit public review and comment. The pest application of one or more designated (Punica granatum L.) from India into the risk analysis may be viewed on the phytosanitary measures will be continental United States. Currently, Regulations.gov Web site or in our sufficient to mitigate the risks of fresh pomegranate fruit is not reading room (see ADDRESSES above for introducing or disseminating plant pests authorized for entry from India. We a link to Regulations.gov and or noxious weeds via the importation of have completed a pest risk analysis for information on the location and hours of fresh pomegranate fruit from India. We the purpose of evaluating the pest risks the reading room). You may request are making the pest risk analysis associated with the importation of fresh paper copies of the pest risk analysis by available to the public for review and pomegranate fruit into the continental calling or writing to the person listed comment. United States. The analysis consists of under FOR FURTHER INFORMATION DATES: We will consider all comments a pest list identifying pests of CONTACT. Please refer to the subject of that we receive on or before November quarantine significance that are present the pest risk analysis you wish to review 28, 2011. in India and could follow the pathway when requesting copies. ADDRESSES: You may submit comments of importation into the United States After reviewing any comments we by either of the following methods: and a risk management document receive, we will announce our decision • Federal eRulemaking Portal: Go to identifying phytosanitary measures that regarding the import status of fresh http://www.regulations.gov/ could be applied to the commodity to pomegranate fruit from India in a #!documentDetail;D=APHIS-2011-0087- mitigate the pest risk. subsequent notice. If the overall 0001. We have concluded that fresh • Postal Mail/Commercial Delivery: conclusions of the analysis and the pomegranate fruit can be safely Administrator’s determination of risk Send your comment to Docket No. imported into the continental United remain unchanged following our APHIS–2011–0087, Regulatory Analysis States from India using one or more of consideration of the comments, then we and Development, PPD, APHIS, Station the five designated phytosanitary will authorize the importation of fresh 3A–03.8, 4700 River Road Unit 118, measures listed in § 319.56–4(b). The pomegranate fruit from India into the Riverdale, MD 20737–1238. requirements for shipments of fresh continental United States subject to the Supporting documents and any pomegranate fruit from India would be requirements specified in the risk comments we receive on this docket as follows: may be viewed at http:// • The fresh pomegranate fruit may be management document. www.regulations.gov/ imported into the continental United Authority: 7 U.S.C. 450, 7701–7772, and #!docketDetail;D=APHIS-2011-0087 or States in commercial consignments 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR in our reading room, which is located in only; 2.22, 2.80, and 371.3. room 1141 of the USDA South Building, • The fresh pomegranate fruit must be Done in Washington, DC, this 23rd day of 14th Street and Independence Avenue, irradiated in accordance with 7 CFR September 2011. SW., Washington, DC. Normal reading part 305 with a minimum absorbed dose room hours are 8 a.m. to 4:30 p.m., of 400 Gy; Kevin Shea, Monday through Friday, except • If the irradiation treatment is Acting Administrator, Animal and Plant holidays. To be sure someone is there to applied outside the United States, each Health Inspection Service. help you, please call (202) 6902817 consignment of fresh pomegranate fruit [FR Doc. 2011–25085 Filed 9–28–11; 8:45 am] before coming. must be jointly inspected by APHIS and BILLING CODE 3410–34–P

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DEPARTMENT OF AGRICULTURE relocated and the Cottam SUP would be Average Hours per Response: 58 amended. minutes. Forest Service Corrected Dates: After publication of Needs and Uses: The 2012 Economic the original Notice of Intent, a letter Census of Island Areas, which includes Questa Ranger District, Carson soliciting comments on the proposed Puerto Rico, Guam, the Commonwealth National Forest; Taos County, NM; action and purpose and need was issued of the Northern Mariana Islands, the Taos Ski Valley’s 2010 Master to the public in December 2010. U.S. Virgin Islands, and American Development Plan—Phase 1 Projects; Comments concerning the scope of the Samoa, is part of the 2012 Economic Additional Filings analysis were received in January and Census. The 2012 Economic Census of Island AGENCY: Forest Service, USDA. February 2011. The draft environmental impact statement (draft EIS) is expected Areas will cover the following sectors ACTION: Notice; correction. to be available for public review in (as defined by the North American Industry Classification System SUMMARY: The USDA Forest Service December 2011 and the final (NAICS)): Mining, Utilities, published in the Federal Register a environmental impact statement (final Construction, Manufacturing; Wholesale Notice of Intent (75 FR 71414–71415, EIS) and record of decision (ROD) are and Retail Trades, Transportation and November 23, 2010) to prepare an expected in May 2012. Warehousing, Information; Finance and environmental impact statement for a ADDRESSES: Send written comments to Insurance; Real Estate and Rental and proposal to authorize several (Phase 1) Carson National Forest, Taos Ski Valley Leasing; Professional, Scientific, and projects included in the Taos Ski Valley MDP—Phase 1 Projects, 208 Cruz Alta Technical Services; Management of (TSV) 2010 Master Development Plan Road, Taos, NM 87571. Comments may Companies and Enterprises; also be sent via e-mail to comments- (MDP). The proposed projects include: Administrative and Support, Waste [email protected] or Adding new lifts to serve terrain that is Management and Remediation Services; facsimile to (575) 758–6213. currently only accessible by hiking; Educational Services; Health Care and replacing old lifts; creating new gladed FOR FURTHER INFORMATION CONTACT: Social Assistance; Arts, Entertainment, terrain; improving traffic circulation Additional information related to the and Recreation; Accommodation and throughout the day parking lots and a proposed project can be obtained from Food Services; and Other Services new drop-off area; constructing the Taos the Forest’s Web page at: http:// (except Public Administration). This Adventure Center (snowtubing and www.fs.fed.us/r3/carson/. The Forest scope is equivalent to that of the snowshoeing trails); and developing a Service contact is Audrey Kuykendall, stateside economic census. lift-served mountain biking trail. All who can be reached at 575–758–6200. The economic census provides the proposed projects are within the Dated: September 22, 2011. only source for dependable, comparable existing special use permit (SUP) area. Kendall Clark, data for the island areas at a geographic Modification of the Proposed Action: Carson National Forest Supervisor. level consistent with U.S. counties. The The original proposed action submitted 2012 Economic Census of Island Areas [FR Doc. 2011–25011 Filed 9–28–11; 8:45 am] for public review included a proposal to is particularly important because of the develop the Taos Adventure Center, in BILLING CODE 3410–11–P rapid and varied changes taking place in the northwest portion of the SUP area. the economies of these areas. The center would have included The economic census is the primary snowtubing and snowshoeing trails and DEPARTMENT OF COMMERCE source of dependable facts about the associated facilities. Upon further structure and functioning of the Submission for OMB Review; analysis, the Forest Service has economies of each Island Area, and it Comment Request modified the proposed action and features the only recognized source of proposes to develop the snowtubing The Department of Commerce will data at a geographic level equivalent to trails where Chair 3 (Beginner Lift) and submit to the Office of Management and U.S. counties. Economic census Strawberry Hill are currently located. Budget (OMB) for clearance the statistics serve as part of the framework The modified proposed action would: following proposal for collection of for the national accounts of the Island (1) Reduce the potential impacts to information under the provisions of the Areas and provide essential information wildlife habitat and wetlands; (2) Paperwork Reduction Act (44 U.S.C. for government (Federal and local), eliminate impacts to approximately 3.7 chapter 35). business, and the general public. The acres of a previously undisturbed area; Agency: U.S. Census Bureau. governments of the Island Areas and the (3) decrease the distance of the facility Title: 2012 Economic Census of Bureau of Economic Analysis (BEA) rely from the base area, which is the hub of Puerto Rico, the U.S. Virgin Islands, on the economic census as an important activities; and (4) eliminate the need to Guam, Commonwealth of the Northern part of the framework for their income construct a warming hut (yurt), restroom Mariana Islands, and American and product accounts, input-output facilities, a foot bridge across the Rio Samoa—Collectively Referred to as tables, economic indexes, and other Hondo, and snowmaking lines. The Island Areas. composite measures that serve as the proposed snowtubing area would be OMB Control Number: 0607–0937. factual basis for economic policy- located on both National Forest System Form Number(s): IA–97120, IA– making, planning, and program lands and private land owned by TSV. 97220, IA–97123, IA–97223, IA–97130, administration. Further, the census The snowshoeing trails remain as IA–97230, IA–97142, IA–97242, IA– provides benchmarks for surveys of originally proposed. 97144, IA–97244, IA–97152, IA–97252, business which track short-term In addition, the Forest Service IA–97172, IA–97272, IA–97180, IA– economic trends, serve as economic proposes to authorize under a separate 97280, IA–97190, IA–97290, IA–98163, indicators, and contribute critical source SUP to John Cottam, the relocation of IA–98173, IA–98183, IA–98193. data for current estimates of the gross the Alpine Village pedestrian bridge. If Type of Request: Reinstatement, with product of the Island Areas. In addition, the decision is to authorize a new skier change, of an expired collection. industry, business, academia, and the drop-off area under TSV’s SUP, the Burden Hours: 56,825. general public use information from the bridge would be simultaneously Number of Respondents: 59,100. economic census for evaluating markets,

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preparing business plans, making Departmental Paperwork Clearance DEPARTMENT OF COMMERCE business decisions, developing Officer, (202) 482–0266, Department of economic models and forecasts, Commerce, Room 6616, 14th and Economic Development Administration conducting economic research, and Constitution Avenue, NW., Washington, Notice of Petitions by Firms for establishing benchmarks for their own DC 20230 (or via the Internet at Determination of Eligibility To Apply sample surveys. [email protected]). If the economic census were not for Trade Adjustment Assistance conducted in the Island Areas, the Written comments and AGENCY: Economic Development Federal government would lose the only recommendations for the proposed Administration, Department of dependable source of detailed information collection should be sent Commerce. comprehensive information of the within 30 days of publication of this economies of these areas. Additionally, notice to Brian Harris-Kojetin, OMB ACTION: Notice and opportunity for the governments of the Island Areas Desk Officer either by fax (202–395– public comment. would lose vital source data and 7245) or e-mail ([email protected]). Pursuant to Section 251 of the Trade benchmarks for their national accounts, Dated: September 23, 2011. Act of 1974, as amended (19 U.S.C. 2341 input-output tables, and other et seq.), the Economic Development composite measures of economic Glenna Mickelson, Administration (EDA) has received activity, causing a substantial Management Analyst, Office of the Chief petitions for certification of eligibility to degradation in the quality of these Information Officer. apply for Trade Adjustment Assistance important statistics. [FR Doc. 2011–24999 Filed 9–28–11; 8:45 am] from the firms listed below. Affected Public: Business or other for- BILLING CODE 3510–07–P profit. Accordingly, EDA has initiated Frequency: Every 5 years. investigations to determine whether Respondent’s Obligation: Mandatory. increased imports into the United States Legal Authority: Title 13, United of articles like or directly competitive States Code, Sections 131 and 224. with those produced by each of these OMB Desk Officer: Brian Harris- firms contributed importantly to the Kojetin, (202) 395–7314. total or partial separation of the firm’s Copies of the above information workers, or threat thereof, and to a collection proposal can be obtained by decrease in sales or production of each calling or writing Diana Hynek, petitioning firm.

LIST OF PETITIONS RECEIVED BY EDA FOR CERTIFICATION OF ELIGIBILITY TO APPLY FOR TRADE ADJUSTMENT ASSISTANCE [8/25/2011 through 9/21/2011]

Date accepted Firm name Address for Products Investigation

B&G Seafood, Inc...... 17358 Hwy. 631, Des 9/20/2011 The firm processes seafood. Allemands, LA 70030. CSE Automation, LLC ...... 7826 Centech Road, Omaha, 9/19/2011 The firm designs and manufactures equipment used to man- NE 68138. ufacture wood cabinets, furniture and windows. Debond Corporation DBA 3720 West Washington Street, 9/9/2011 The firm supplies custom thermoforming and contract, medial Flexpak Corporation. Phoenix, AZ 85009. and food packaging solutions. EuroPlast, Ltd...... 100 S. Industrial Lane, En- 9/9/2011 The firm manufactures plastic valves/enclosures, plastic bins, deavor, WI 53930. totes for electrical metering, and internal security compo- nents for locking devices. Greg Arceneaux Cabinet- 703 W. 26th Ave., Covington, 9/6/2011 The firm manufactures custom cabinetry and millwork. makers, Inc. LA 70433. Oakridge Seafood, LLC ...... 3408 E. Old Spanish Trail, 9/12/2011 The firm processes seafood. New Iberia, LA 70560. R. S. Owens & Company ...... 5535 N. Lynch Avenue, Chi- 9/9/2011 The firm designs, manufactures, and assembles awards, tro- cago, IL 60630. phies, recognition items and promotional products.

Any party having a substantial 315.9 for procedures to request a public DEPARTMENT OF COMMERCE interest in these proceedings may hearing. The Catalog of Federal request a public hearing on the matter. Domestic Assistance official number Bureau of Industry and Security A written request for a hearing must be and title for the program under which submitted to the Trade Adjustment these petitions are submitted is 11.313, In the Matter of: Bahram Maghazehe, Assistance for Firms Division, Room Trade Adjustment Assistance for Firms. a.k.a. Benjamin Maghazehe, a.k.a. Ben Maghazehe, 154 Sequoia Drive, 7106, Economic Development Dated: September 21, 2011. Newtown, PA 18940, Respondent; Administration, U.S. Department of Bryan Borlik, Order Relating to Bahram Maghazehe Commerce, Washington, DC 20230, no a.k.a. Benjamin Maghazehe a.k.a. Ben later than ten (10) calendar days Director, Trade Adjustment Assistance for Firms Program. Maghazehe following publication of this notice. [FR Doc. 2011–25022 Filed 9–28–11; 8:45 am] Please follow the requirements set The Bureau of Industry and Security, BILLING CODE 3510–WH–P forth in EDA’s regulations at 13 CFR U.S. Department of Commerce (‘‘BIS’’),

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has notified Bahram Maghazehe a.k.a. which he had a business relationship B. Carrying on negotiations Benjamin Maghazehe a.k.a. Ben wanted to acquire the equipment. To concerning, or ordering, buying, Maghazehe (‘‘Maghazehe’’) of its enable the delivery of the oncology receiving, using, selling, delivering, intention to initiate an administrative system to the Iranian company, storing, disposing of, forwarding, proceeding against Maghazehe pursuant Maghazehe worked with a U.S. transporting, financing, or otherwise to Section 766.3 of the Export company to arrange for the de- servicing in any way, any transaction Administration Regulations (the installation and removal of the involving any item exported or to be ‘‘Regulations’’),1 and Section 13(c) of equipment from the U.S. hospital and exported from the United States that is the Export Administration Act of 1979, the export of the equipment from the subject to the Regulations, or in any as amended (the ‘‘Act’’),2 through the United States. Maghazehe informed the other activity subject to the Regulations; issuance of a Proposed Charging Letter U.S. company that the oncology system or to Maghazehe that alleged that he was destined for Iran, and, on or about C. Benefitting in any way from any committed one violation of the June 7, 2007, when asked by the U.S. transaction involving any item exported Regulations. Specifically, the charge is: company’s representative if he wanted or to be exported from the United States Charge 1 15 CFR 764.2(h)—Evasion to make a ‘‘legal export,’’ indicated by that is subject to the Regulations, or in shaking his head no that he did not any other activity subject to the Beginning in or about February 2007 want to do so. Maghazehe provided the Regulations. and continuing through in or about June U.S. company with a United Arab Second, that no person may, directly 2007, Maghazehe engaged in a Emirates address, which he intended for or indirectly, do any of the following: transaction or took other action with the U.S. company to provide to the A. Export or reexport to or on behalf intent to evade the provisions of the freight forwarder and for the freight of the Denied Person any item subject to Regulations. forwarder to provide to the U.S. the Regulations; Specifically, Maghazehe worked with Government as the ultimate destination a U.S. company to arrange for the export B. Take any action that facilitates the of the item, thereby obscuring the actual without a license from the United States acquisition or attempted acquisition by final destination of the equipment, Iran. through the United Arab Emirates to the Denied Person of the ownership, These acts were taken to export the Iran of a Varian Ximatron oncology possession, or control of any item U.S.-origin equipment to Iran without system, which was subject to the subject to the Regulations that has been the required U.S. Government Regulations,3 and the Iranian or will be exported from the United authorization and avoid detection by Transactions Regulations (‘‘ITR’’) 4 and States, including financing or other law enforcement. Ultimately, the had a declared value of $5,000. Pursuant support activities related to a equipment was seized by the U.S. to Section 560.204 of the Iranian transaction whereby the Denied Person Transactions Regulations (‘‘ITR’’) Government. acquires or attempts to acquire such maintained by the Department of the In so doing, Maghazehe committed ownership, possession or control; Treasury’s Office of Foreign Assets one violation of Section 764.2(h) of the C. Take any action to acquire from or Control (‘‘OFAC’’), an export to a third Regulations. to facilitate the acquisition or attempted country intended for transshipment to Whereas, BIS and Maghazehe have acquisition from the Denied Person of Iran is a transaction that requires OFAC entered into a Settlement Agreement any item subject to the Regulations that authorization. Pursuant to Section 746.7 pursuant to Section 766.18(a) of the has been exported from the United of the Regulations, no person may Regulations, whereby they agreed to States; engage in the exportation of an item settle this matter in accordance with the D. Obtain from the Denied Person in subject to both the Regulations and the terms and conditions set forth therein; the United States any item subject to the ITR without authorization from OFAC. and Regulations with knowledge or reason No OFAC authorization was sought or Whereas, I have approved of the terms to know that the item will be, or is obtained for the transaction described of such Settlement Agreement; intended to be, exported from the herein. It Is Therefore Ordered: United States; or Maghazehe had knowledge that a U.S. FIRST, that for a period of six (6) E. Engage in any transaction to service hospital was discarding the oncology years from the date of entry of the any item subject to the Regulations that system and that a company in Iran with Order, Bahram Maghazehe a.k.a. has been or will be exported from the Benjamin Maghazehe a.k.a. Ben United States and which is owned, 1 The Regulations are currently codified in the Maghazehe, with a last known address possessed or controlled by the Denied Code of Federal Regulations at 15 CFR parts 730– of 154 Sequoia Drive, Newtown, Person, or service any item, of whatever 774 (2011). The charged violation occurred in 2007. Pennsylvania 18940, and when acting origin, that is owned, possessed or The Regulations governing the violations at issue are found in the 2007 version of the Code of Federal for or on his behalf, his representatives, controlled by the Denied Person if such Regulations (15 CFR parts 730–774 (2007)). The assigns, agents, or employees service involves the use of any item 2011 Regulations set forth the procedures that apply (hereinafter collectively referred to as subject to the Regulations that has been to this matter. ‘‘Denied Person’’), may not, directly or or will be exported from the United 2 50 U.S.C. app. 2401–2420 (2000). Since August indirectly, participate in any way in any States. For purposes of this paragraph, 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August transaction involving any commodity, servicing means installation, 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which software or technology (hereinafter maintenance, repair, modification or has been extended by successive Presidential collectively referred to as ‘‘item’’) testing. Notices, the most recent being that of August 12, exported or to be exported from the Third, that, after notice and 2011 (76 FR 50,661 (Aug. 16, 2011)), has continued the Regulations in effect under the International United States that is subject to the opportunity for comment as provided in Emergency Economic Powers Act (50 U.S.C. 1701, Regulations, or in any other activity Section 766.23 of the Regulations, any et seq.). subject to the Regulations, including, person, firm, corporation, or business 3 The item is designated as EAR99, which is a but not limited to: organization related to the Denied designation for items subject to the Regulations but not listed on the Commerce Control List. 15 CFR A. Applying for, obtaining, or using Person by affiliation, ownership, 734.3(c) (2007). any license, License Exception, or control, or position of responsibility in 4 31 CFR part 560 (2007). export control document; the conduct of trade or related services

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may also be made subject to the FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF COMMERCE provisions of the Order. Rachel O’Malley, Office of International Fourth, that the Proposed Charging Affairs, 301–427–8373. United States Patent and Trademark Letter, the Settlement Agreement, and Office this Order shall be made available to the SUPPLEMENTARY INFORMATION: The public. Advisory Committee to the U.S. Section Submission for OMB Review; Fifth, that this Order shall be served to ICCAT will meet October 13–14, Comment Request on Maghazehe and on BIS, and shall be 2011, first in an open session to consider management- and research- The United States Patent and published in the Federal Register. Trademark Office (USPTO) will submit This Order, which constitutes the related information on stock status of to the Office of Management and Budget final agency action in this matter, is Atlantic highly migratory species and (OMB) for clearance the following effective immediately. then in a closed session to discuss sensitive matters. There will be an proposal for collection of information Issued this 22nd day of September, 2011. opportunity for oral public comment under the provisions of the Paperwork Donald G. Salo, Jr., during the October 13, 2011, open Reduction Act (44 U.S.C. chapter 35). Acting Assistant Secretary of Commerce for session. The open session will be from Agency: United States Patent and Export Enforcement. 9 a.m. through 1:30 p.m. The public Trademark Office (USPTO). Title: Patent and Trademark Financial [FR Doc. 2011–24997 Filed 9–28–11; 8:45 am] comment portion of the meeting is Transactions. BILLING CODE P scheduled to begin at approximately 1 Form Number(s): PTO–2038, PTO– p.m. but could begin earlier depending 2231, PTO–2232, PTO–2233, PTO–2234, on the progress of discussions. Written DEPARTMENT OF COMMERCE PTO–2236. comments may also be submitted for the Agency Approval Number: 0651– National Oceanic and Atmospheric October open session by mail, fax or e- 0043. Administration mail and should be received by October Type of Request: Revision of a 7, 2011 (see ADDRESSES). RIN 0648–XA738 currently approved collection. NMFS expects members of the public Burden: 55,901 hours annually. Advisory Committee to the U.S. to conduct themselves appropriately at Number of Respondents: 1,849,771 Section of the International the open session of the meeting. At the responses per year. Commission for the Conservation of beginning of the public comment Avg. Hours per Response: The USPTO Atlantic Tunas (ICCAT); Fall Meeting session, an explanation of the ground estimates that it will take the public rules will be provided (e.g., alcohol in approximately two to six minutes (0.03 AGENCY: National Marine Fisheries the meeting room is prohibited, to 0.10 hours) to gather the necessary Service (NMFS), National Oceanic and speakers will be called to give their information, prepare the appropriate Atmospheric Administration (NOAA), comments in the order in which they form or document, and submit the items Commerce. registered to speak, each speaker will in this collection to the USPTO. ACTION: Notice of public meeting. have an equal amount of time to speak Needs and Uses: Under 35 U.S.C. 41 and speakers should not interrupt one and 15 U.S.C. 1113, as implemented in SUMMARY: In preparation for the 2011 37 CFR 1.16–1.28, 2.6–2.7, and 2.206– International Commission for the another). The session will be structured so that all attending members of the 2.209, the USPTO charges fees for Conservation of Atlantic Tunas (ICCAT) processing and other services related to meeting, the Advisory Committee to the public are able to comment, if they so choose, regardless of the degree of patents, trademarks, and information U.S. Section to ICCAT is announcing products. Customers may submit the convening of its fall meeting. controversy of the subject(s). Those not respecting the ground rules will be payments to the USPTO by several DATES: The meeting will be held asked to leave the meeting. methods, including credit card, deposit October 13–14, 2011. There will be an account, electronic funds transfer (EFT), open session on Thursday, October 13, After the open session, the Advisory and paper check transactions. The 2011, from 9 a.m. through Committee will meet in closed session public uses this collection to pay patent approximately 1:30 p.m. The remainder to discuss sensitive information relating and trademark fees by credit card, of the meeting will be closed to the to upcoming international negotiations establish and manage USPTO deposit public and is expected to end by 5 p.m. regarding the conservation and accounts, request refunds, and set up on October 14. Oral comments can be management of Atlantic highly user profiles. The USPTO uses this presented during the public comment migratory species. collection to process credit card session on October 13, 2011. Special Accommodations payments, handle deposit account Written comments on issues being requests, issue refunds, and provide considered at the meeting will be made The meeting location is physically user accounts for EFT and other available to the Advisory Committee, accessible to people with disabilities. financial transactions. and should be received no later than Requests for sign language Affected Public: Individuals or October 7, 2011 (see ADDRESSES). interpretation or other auxiliary aids households; businesses or other for- ADDRESSES: The meeting will be held at should be directed to Rachel O’Malley profits; and not-for-profit institutions. the Hilton Washington DC/Silver at (301) 427–8373 or Frequency: On occasion. Spring, 8727 Colesville Road, Silver Rachel.O’[email protected] at least 5 Respondent’s Obligation: Required to Spring, MD 20910. Written comments days prior to the meeting date. obtain or retain benefits. should be sent to Rachel O’Malley at OMB Desk Officer: Nicholas A. Fraser, Dated: September 26, 2011. NOAA Fisheries, Office of International e-mail: Affairs, Room 12641, 1315 East-West Rebecca J. Lent, [email protected]. Highway, Silver Spring, MD 20910. Director, Office of International Affairs, Once submitted, the request will be Written comments can also be provided National Marine Fisheries Service. publicly available in electronic format via fax (301–713–2313) or e-mail [FR Doc. 2011–25163 Filed 9–28–11; 8:45 am] through the Information Collection (Rachel.O’[email protected]). BILLING CODE 3510–22–P Review page at http://www.reginfo.gov.

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Paper copies can be obtained by: PLACE: The Council will meet in the Dated: September 26, 2011. • E-mail: Eisenhower Executive Office Building. Leslie Boissiere, [email protected]. This meeting will be streamed live for Executive Director. Include ‘‘0651–0043 copy request’’ in public viewing and a link will be [FR Doc. 2011–25151 Filed 9–26–11; 4:15 pm] the subject line of the message. available on the council’s Web site: BILLING CODE 6050–$$–P • Mail: Susan K. Fawcett, Records http://www.serve.gov/ Officer, Office of the Chief Information communitysolutions. Officer, United States Patent and PUBLIC COMMENT: The public is invited DEPARTMENT OF DEFENSE Trademark Office, P.O. Box 1450, to submit publicly available comments Alexandria, VA 22313–1450. through the Council’s Web site. To send Office of the Secretary Written comments and statements to the Council, please send recommendations for the proposed written statements to the Council’s [Transmittal Nos. 10–71] information collection should be sent on electronic mailbox at 36(b)(1) Arms Sales Notification or before October 31, 2011 to Nicholas [email protected]. The A. Fraser, OMB Desk Officer, via e-mail public can also follow the Council’s AGENCY: Department of Defense, Defense _ _ to Nicholas A. [email protected], or work by visiting its Web site: http:// Security Cooperation Agency. by fax to 202–395–5167, marked to the www.serve.gov/communitysolutions. ACTION: Notice. attention of Nicholas A. Fraser. STATUS: Open. SUMMARY: The Department of Defense is Dated: September 23, 2011. MATTERS TO BE CONSIDERED: The purpose publishing the unclassified text of a Susan K. Fawcett, of this meeting is to review what the section 36(b)(1) arms sales notification. Records Officer, USPTO, Office of the Chief Council has learned through its This is published to fulfill the Information Officer. outreach and other efforts about the requirements of section 155 of Public [FR Doc. 2011–24996 Filed 9–28–11; 8:45 am] following: (1) Effective cross-sector Law 104–164 dated July 21, 1996. BILLING CODE 3510–16–P collaborative initiatives and what makes them best practices, and (2) issues FOR FURTHER INFORMATION CONTACT: Ms. facing young Americans who are neither B. English, DSCA/DBO/CFM, (703) 601– in school nor in the workplace and 3740. CORPORATION FOR NATIONAL AND promising solutions to address this The following is a copy of a letter to COMMUNITY SERVICE challenge. the Speaker of the House of Representatives, Transmittals 10–71 CONTACT PERSON FOR MORE INFORMATION: Sunshine Act Meeting Notice with attached transmittal, policy Leslie Boissiere, Executive Director, justification, and Sensitivity of White House Council for Community The White House Council for Technology. Community Solutions Gives Notice of Solutions, Corporation for National and Their Following Meeting Community Service, 10th Floor, Room Dated: September 23, 2011. 10911, 1201 New York Avenue, NW., Aaron Siegel, DATE AND TIME: Friday, October 14, 2011, Washington, DC 20525. Phone (202) Alternate OSD Federal Register Liaison 9 a.m.–12:30 p.m. Eastern Daylight 606–3910. Fax (202) 606–3464. E-mail: Officer, Department of Defense. Time. [email protected]. BILLING CODE 5001–06–P

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BILLING CODE 5001–06–C

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Transmittal No. 10–71 training equipment, U.S. Government structures, field fortifications, and other Notice of Proposed Issuance of Letter of and contractor engineering, technical such targets. The TOW 2B features a Offer Pursuant to Section 36(b)(1) of the and logistics support services, and other dual-mode sensor and an armament Arms Export Control Act, as Amended related elements of logistical and section equipped with two warheads program support. The estimated cost is different from those used in other TOW (i) Prospective Purchaser: Bahrain. $53 million. versions. The TOW 2B is designed to fly (ii) Total Estimated Value: This proposed sale will contribute to over the top of a tank, where it is less Major Defense Equipment* $38 million. the foreign policy and national security heavily armored, and destroy it from Other ...... 15 million. of the United States by helping to above by simultaneously detonating the improve the security of a major non- Total ...... 53 million. missile’s two explosively formed NATO ally that has been, and continues penetrator warheads downward. The * as defined in Section 47(6) of the Arms Export Control Act. to be, an important force for political fly-over shoot-down flight profile stability and economic progress in the permits the attack of targets in defilade, (iii) Description and Quantity or Middle East. protected by berms or other Quantities of Articles or Services under The proposed sale will improve fortifications. The extended range of the Consideration for Purchase: 44 Bahrain’s capability to meet current and TOW 2B Aero was accomplished with M1152A1B2 Armored High Mobility future armored threats. Bahrain will use minor modifications to the TOW 2B. Multi-Purpose Wheeled Vehicles the enhanced capability as a deterrent to The new aerodynamic feature ensures (HMMWVs), 200 BGM–71E–4B–RF regional threats and to strengthen its stable controllable flight to 4.5 Radio Frequency (RF) Tube-Launched homeland defense. kilometers while using the current Optically-Tracked Wire-Guided Missiles The proposed sale of this equipment propulsion system. The TOW 2B Aero, (TOW–2A), 7 Fly-to-Buy RF TOW–2A and support will not alter the basic with its longer range and faster time to Missiles, 40 BGM–71F–3–RF TOW–2B military balance in the region. target, increases battle space and allows Aero Missiles, 7 Fly-to-Buy RF TOW–2B The prime contractors will be AM commanders the ability to better shape Aero Missiles, 50 BGM–71H–1RF General in South Bend, Indiana, and the battlefield. Bunker Buster Missiles (TOW–2A), 7 Raytheon Missile Systems Corporation 3. If a technologically advanced Fly-to-Buy RF Bunker Buster Missiles in Tucson, Arizona. There are no known adversary were to obtain knowledge of (TOW–2A), 48 TOW–2 Launchers, AN/ offset agreements proposed in the specific hardware and software UAS–12A Night Sight Sets, spare and connection with this potential sale. elements, the information could be used repair parts, support and test Implementation of this proposed sale to develop countermeasures which equipment, publications and technical will not require the assignment of any might reduce weapon system documentation, personnel training and additional U.S. Government or effectiveness or be used in the training equipment, U.S. Government contractor representatives to Bahrain. development of a system with similar or and contractor engineering, technical There will be no adverse impact on advanced capabilities. and logistics support services, and other U.S. defense readiness as a result of this [FR Doc. 2011–25014 Filed 9–28–11; 8:45 am] related elements of logistical and proposed sale. BILLING CODE 5001–06–P program support. (iv) Military Department: Army (UJT). Transmittal No. 10–71 (v) Prior Related Cases, if any: None. Notice of Proposed Issuance of Letter of DEPARTMENT OF DEFENSE (vi) Sales Commission, Fee, etc., Paid, Offer Pursuant to Section 36(b)(1) of the Offered, or Agreed to be Paid: None. Arms Export Control Act Office of the Secretary (vii) Sensitivity of Technology Contained in the Defense Article or Annex [Transmittal Nos. 10–74] Defense Services Proposed to be Sold: Item No. vii 36(b)(1) Arms Sales Notification See Annex attached. (vii) Sensitivity of Technology: (viii) Date Report Delivered to 1. The Radio Frequency (RF) TOW 2A AGENCY: Defense Security Cooperation Congress: 14 Sep 2011. Missile (BGM–71E–4B–RF) is a direct Agency, Department of Defense. Policy Justification attack missile designed to defeat ACTION: Notice. armored vehicles, reinforced urban SUMMARY: The Department of Defense is Bahrain—M1152A1B2 HMMVs and structures, field fortifications and other publishing the unclassified text of a TOW–2A and TOW–2B Missiles such targets. TOW missiles are fired section 36(b)(1) arms sales notification. The Government of Bahrain has from a variety of TOW launchers. The This is published to fulfill the requested a possible sale of 44 TOW 2A missile (both wire & RF) requirements of section 155 of Public M1152A1B2 Armored High Mobility contains two tracker beacons (xenon Law 104–164 dated July 21, 1996. Multi-Purpose Wheeled Vehicles and thermal) for the launcher to track (HMMWVs), 200 BGM–71E–4B–RF and guide the missile in flight. FOR FURTHER INFORMATION CONTACT: Ms. Radio Frequency (RF) Tube-Launched Guidance commands from the launcher B. English, DSCA/DBO/CFM, (703) 601– Optically-Tracked Wire-Guided Missiles are provided to the missile by an RF 3740. The following is a copy of a letter to (TOW–2A), 7 Fly-to-Buy RF TOW–2A link contained within the missile case. the Speaker of the House of Missiles, 40 BGM–71F–3–RF TOW–2B The hardware, software, and technical Representatives, Transmittals 10–74 Aero Missiles, 7 Fly-to-Buy RF TOW–2B publications provided with the sale are with attached transmittal, policy Aero Missiles, 50 BGM–71H–1RF Unclassified. However, the system itself justification, and Sensitivity of Bunker Buster Missiles (TOW–2A), 7 contains sensitive technology that Technology. Fly-to-Buy RF Bunker Buster Missiles instructs the system on how to operate (TOW–2A), 48 TOW–2 Launchers, AN/ in the presence of countermeasures. Dated: September 23, 2011. UAS–12A Night Sight Sets, spare and 2. The Radio Frequency (RF) TOW 2B Aaron Siegel, repair parts, support and test Aero Missile (BGM–71F–3–RF) is a Alternate OSD Federal Register Liaison equipment, publications and technical direct attack missile designed to defeat Officer, Department of Defense. documentation, personnel training and armored vehicles, reinforced urban BILLING CODE 5001–06–P

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Transmittal No. 10–74 The Government of the Kingdom of CA, Smith Detection in Edgewood, MD, Notice of Proposed Issuance of Letter of Saudi Arabia has requested a possible SRCTec, in Syracuse, NY, Northrop Offer Pursuant to Section 36(b)(1)of the sale for 36 M777A2 Howitzers, 54 Grumman Corporation in Apopka, FL, Arms Export Control Act M119A2 Howitzers, 6 AN/TPQ–36(V) and General Dynamics C4 Systems in Fire Finder Radar Systems, 24 Taunton, MA. There are no known (i) Prospective Purchaser: Kingdom of Advanced Field Artillery Tactical Data offset agreements proposed in Saudi Arabia Systems (AFATDS), 17,136 rounds connection with this potential sale. (ii) Total Estimated Value: M107 155mm High Explosive (HE) Implementation of this sale will not Major Defense Equipment* ... $342 million ammunition, 2,304 rounds M549 Other ...... 544 million require the assignment of any U.S. 155mm Rocket Assisted Projectiles Government or contractor Total ...... 886 million (RAPs), 60 M1165A1 High Mobility representatives to the Kingdom of Saudi * as defined in Section 47(6) of the Arms Multipurpose Vehicles (HMMWVs), 120 Arabia. Export Control Act. M1151A1 HMMWVs, 252 M1152A1 HMMWVs, Export Single Channel There will be no adverse impact on (iii) Description and Quantity or Ground And Airborne Radio Systems U.S. defense readiness as a result of this Quantities of Articles or Services under (SINCGARS), electronic support proposed sale. Consideration for Purchase: 36 M777A2 systems, 105mm ammunition, various [FR Doc. 2011–25015 Filed 9–28–11; 8:45 am] Howitzers, 54 M119A2 Howitzers, 6 wheeled/tracked support vehicles, spare BILLING CODE 5001–06–P AN/TPQ–36(V) Fire Finder Radar and repair parts, technical manuals and Systems, 24 Advanced Field Artillery publications, translation services, Tactical Data Systems (AFATDS), training, USG and contractor technical DEPARTMENT OF DEFENSE 17,136 rounds M107 155mm High assistance, and other related elements of Explosive (HE) ammunition, 2,304 Office of the Secretary rounds M549 155mm Rocket Assisted logistical and program support. The Projectiles (RAPs), 60 M1165A1 High estimated cost is $886 million. This proposed sale will contribute to [Transmittal Nos. 11–19] Mobility Multipurpose Vehicles the foreign policy and national security (HMMWVs), 120 M1151A1 HMMWVs, of the United States by helping to 36(b)(1) Arms Sales Notification 252 M1152A1 HMMWVs, Export Single improve the security of a friendly Channel Ground And Airborne Radio country which has been and continues AGENCY: Department of Defense, Defense Systems (SINCGARS), electronic to be an important force for political Security Cooperation Agency. support systems, 105mm ammunition, various wheeled/tracked support stability and economic progress in the ACTION: Notice. vehicles, spare and repair parts, Middle East. The proposed sale will augment the technical manuals and publications, SUMMARY: The Department of Defense is Kingdom of Saudi Arabia’s existing light translation services, training, USG and publishing the unclassified text of a artillery capabilities. The Kingdom of contractor technical assistance, and section 36(b)(1) arms sales notification. Saudi Arabia will use the enhanced other related elements of logistical and This is published to fulfill the capability as a deterrent to regional program support. requirements of section 155 of Public threats and to strengthen its homeland (iv) Military Department: Army (VUI, Law 104–164 dated July 21, 1996. VUJ, VUO, VUP, VUQ) defense. The Kingdom of Saudi Arabia, (v) Prior Related Cases, if any: None which already has 155mm and 105mm FOR FURTHER INFORMATION CONTACT: Ms. (vi) Sales Commission, Fee, etc., Paid, howitzers and support vehicles and B. English, DSCA/DBO/CFM, (703) 601– Offered, or Agreed to be Paid: None equipment in its inventory, will have no 3740. (vii) Sensitivity of Technology difficulty absorbing this equipment into The following is a copy of a letter to Contained in the Defense Article or its armed forces. the Speaker of the House of Defense Services Proposed to be Sold: The proposed sale of this equipment Representatives, Transmittal 11–19 with See Attached Annex will not alter the basic military balance attached transmittal and policy (viii) Date Report Delivered to in the region. justification. Congress: 15 Sep 2011 The prime contractors will be AM General, LLC in South Bend, IN, BAE Dated: September 23, 2011. POLICY JUSTIFICATION Systems in the United Kingdom & Aaron Siegel, Kingdom of Saudi Arabia—Howitzers, Hattiesburg, MS, ITT Defense and Alternate OSD Federal Register Liaison Radars, HMMWVs, Ammunition, and Information Solutions in McLean, VA, Officer, Department of Defense. Related Support Thales Raytheon Systems in Fullerton BILLING CODE 5001–06–P

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BILLING CODE 5001–06–C Major Defense Equipment * $0 million. and logistics support for F–16 aircraft at Transmittal No. 11–19 Other ...... 500 million. Luke Air Force Base, Arizona to include flight training, supply and maintenance Notice of Proposed Issuance of Letter of Offer Pursuant to Section 36(b)(1) of the Total ...... 500 million. support, spare and repair parts, support Arms Export Control Act * As defined in Section 47(6) of the Arms equipment, program management, Export Control Act. publications, documentation, personnel (i) Prospective Purchaser: Taipei training and training equipment, fuel (iii) Description and Quantity or Economic and Cultural Representative and fueling services, and other related Quantities of Articles or Services under Office in the United States pursuant to program requirements necessary to P.L. 96–8 Consideration for Purchase: (ii) Total Estimated Value: continuation of a pilot training program

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sustain a long-term CONUS training peace and stability in that region. It is The prime contractor for the logistics program. vital to the U.S. national interest to support will be L–3 Communications (iv) Military Department: Air Force assist the recipient in developing and Corporation in Greenville, Texas. There (NHE). maintaining a strong and ready self- are no known offset agreements (v) Prior Related Cases, if any: FMS defense capability, which will proposed in connection with this Case NHA–$ 84 million–18Dec92. FMS contribute to an acceptable military potential sale. Case NHC–$261 million–01Jul99. FMS balance in the area. This proposed sale There will be no adverse impact on Case NHD–$280 million–29Nov07. is consistent with those objectives. U.S. defense readiness as a result of this (vi) Sales Commission, Fee, etc., Paid, The recipient and the U.S. Air Force proposed sale. Offered, or Agreed to be Paid: None. (USAF) will have the opportunity to fly [FR Doc. 2011–25017 Filed 9–28–11; 8:45 am] (vii) Sensitivity of Technology together, which will support disaster BILLING CODE 5001–06–P Contained in the Defense Article or relief missions, non-combatant Defense Services Proposed to be Sold: evacuation operations, and other None. DEPARTMENT OF DEFENSE contingency situations. These services (viii) Date Report Delivered to and equipment are used in the Congress: 21 Sep 2011. Office of the Secretary continuing pilot training program at Policy Justification Luke Air Force Base, Arizona. This [Transmittal Nos. 11–27] program enables the recipient to Taipei Economic and Cultural 36(b)(1) Arms Sales Notification Representative Office in the United develop mission ready and experienced States—Pilot Training Program pilots through CONUS training. The AGENCY: Department of Defense, Defense training provides a ‘‘capstone’’ course Security Cooperation Agency. The Taipei Economic and Cultural that takes experienced pilots and ACTION: Notice. Representative Office in the United significantly improves their tactical States has requested a possible sale for proficiency. Training is a key SUMMARY: The Department of Defense is the continuation of a pilot training component of combat effectiveness, and publishing the unclassified text of a program and logistics support for F–16 recipient pilots who have graduated section 36(b)(1) arms sales notification. aircraft at Luke Air Force Base, Arizona from the existing program have This is published to fulfill the to include flight training, supply and performed brilliantly. requirements of section 155 of Public maintenance support, spare and repair Law 104–164 dated July 21, 1996. parts, support equipment, program The proposed sale of pilot training FOR FURTHER INFORMATION CONTACT: Ms. management, publications, and support will not alter the basic B. English, DSCA/DBO/CFM, (703) 601– documentation, personnel training and military balance in the region. 3740. training equipment, fuel and fueling Implementation of this sale will not The following is a copy of a letter to services, and other related program require the assignment of any U.S. the Speaker of the House of requirements necessary to sustain a Government or contractor Representatives, Transmittal 11–27 with long-term CONUS training program. The representatives to the recipient. The attached transmittal, policy justification, estimated cost is $500 million. USAF will provide instruction, flight and Sensitivity of Technology. This sale is consistent with United operations, and maintenance support States policy and Public Law 96–8. and facilities. Approximately 90 U.S. Dated: September 23, 2011. The recipient is one of the major contractors will provide aircraft Aaron Siegel, political and economic powers in Asia maintenance and logistics support for Alternate OSD Federal Register Liaison and the Western Pacific and a key the F–16 aircraft at Luke Air Force Base, Officer, Department of Defense. partner of the United States in ensuring Arizona. BILLING CODE 5001–06–P

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Transmittal No. 11–27 services, engineering and technical level of classified information that could Notice of Proposed Issuance of Letter of support, and other related elements of be disclosed by a proposed sale or by Offer Pursuant to Section 36(b)(1) of the program support. The estimated cost is testing of the end item is Secret; the Arms Export Control Act, as Amended $65 million. highest level that must be disclosed for This proposed sale will contribute to (U) production, maintenance, or training is the foreign policy and national security Confidential. Reverse engineering could (i) Prospective Purchaser: United Arab of the United States by helping to reveal Confidential information. Emirates. improve the security of a friendly Vulnerability data, countermeasures, (ii) Total Estimated Value: country that has been, and continues to vulnerability/susceptibility analyses, Major Defense Equipment * $65 million be an important force for political and threat definitions are classified up Other ...... 0 stability and economic progress in the to Secret. Middle East. 2. Susceptibility of the AGM–114R3 Total ...... 65 million UAE intends to use these defense * As defined in Section 47(6) of the Arms HELLFIRE II to diversion or exploitation Export Control Act. articles and services to modernize its is considered low risk. Components of armed forces and expand its existing the system are also considered highly (iii) Description and Quantity or Army architecture to counter threats resistant to reverse engineering. Quantities of Articles or Services under posed by potential attack. This proposed Consideration for Purchase: 500 AGM– sale will also contribute to the UAE [FR Doc. 2011–25019 Filed 9–28–11; 8:45 am] 114R3 HELLFIRE II missiles, containers, military’s goal of updating its capability BILLING CODE 5001–06–P spare and repair parts, support and test while further enhancing its equipment, repair and return support, interoperability with the U.S. and other training equipment and personnel allies. This capability will serve to deter DEPARTMENT OF DEFENSE training, U.S. Government and potential attacks against strategic targets Office of the Secretary contractor logistics, Quality Assurance across the UAE, to include Team support services, engineering and infrastructure and resources vital to the technical support, and other related security of the U.S. [Transmittal Nos. 11–39] elements of program support. The proposed sale of this weapon 36(b)(1) Arms Sales Notification (iv) Military Department: Army (ZUF system will not alter the basic military Amendment 1) . balance in the region. (v) Prior Related Cases, if any: FMS AGENCY: Department of Defense, Defense The prime contractor is HELLFIRE Security Cooperation Agency. Case JAH–$402 million–11Dec91. FMS Systems Limited Liability Company in Case ZUF–$375 million–22Dec08. Orlando, Florida. There are no known ACTION: Notice. (vi) Sales Commission, Fee, etc., Paid, offset agreements proposed in Offered, or Agreed to be Paid: None. connection with this sale. SUMMARY: The Department of Defense is (vii) Sensitivity of Technology Implementation of this proposed sale publishing the unclassified text of a Contained in the Defense Article or will require the assignment of a U.S. section 36(b)(1) arms sales notification. Defense Services Proposed to be Sold: Government Quality Assurance Team to This is published to fulfill the See Attached Annex. the United Arab Emirates. requirements of section 155 of Public (viii) Date Report Delivered to There will be no adverse impact on Law 104–164 dated July 21, 1996. Congress: 21 Sep 2011. U.S. defense readiness as a result of this FOR FURTHER INFORMATION CONTACT: Ms. Policy Justification proposed sale. B. English, DSCA/DBO/CFM, (703) 601– United Arab Emirates—AGM–114R3 Transmittal No. 11–27 3740. The following is a copy of a letter to HELLFIRE Missiles Notice of Proposed Issuance of Letter of the Speaker of the House of The Government of the United Arab Offer Pursuant to Section 36(b)(1) of the Representatives, Transmittal 11–39 with Emirates (UAE) has requested a possible Arms Export Control Act attached transmittal, policy justification, sale 500 AGM–114R3 HELLFIRE II Annex and Sensitivity of Technology. missiles, containers, spare and repair parts, support and test equipment, Item No. vii Dated: September 23, 2011. repair and return support, training (vii) Sensitivity of Technology: Aaron Siegel, equipment and personnel training, U.S. 1. The highest level for release of the Alternate OSD Federal Register Liaison Government and contractor logistics, AGM–114R3 HELLFIRE II is Secret, Officer, Department of Defense. Quality Assurance Team support based upon the software. The highest BILLING CODE 5001–06–P

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BILLING CODE 5001–06–C

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Transmittal No. 11–39 engineering and design study on kits; 16 GBU–31V1 Joint Direct Attack Notice of Proposed Issuance of Letter of replacing existing F100–PW–220 Munitions (JDAMs) kits; 80 GBU–38 Offer Pursuant to Section 36(b)(1) of the engines with F100–PW–229 engines, JDAM kits; Dual Mode/Global Arms Export Control Act update of Modular Mission Computers, Positioning System Laser-Guided Bombs cockpit multifunction displays, (16 GBU–10 Enhanced PAVEWAY II or (i) Prospective Purchaser: Taipei communication equipment, Joint GBU–56 Laser JDAM, 80 GBU–12 Economic and Cultural Representative Mission Planning Systems, Enhanced PAVEWAY II or GBU–54 Office in the United States pursuant to maintenance, construction, repair and Laser JDAM, 16 GBU–24 Enhanced the Taiwan Relations Act (P. L. 96–8) return, aircraft tanker support, aircraft PAVEWAY III); 64 CBU–105 Sensor and Executive Order 13014. ferry services, aircraft and ground Fused Weapons with Wind-Corrected (ii) Total Estimated Value: support equipment, spare and repair Munition Dispensers (WDMD); 153 Major Defense Equipment * $5.050 billion parts, publications and technical LAU–129 Launchers with missile Other ...... 250 billion documentation, personnel training and interface; upgrade of 158 APX–113 training equipment, U.S. Government Advanced Identification Friend or Foe Total ...... 5.300 billion and contractor engineering, technical, Combined Interrogator Transponders; * As defined in Section 47(6) of the Arms and logistics support, test equipment, Export Control Act. and HAVE GLASS II applications. Also site surveys, and other related elements included are: ammunition, alternate (iii) Description and Quantity or of logistics support. mission equipment, engineering and Quantities of Articles or Services under (iv) Military Department: Air Force design study on replacing existing Consideration for Purchase: retrofit of (QBZ). F100–PW–220 engines with F100–PW– 145 F–16A/B aircraft that includes sale (v) Prior Related Cases, if any: FMS 229 engines, update of Modular Mission of: 176 Active Electronically Scanned Case SKA-$5.4B–Nov92. Computers, cockpit multifunction Array (AESA) radars; 176 Embedded (vi) Sales Commission, Fee, etc., Paid, displays, communication equipment, Global Positioning System Inertial Offered, or Agreed to be Paid: None. Joint Mission Planning Systems, (vii) Sensitivity of Technology Navigation Systems; 176 ALQ–213 maintenance, construction, repair and Contained in the Defense Article or Electronic Warfare Management return, aircraft tanker support, aircraft Defense Services Proposed to be Sold: systems; upgrade 82 ALQ–184 ferry services, aircraft and ground See Annex attached. Electronic Countermeasures (ECM) pods support equipment, spare and repair (viii) Date Report Delivered to to incorporate Digital Radio Frequency parts, publications and technical Congress: 21 Sep 2011. Memory (DRFM) technology or documentation, personnel training and purchase new ECM pods (AN/ALQ– Policy Justification training equipment, U.S. Government 211(V)9 Airborne Integrated Defensive Taipei Economic and Cultural and contractor engineering, technical, Electronic Warfare Suites (AIDEWS) and logistics support, test equipment, with DRFM, or AN/ALQ–131 pods with Representative Office in the United States—Retrofit of F–16A/B Aircraft site surveys, and other related elements DRFM); 86 tactical data link terminals; of logistics support. The estimated cost upgrade 28 electro-optical infrared The Taipei Economic and Cultural is $5.3 billion. targeting Sharpshooter pods; 26 AN/ Representative Office in the United This sale is consistent with United AAQ–33 SNIPER Targeting Systems or States has requested a retrofit of 145 F– States law and policy as expressed in AN/AAQ–28 LITENING Targeting 16A/B aircraft that includes sale of: 176 Public Law 96–8. Systems; 128 Joint Helmet Mounted Active Electronically Scanned Array Cueing Systems; 128 Night Vision (AESA) radars; 176 Embedded Global This proposed sale serves U.S. Goggles; 140 AIM–9X SIDEWINDER Positioning System Inertial Navigation national, economic, and security Missiles; 56 AIM–9X Captive Air Systems; 176 ALQ–213 Electronic interests by supporting the recipient’s Training Missiles; 5 AIM–9X Telemetry Warfare Management systems; upgrade continuing efforts to modernize its kits; 16 GBU–31V1 Joint Direct Attack 82 ALQ–184 Electronic armed forces and enhance its defensive Munitions (JDAMs) kits; 80 GBU–38 Countermeasures (ECM) pods to capability. The proposed sale will help JDAM kits; Dual Mode/Global incorporate Digital Radio Frequency improve the security of the recipient Positioning System Laser-Guided Bombs Memory (DRFM) technology or and assist in maintaining political (16 GBU–10 Enhanced PAVEWAY II or purchase new ECM pods (AN/ALQ– stability, military balance, and GBU–56 Laser JDAM, 80 GBU–12 211(V)9 Airborne Integrated Defensive economic progress in the region. Enhanced PAVEWAY II or GBU–54 Electronic Warfare Suites (AIDEWS) The proposed retrofit improves both Laser JDAM, 16 GBU–24 Enhanced with DRFM, or AN/ALQ–131 pods with the capabilities and the reliability of the PAVEWAY III); 64 CBU–105 Sensor DRFM); 86 tactical data link terminals; recipient’s fleet of F–16A/B aircraft. The Fused Weapons with Wind-Corrected upgrade 28 electro-optical infrared improved capability, survivability, and Munition Dispensers (WDMD); 153 targeting Sharpshooter pods; 26 AN/ reliability of newly retrofitted F–16A/B LAU–129 Launchers with missile AAQ–33 SNIPER Targeting Systems or aircraft will greatly enhance the interface; upgrade of 158 APX–113 AN/AAQ–28 LITENING Targeting recipient’s ability to defend its borders. Advanced Identification Friend or Foe Systems; 128 Joint Helmet Mounted The prime contractor will be the Combined Interrogator Transponders; Cueing Systems; 128 Night Vision Lockheed Martin Aeronautics Company and HAVE GLASS II applications. Goggles; 140 AIM–9X SIDEWINDER in Fort Worth, Texas. This proposed Also included are: ammunition, Missiles; 56 AIM–9X Captive Air sale may involve the following alternate mission equipment, Training Missiles; 5 AIM–9X Telemetry additional contractors:

BAE Advance Systems ...... Greenland, New York Boeing Integrated Defense Systems ...... St Louis, Missouri Goodrich ISR Systems ...... Danbury, Connecticut ITT Defense Electronics and Services ...... McLean, Virginia

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ITT Integrated Structures ...... North Amityville, New York ITT Night Vision ...... Roanoke, Virginia L3 Communications ...... Arlington, Texas Lockheed Martin Missile and Fire Control ...... Dallas, Texas Lockheed Martin Simulation, Training, and Support ...... Fort Worth, Texas Marvin Engineering Company ...... Inglewood, California Northrop-Grumman Electro-Optical Systems ...... Garland, Texas Northrop-Grumman Electronic Systems ...... Baltimore, Maryland Pratt & Whitney ...... East Hartford, Connecticut Raytheon Company ...... Goleta, California Raytheon Space and Airborne Systems ...... El Segundo, California Raytheon Missile System ...... Tucson, Arizona Symetrics Industries ...... Melbourne, Florida Terma ...... Denmark

At this time there are no known offset The hardware, software, and data and ground targets. Hardware is agreements proposed in connection identified are classified to protect Unclassified; technical data and with this potential sale. vulnerabilities, design and performance documents are classified up to Secret. Implementation of this sale will parameters and other similar critical 7. The AN/AAQ–33 SNIPER targeting require the assignment of five (5) information. system is Unclassified but contains contractor representatives to the 3. The AESA radar (manufacturer to technology representing the latest state- recipient to provide engineering and be determined) contains the latest of-the-art in several areas. Information technical support for the first two years digital technology available in an on performance and inherent of the program. Additionally, electronically scanned antenna, vulnerabilities is classified Secret. approximately two trips per year will be including higher processor power, Software (object code) is classified required for U.S. Government personnel higher transmission power, more Confidential. and contractor representatives for the sensitive receiver electronics, ground 8. The AN/AAQ–28 LITENING duration of the program for program and moving detection capability, and targeting system is Unclassified but technical support. Synthetic Aperture Radar (SAR), which contains technology representing the There will be no adverse impact on creates higher-resolution ground maps latest state-of-the-art in several areas. U.S. defense readiness as a result of this from a greater distance than previous Information on performance and proposed sale. versions of the F–16 radar. The retrofit inherent vulnerabilities is classified Secret. Software (object code) is Transmittal No. 11–39 features an increase in detection range of air targets, an increase in processing classified Confidential. Sensitive Notice of Proposed Issuance of Letter of speed and memory, as well as elements include the forward looking Offer Pursuant to Section 36(b)(1) of the significant improvements in all modes, infrared (FLIR) sensors, Laser Pulse Arms Export Control Act jam resistance, and false alarm rates. Interval Modulation (PIM) and doublet Annex Complete hardware is classified coding, and the AGM–65 Missile Confidential; major components and Boresight Correlator (MBC), and ECCM Item No. vii subsystems are classified Confidential; features that increase capability in a (vii) Sensitivity of Technology: software is classified Secret; and jamming environment. 1. This sale will involve the release of technical data and documentation are 9. The AIM–9X SIDEWINDER Missile sensitive technology to Taiwan. The F– classified up to Secret. is an air-to-air guided missile that 16 A/B retrofit modification will 4. The AN/APX–113 Identification employs a passive infrared (IR) target modernize the existing fleet of Taiwan Friend or Foe (IFF) system is acquisition system that features digital aircraft, equipping the F–16 airframe Unclassified as only commercial IFF technology and micro-miniature solid- with advanced avionics and systems. will be offered. state electronics. The AIM–9X All-Up- 2. Sensitive and/or classified (up to 5. The AN/ALQ–184, AN/ALQ–131, Round (AUR) is Confidential, major Secret) elements of the proposed retrofit or AN/ALQ–211V9 Airborne Integrated components and subsystems range from accessories, components, and associated Defensive Electronic Warfare Suite Unclassified to Confidential, and software: AESA Radar; AN/APX–113 (AIDEWS) provides passive radar technical data and other documentation Advanced Identification Friend or Foe warning, wide spectrum Digital RF are classified up to Secret. (AIFF); ALQ–213 Electronic Warfare Memory (DRFM) based jamming, and 10. The CBU–105D/B Sensor Fused Management System; AN/ALQ–184, control and management of the entire Weapon (SFW) is an advanced 1,000- AN/ALQ–131, or AN/ALQ–211V9 EW system. The system is included in pound class cluster bomb munition AIDEWS; AN/AAQ–33 SNIPER an external pod that can be mounted on containing sensor fused sub-munitions Targeting Pod or AN/AAQ–28 a properly configured F–16. The that are designed to attack and defeat a LITENING Advanced Targeting Pod; commercially developed system wide range of moving or stationary land Embedded Global Positioning System/ software and hardware is Unclassified. and maritime threats. The SFW meets Inertial Navigation System, and HAVE The system is classified Secret when U.S. policy regarding cluster munition GLASS I/II without infrared top coat. loaded with a U.S.-derived EW safety standards. Additional sensitive areas include database. Major components include the SUU– operating manuals and maintenance 6. The Joint Helmet Mounted Cueing 66 Tactical Munitions Dispenser (TMD), technical orders containing performance System (JHMCS) is a modified HGU–55/ ten (10) BLU–108 sub-munitions, each information, operating and test P helmet that incorporates a visor- with four (4) ‘‘hockey puck’’ shaped procedures, and other information projected Heads-Up Display (HUD) to skeet infrared sensing projectiles for a related to support operations and repair. cue weapons and aircraft sensors to air total of forty (40) warheads. The

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munition will be delivered in its All- added to 500lb and 2000lb class of weapon system effectiveness or be used Up-Round (AUR) configuration. This bombs. These weapons improve the in the development of a system with configuration is Unclassified. accuracy of unguided, general-purpose similar or advanced capabilities. 11. The GBU–24 Enhanced bombs. The GPS guidance allows for [FR Doc. 2011–25021 Filed 9–28–11; 8:45 am] PAVEWAY III (EPIII) is a low level laser delivery in adverse weather. The laser BILLING CODE 5001–06–P and GPS-guided munitions that can be guidance mode of these weapons allows employed at high, medium and low for engagement of some mobile targets. altitudes. Information revealing target The built-up weapons with components DEPARTMENT OF DEFENSE designation tactics and associated are Unclassified. Information revealing aircraft maneuvers, the probability of employment tactics, operational Office of the Secretary destroying specific/peculiar targets, parameters, the probability of destroying vulnerabilities regarding targets, vulnerabilities regarding [Transmittal Nos. 11–34] countermeasures and the countermeasures and the electromagnetic environment is electromagnetic environment is 36(b)(1) Arms Sales Notification classified Secret. Information revealing classified up to Confidential. test boundaries, operational envelop 13. The Joint Direct Attack Munition AGENCY: Defense Security Cooperation and release points, the probability of (JDAM) is a guidance tail kit that Agency, Department of Defense. destroying common/unspecified targets, converts unguided free-fall bombs into ACTION: the number of simultaneous lasers the accurate, adverse weather ‘‘smart’’ Notice. laser seeker head can discriminate, the munitions. With the addition of a new SUMMARY: terminal impact conditions, the tail section that contains an inertial The Department of Defense is operational flight programming, laser navigational system and a global publishing the unclassified text of a seeker sensitivity and range, laser seeker positioning system guidance control section 36(b)(1) arms sales notification. field of view and field of regard, laser unit, JDAM improves the accuracy of This is published to fulfill the seeker tracking gate widths, laser pulse unguided, general-purpose bombs in requirements of section 155 of Public stability requirements, laser pulse width any weather condition. JDAM can be Law 104–164 dated July 21, 1996. discrimination details, and data on the launched from very low to very high FOR FURTHER INFORMATION CONTACT: Ms. radar/infra-red frequency is classified altitudes in a dive, toss and loft, or in B. English, DSCA/DBO/CFM, (703) 601– Confidential. straight and level flight with an on-axis 3740. 12. The Dual Mode Weapon— or off-axis delivery. JDAM enables The following is a copy of a letter to Enhanced PAVEWAY II (EPW) and multiple weapons to be directed against the Speaker of the House of Laser Joint Direct Attack Munition single or multiple targets on a single Representatives, Transmittal 11–34 with (LJDAM). Dual Mode weapons combine pass. The JDAM AUR and all of its attached transmittal and policy laser and GPS guidance modes into a components are unclassified, technical justification. single weapon. Both the EPW and data for JDAM is classified up to Secret. LJDAM weapons are built by adding 14. If a technologically advanced Dated: September 23, 2011. aerodynamic stabilization kits, guidance adversary were to obtain knowledge of Aaron Siegel, and control units, antennas and seeker the specific hardware and software, the Alternate OSD Federal Register Liaison components to the nose, tail and body information could be used to develop Officer, Department of Defense. of general purpose bombs. They can be countermeasures, which might reduce BILLING CODE 5001–06–P

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BILLING CODE 5001–06–C

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Transmittal No. 11–34 POLICY JUSTIFICATION Implementation of this sale will not require the assignment of any additional Notice of Proposed Issuance of Letter of Taipei Economic and Cultural U.S. Government personnel or Offer Pursuant to Section 36(b)(1) of the Representative Office in the United contractor representatives to the Arms Export Control Act States—Foreign Military Sales Order II recipient. (i) Prospective Purchaser: Taipei (FMSO II) There will be no adverse impact on Economic and Cultural Representative The Taipei Economic and Cultural U.S. defense readiness as a result of this Office in the United States pursuant to Representative Office in the United proposed sale. the Taiwan Relations Act (P. L. 96–8) States has requested a Foreign Military and Executive Order 13014. Sales Order II (FMSO II) to provide [FR Doc. 2011–25020 Filed 9–28–11; 8:45 am] (ii) Total Estimated Value: funds for blanket order requisitions, BILLING CODE 5001–06–P Major Defense Equipment* ..... $ 0 million under the Cooperative Logistics Supply Other ...... 52 million Agreement (CLSSA) for spare parts in support of F–16A/B, F–5E/F, C–130H, DEPARTMENT OF DEFENSE Total ...... 52 million and Indigenous Defense Fighter (IDF) Office of the Secretary * As defined in Section 47(6) of the Arms aircraft. The estimated cost is $52 Export Control Act. million. (iii) Description and Quantity or This sale is consistent with United [Transmittal Nos. 11–26] Quantities of Articles or Services under States law and policy as expressed in Consideration for Purchase: a Foreign Public Law 96–8. 36(b)(1) Arms Sales Notification Military Sales Order II (FMSO II) to This proposed sale serves U.S. AGENCY: Department of Defense, Defense provide funds for blanket order national, economic, and security Security Cooperation Agency. requisitions, under the Cooperative interests by supporting the recipient’s Logistics Supply Agreement (CLSSA) continuing efforts to modernize its ACTION: Notice. for spare parts in support of F–16A/B, armed forces and enhance its defensive F–5E/F, C–130H, and Indigenous capability. The proposed sale will help SUMMARY: The Department of Defense is Defense Fighter aircraft. improve the security of the recipient publishing the unclassified text of a (iv) Military Department: Air Force and assist in maintaining political section 36(b)(1) arms sales notification. (KDN) stability, military balance, and This is published to fulfill the (v) Prior Related Cases, if any: economic progress in the region. requirements of section 155 of Public FMS Case KAV—$2.7M–Nov67 The recipient requires continuing Law 104–164 dated July 21, 1996. FMS Case KDE—$40M–Nov95 procurement and repair of aircraft spare FOR FURTHER INFORMATION CONTACT: Ms. FMS Case KDI—$48M–Mar06 parts through the USG’s FMSO II B. English, DSCA/DBO/CFM, (703) 601– FMS Case KDJ—$48M–Jan08 program in order to sustain and keep 3740. FMS Case KDK—$209M–Feb09 flyable its military fleets of F–16, F–5, The following is a copy of a letter to FMS Case KDL—$48M–Oct08 C–130, and IDF aircraft. The spare parts the Speaker of the House of FMS Case KDM—$48M–May11 to be procured and/or repaired under Representatives, Transmittal 11–26 with this proposed sale are critical for (vi) Sales Commission, Fee, etc., Paid, attached transmittal, policy justification, maintaining their fighter and transport Offered, or Agreed to be Paid: None and Sensitivity of Technology. (vii) Sensitivity of Technology aircraft in operational condition. Contained in the Defense Article or Procurement of these items will be Dated: September 23, 2011. Defense Services Proposed to be Sold: from many contractors providing similar Aaron Siegel, None items to the U.S. forces. There are no Alternate OSD Federal Register Liaison (viii) Date Report Delivered to known offset agreements proposed in Officer, Department of Defense. Congress: 21 Sep 2011 connection with this potential sale. BILLING CODE 5001–01–P

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BILLING CODE 5001–06–C

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Transmittal No. 11–26 Qatar is host to the US AFCENT forces computers, and MH–60R dedicated Notice of Proposed Issuance of Letter of and serves as a critical forward- operational software. The navigation Offer Pursuant to Section 36(b)(1) of the deployed location in the region. suite includes the LN–100G inertial The proposed sale of the MH–60R Arms Export Control Act, as amended navigation system with embedded SEAHAWK helicopters will improve global positioning system (GPS). The (i) Prospective Purchaser: Qatar. Qatar’s capability to meet current and helicopter is equipped with mission (ii) Total Estimated Value: future anti-surface warfare threats. Qatar systems including the APS–153 Multi- Major Defense Equipment * $300 million will use the enhanced capability to Mode Radar, the AN/ALQ–210 Other ...... 400 million strengthen its homeland defense. The Electronic Support Measures System MH–60R helicopters will supplement (ESM), and the AN/AAS–44 Multi- Total ...... 750 million and eventually replace the Qatar Air Spectral Targeting Forward Looking * As defined in Section 47(6) of the Arms Force’s aging maritime patrol Infrared (MTS FLIR) system. Self Export Control Act. helicopters. Qatar will have no Protection systems include the AN/ (iii) Description and Quantity or difficulty absorbing these helicopters AAR–47 Missile Warning Set, AN/ALQ– Quantities of Articles or Services under into its armed forces. 144A IR Counter Measure System Consideration for Purchase: 6 MH–60R The proposed sale of this equipment (IRCM), and the AN/ALE–47chaff and SEAHAWK Multi-Mission Helicopters, and support will not alter the basic flare decoy dispenser. 13 T–700 GE 401C Engines (12 installed military balance in the region. 2. If a technologically advanced and 1 spare), communication The prime contractors will be adversary were to obtain knowledge of equipment, support equipment, spare Sikorsky Aircraft Corporation in the specific hardware and software and repair parts, tools and test Stratford, Connecticut, Lockheed Martin elements, the information could be used equipment, technical data and in Owego, New York, and General to develop countermeasures which publications, personnel training and Electric in Lynn, Massachusetts. There might reduce weapon system training equipment, U.S. government are no known offset agreements effectiveness or be used in the and contractor engineering, technical, proposed in connection with this development of a system with similar or and logistics support services, and other potential sale. advanced capabilities. related elements of logistics support. Implementation of this proposed sale [FR Doc. 2011–25018 Filed 9–28–11; 8:45 am] (iv) Military Department: Navy (SAF). will require the assignment of ten BILLING CODE 5001–06–P (v) Prior Related Cases, if any: None. contractor representatives to Qatar on an (vi) Sales Commission, Fee, etc., Paid, intermittent basis over the life of the Offered, or Agreed to be Paid: None. case to support delivery of the MH–60R DEPARTMENT OF DEFENSE (vii) Sensitivity of Technology helicopters and provide support and Contained in the Defense Article or equipment familiarization. Office of the Secretary Defense Services Proposed to be Sold: There will be no adverse impact on See Annex attached. U.S. defense readiness as a result of this [Transmittal Nos. 11–17] (viii) Date Report Delivered to proposed sale. Congress: 21 Sep 2011. 36(b)(1) Arms Sales Notification Transmittal No. 11–26 Policy Justification Notice of Proposed Issuance of Letter of AGENCY: Department of Defense, Defense Qatar—MH–60R Multi-Mission Offer Pursuant to Section 36(b)(1) of the Security Cooperation Agency. Helicopters Arms Export Control Act ACTION: Notice. The Government of Qatar has Annex requested a possible sale of 6 MH–60R SUMMARY: The Department of Defense is SEAHAWK Multi-Mission Helicopters, Item No. vii publishing the unclassified text of a 13 T–700 GE 401C Engines (12 installed (vii) Sensitivity of Technology: section 36(b)(1) arms sales notification. and 1 spare), communication 1. The MH–60R SEAHAWK Multi- This is published to fulfill the equipment, support equipment, spare Mission Helicopter contains new requirements of section 155 of Public and repair parts, tools and test generation technology. It is equipped for Law 104–164 dated July 21, 1996. equipment, technical data and a range of missions including Anti- FOR FURTHER INFORMATION CONTACT: Ms. publications, personnel training and Surface Warfare (ASuW), Search and B. English, DSCA/DBO/CFM, (703) 601– training equipment, U.S. government Rescue, Naval Gun Fire Support, 3740. Surveillance, Communications Relay, and contractor engineering, technical, The following is a copy of a letter to Logistics Support, Personnel Transfer, and logistics support services, and other the Speaker of the House of and Vertical Replenishment. The fully related elements of logistics support. Representatives, Transmittal 11–17 with integrated glass cockpit is equipped The estimated cost is $750 million. attached transmittal, policy justification, This proposed sale will contribute to with four 8 inch by 10 inch full color and Sensitivity of Technology. the foreign policy and national security multi-function mission and flight of the United States by helping to displays that are night vision goggle Dated: September 23, 2011. improve the security of a friendly compatible and sun light readable. The Aaron Siegel, country that has been, and continues to pilots and aircrew have common Alternate OSD Federal Register Liaison be, an important force for political and programmable keysets, mass memory Officer, Department of Defense. economic progress in the Middle East. unit, mission and flight management BILLING CODE 5001–06–P

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BILLING CODE 5001–06–C

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Transmittal No. 11–17 of the United States by helping to to be provided consists of that which is Notice of Proposed Issuance of Letter of improve the security of a friendly necessary for the operation, Offer Pursuant to Section 36(b)(1) of the country that has been, and continues to maintenance, and repair (through Arms Export Control Act, as Amended be an important force for political intermediate level) of the data link stability and economic progress in the terminal, installed systems, and related (i) Prospective Purchaser: United Arab Middle East. software. Emirates. The MIDS terminal will increase pilot 2. If a technologically advanced (ii) Total Estimated Value: operational effectiveness by at-a-glance adversary were to obtain knowledge of Major Defense Equipment * $27 million. portrayal of targets, threats, and friendly the specific hardware and software Other ...... 374 million. forces on an easy-to-understand relative elements, the information could be used position display. This proposed system Total ...... 401 million. to develop countermeasures or will increase combat effectiveness while * As defined in Section 47(6) of the Arms equivalent systems which might reduce Export Control Act. reducing the threat of friendly fire. The weapon system effectiveness or be used system will foster interoperability with in the development of a system with (iii) Description and Quantity or the U.S. Air Force and other countries. similar or advanced capabilities. Quantities of Articles or Services under The MIDS/LVT will provide allied [FR Doc. 2011–25016 Filed 9–28–11; 8:45 am] Consideration for Purchase: 107 Link 16 forces greater situational awareness in Multifunctional Information any coalition operation. The United BILLING CODE 5001–06–P Distribution System/Low Volume Arab Emirates will have no difficulty Terminals (MIDS/LVT) to be installed absorbing this additional capability into DEPARTMENT OF DEFENSE on the United Arab Emirates’ F–16 its Air Force. aircraft and ground command and The proposed sale of this weapon Office of the Secretary control sites, engineering/integration system will not alter the basic military services, aircraft modification and balance in the region. Membership of the Performance installation, spare and repair parts, There are several manufacturers of the Review Board support and test equipment, repair and Link 16 MIDS–LVT. A prime contractor return support, training equipment and will be selected during the negotiating AGENCY: Office of the Secretary (OSD), personnel training, U.S. Government process. There are no known offset Department of Defense (DoD). and contractor logistics, engineering and agreements proposed in connection ACTION: Notice of board membership. technical support, interface with ground with this potential sale. command and control centers and Implementation of this proposed sale SUMMARY: This notice announces the ground repeater sites, and other related will require the assignment of appointment of the Department of elements of program support. additional U.S. Government and Defense, Fourth Estate, Performance (iv) Military Department: Air Force contractor representatives to the UAE. Review Board (PRB) members, to (QAE). The number of U.S. Government and include the Joint Staff, Defense Field (v) Prior Related Cases, if any: FMS contractor representatives will be Activities, the U.S. Court of Appeals for Case SAA–$113.8M–24Aug00. determined in joint negotiations as the the Armed Forces and the following (vi) Sales Commission, Fee, etc., Paid, program proceeds through the Defense Agencies: Defense Advance Offered, or Agreed to be Paid: None. development, production, and Research Projects Agency, Defense (vii) Sensitivity of Technology equipment installation phases. Contract Management Agency, Defense Contained in the Defense Article or There will be no adverse impact on Commissary Agency, Defense Security Defense Services Proposed to be Sold: U.S. defense readiness as a result of this Cooperation Agency, Defense Legal See Attached Annex. proposed sale. Services Agency, Defense Logistics (viii) Date Report Delivered to Agency, Defense Threat Reduction Congress: 21 Sep 2011. Transmittal No. 11–17 Agency, Missile Defense Agency, and Policy Justification Notice of Proposed Issuance of Letter of Pentagon Force Protection Agency. The Offer Pursuant to Section 36(b)(1) of the publication of PRB membership is United Arab Emirates—MIDS/LVT LINK Arms Export Control Act required by 5 U.S.C. 4314(c)(4). 16 Terminals Annex The PRB shall provide fair and The Government of the United Arab impartial review of Senior Executive Emirates (UAE) has requested a possible Item No. vii Service and Senior Professional sale of 107 Link 16 Multifunctional (vii) Sensitivity of Technology: performance appraisals and make Information Distribution System/Low 1. The Multifunctional Information recommendations regarding Volume Terminals (MIDS/LVT) to be Distribution System/Low Volume performance ratings and performance installed on the United Arab Emirates Terminals (MIDS–LVT) Communication awards to the Deputy Secretary of F–16 aircraft and ground command and Security (COMSEC) device provides Defense. improved situational awareness and control sites, engineering/integration DATES: Effective Date: September 16, services, aircraft modification and sensor cueing in support of air 2011. installation, testing, spare and repair superiority and interdiction missions. parts, support equipment, repair and The Link 16 tactical data link provides FOR FURTHER INFORMATION CONTACT: return support, personnel training, networking with other Link 16-capable Michael L. Watson, Assistant Director contractor engineering and technical aircraft, command, and control systems. for Executive and Political Personnel, support, interface with ground The MIDS/LVT and MIDS On Ship Washington Headquarters Services, command and control centers and Terminal hardware, publications, Office of the Secretary of Defense, (703) ground repeater sites, and other related performance specifications, operational 693–8373. elements of program support. The capability, parameters, vulnerabilities to SUPPLEMENTARY INFORMATION: In estimated cost is $401 million. countermeasures, and software accordance with 5 U.S.C. 4314(c)(4), the This proposed sale will contribute to documentation are classified following executives are appointed to the foreign policy and national security Confidential. The classified information the Office of the Secretary of Defense

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PRB with specific PRB panel Average Burden Per Response: 4 DEPARTMENT OF DEFENSE assignments being made from this hours. Defense Acquisition Regulations group. Executives listed will serve a Annual Burden Hours: 300 hours. one-year renewable term, effective System September 16, 2011. Needs and Uses: DoD uses this information to determine if DoD Commercial Item Handbook Office of the Secretary of Defense contractors in the United Kingdom have AGENCY: Defense Acquisition Chairperson attempted to obtain relief from customs Regulations System, Department of duty on vehicle fuels in accordance Christine Condon Defense (DoD). with contract requirements. ACTION: Request for public input. PRB PANEL MEMBERS Affected Public: Business or other for- profit; not-for-profit institutions. SUMMARY: DoD has updated its Commercial Item Handbook. The Ahmed, Sajeel ...... Liotta, Jay Frequency: On occasion. Anderson, Gretchen McFarland, purpose of the Handbook is to help Katharina Respondent’s Obligation: Required to acquisition personnel develop sound Bexfield, James ...... McGrath, Elizabeth obtain or retain benefits. business strategies for procuring Bradley, Leigh ...... Middleton, Allen OMB Desk Officer: Ms. Jasmeet commercial items. DoD is seeking Bunn, Brad ...... Milks, Thomas Seehra. industry input on the contents before Cabrera, Louis ...... Morgan, Timothy finalizing the Handbook. Cofer, Jonathan ...... Pennett, John Written comments and DATES: Comments should be submitted Conklin, Pamela ...... Peters, Paul recommendations on the proposed in writing to the address shown below Durand, Shari ...... Pontius, Ronald information collection should be sent to Ewell, Webster ...... Rogers, Angela on or before November 30, 2011, to be France, Joyce ...... Russell, James Ms. Seehra at the Office of Management considered in the formation of the final Frothingham, Ed- Shaffer, Alan and Budget, Desk Officer for DoD, Room Handbook. ward. 10236, New Executive Office Building, ADDRESSES: You may submit comments Hinkle-Bowles, Snavely-Dixon, Mary Washington, DC 20503. to the Office of the Director, Defense Stephanie. You may also submit comments, Procurement and Acquisition Policy, Hollis, Caryn ...... Stein, Joseph Attention OUSD(AT&L)DPAP/CPIC, Hopkins, Arthur ...... Wennergren, David identified by docket number and title, James, John Jr...... Wright, Garland by the following method: 3060 Defense Pentagon, Washington, DC 20301–3060. Comments also may be Koffsky, Paul ...... Wright, Jessica • Federal eRulemaking Portal: http:// submitted by e-mail to Kozemchak, Paul ...... Yarwood, Susan www.regulations.gov. Follow the [email protected]. Dated: September 26, 2011. instructions for submitting comments. FOR FURTHER INFORMATION CONTACT: Ms. Instructions: All submissions received Aaron Siegel, Cassandra R. Freeman, 703–693–7062, Alternate OSD Federal Register Liaison must include the agency name, docket or by e-mail at Officer, Department of Defense. number, and title for this Federal [email protected]. [FR Doc. 2011–25043 Filed 9–28–11; 8:45 am] Register document. The general policy SUPPLEMENTARY INFORMATION: On July 1, BILLING CODE 5001–06–P for comments and other submissions from members of the public is to make 2009, DoD published a request for these submissions available for public public input on the draft Commercial DEPARTMENT OF DEFENSE viewing on the Internet at http:// Item Handbook issued by the Office of the Secretary of Defense (Acquisition, www.regulations.gov as they are Technology, and Logistics) in November Defense Acquisition Regulations received without change, including any 2001. Comments were received and System personal identifiers or contact incorporated. A draft of the updated [Docket No. DARS–2011–0050–0002] information provided. To confirm Commercial Item Handbook can be receipt of your comment(s), please found at http://www.acq.osd.mil/dpap/ Submission for OMB Review; check http://www.regulations.gov Comment Request cpic/draftcihandbook08012011.docx. approximately two to three days after DoD is seeking industry input on the submission to verify posting (except ACTION: Notice. contents before finalizing the Handbook. allow 30 days for posting of comments The Defense Acquisition Regulations submitted by mail). Ynette R. Shelkin, System has submitted to OMB for Editor, Defense Acquisition Regulations DoD Clearance Officer: Ms. Patricia System. clearance, the following proposal for Toppings. collection of information under the [FR Doc. 2011–25048 Filed 9–28–11; 8:45 am] provisions of the Paperwork Reduction Written requests for copies of the BILLING CODE P Act (44 U.S.C. chapter 35). information collection proposal should be sent to Ms. Toppings at WHS/ESD/ DATES: Consideration will be given to all DEPARTMENT OF DEFENSE comments received by October 31, 2011. Information Management Division, 4800 Title, Associated Forms and OMB Mark Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA Department of the Army; Corps of Number: Defense Federal Acquisition Engineers Regulation Supplement (DFARS) Part 22350–3100. 229, Taxes, and related clause at DFARS Dated: September 23, 2011. Intent To Prepare a Draft 252.229–7010; OMB Control Number Ynette R. Shelkin, Environmental Impact Statement 0704–0390. Editor, Defense Acquisition Regulations (DEIS) for the Haile Gold Mine in Type of Request: Extension. Lancaster County, SC Number of Respondents: 75. System. Responses Per Respondent: 1. [FR Doc. 2011–25047 Filed 9–28–11; 8:45 am] AGENCY: Department of the Army, U.S. Annual Responses: 75. BILLING CODE 5001–06–P Army Corps of Engineers.

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ACTION: Notice of Intent. applicant are included in the original conducted following the release of the joint public notice of January 28, 2011, DEIS. SUMMARY: The U.S. Army Corps of and are available on Charleston Engineers, Charleston District intends to District’s public Web site at http:// Edward P. Chamberlayne, prepare a Draft Environmental Impact www.sac.usace.army.mil/ Commander, U.S. Army Corps of Engineers, Statement (DEIS) to assess the potential ?action=publicnotices.pn2011. Charleston District. social, economic and environmental 2. Alternatives. A range of alternatives [FR Doc. 2011–25140 Filed 9–28–11; 8:45 am] effects of the proposed construction and to the proposed action will be BILLING CODE 3720–58–P operation of a gold mine in order to identified, and those found to be extract and process gold from the Haile reasonable alternatives will be fully ore body in wetlands and streams evaluated in the DEIS, including: The DEPARTMENT OF ENERGY associated with Haile Gold Mine Creek, no-action alternative, the applicant’s by Haile Gold Mine, Inc. (Haile) in the proposed alternative, alternative mine Issuance of a Loan Guarantee to vicinity of Kershaw, in Lancaster locations and mine plans, alternative Tonopah Solar Energy, LLC, for the County, South Carolina. The DEIS will mining methods and processes, Crescent Dunes Solar Energy Project assess potential effects of a range of alternatives that may result in avoidance AGENCY: U.S. Department of Energy. alternatives. and minimization of impacts, and ACTION: Record of decision. DATES: General Public Scoping Meeting: mitigation measures not in the proposed One Public Scoping meeting is planned action. However, this list is not SUMMARY: The U.S. Department of for Thursday October 27, 2011 exclusive and additional alternatives Energy (DOE) announces its decision to beginning at 5 p.m. EDT at the Andrew may be considered for inclusion. issue a Federal loan guarantee under Jackson Recreation Center, 6354 N 3. Scoping and Public Involvement Title XVII of the Energy Policy Act of Matson St, Kershaw, SC 29067. Process. A scoping meeting will be 2005 (EPAct 05), as amended by Section conducted to gather information on the FOR FURTHER INFORMATION CONTACT: For 406 of the American Recovery and scope of the project and alternatives to further information and/or questions Reinvestment Act of 2009 (Recovery be addressed in the DEIS. Additional Act), to Tonopah Solar Energy, LLC about the proposed project and DEIS, public and agency involvement will be please contact Dr. Richard L. Darden, (TSE), for construction and start-up of sought through the implementation of a the Crescent Dunes Solar Energy Project Project Manager, by telephone: 843– public involvement plan and through an (the Project). The Project is a proposed 329–8043 or toll free 1–866–329–8187, agency coordination team. 110-megawatt solar power generating or by mail: 4. Significant Issues. Issues associated CESAC–RE–P, 69–A Hagood Avenue, with the proposed project to be given facility based on concentrating solar Charleston, SC 29403. For inquiries detailed analysis in the DEIS are likely power technology, using mirrors and a from the media, please contact the to include, but are not necessarily central receiver, on approximately 2,250 Corps, Charleston District Corporate limited to, the potential impacts of the acres of U.S. Bureau of Land Communications Officer (CCO), Ms. proposed Haile Gold Mine on surface Management (BLM)-administered lands Glenn Jeffries by telephone: (843) 329– and groundwater quality, aquatic habitat in Nye County, Nevada. The 8123. and biota, wetlands and stream habitats, environmental impacts of construction SUPPLEMENTARY INFORMATION: An federal and state listed species of and start-up of the Project were application for a Department of the concern, indirect and cumulative analyzed in the Final Environmental Army permit was submitted by Haile impacts, drinking water supplies, Impact Statement for the Tonopah Solar pursuant to Section 404 of the Clean mitigation, emergency response and Energy, LLC, Crescent Dunes Solar Water Act (33 U.S.C. 1344) on January contingency plans, mine closure and Energy Project, Nye County, Nevada (75 12, 2011 and was advertized in a Joint rehabilitation, conservation, economics, FR 70917, November 19, 2010) (FEIS), Public Notice, P/N # SAC 1992–24211– aesthetics, general environmental prepared by BLM with DOE as a 4_Lancaster_County on January 28, concerns, historic properties, fish and cooperating agency. BLM consulted 2011. The public notice is available on wildlife values, flood hazards, land use, DOE during the preparation of this EIS, Charleston District’s public Web site at: recreation, water supply and DOE provided comments, and BLM http://www.sac.usace.army.mil/ conservation, water quality, energy addressed those comments in the FEIS. ?action=publicnotices.pn2011. needs, safety, and the needs and welfare DOE subsequently determined that the 1. Description of Proposed Project. of the people. Project analyzed in the FEIS was The project proposed by Haile is to 5. Additional Review and substantially the same as the Project that reactivate the existing Haile Gold Mine Consultation. Additional review and would be covered by the DOE loan near Kershaw, SC for the development consultation which will be incorporated guarantee, and DOE adopted the FEIS of gold resources, to expand the area for into the preparation of this DEIS will (76 FR 7844; February 11, 2011). open pit mining, and to construct include, but will not necessarily be ADDRESSES: Copies of this Record of associated facilities. The Haile Gold limited to, Section 401 of Clean Water Decision (ROD) and the FEIS may be Mine Site encompasses approximately Act; Essential Fish Habitat (EFH) obtained by contacting Angela 4,231 acres. Mining will occur in phases consultation requirements of the Colamaria, DOE National Environmental involving eight open mining pits over a Magnuson-Stevens Fishery Policy Act (NEPA) Document Manager, twelve-year period, with pit depths Conservation and Management Act; the Environmental Compliance Division, ranging from 110 to 840 feet deep. The National Environmental Policy Act; the Loan Programs Office (LP–10), U.S. proposed work includes the mechanized Endangered Species Act; and the Department of Energy, 1000 land clearing, grubbing, temporary National Historic Preservation Act. Independence Avenue, SW., stockpiling, filling, and excavation that 6. Availability of the Draft Washington, DC 20585; telephone (202) will impact 161.81 acres of Environmental Impact Statement. The 287–5387; or e-mail at jurisdictional, freshwater wetlands and Draft Environmental Impact Statement [email protected], or by 38,775 linear feet of streams. (DEIS) is anticipated to be available late accessing these documents on the DOE Construction drawings provided by the in 2012. A Public Hearing will be NEPA Web site at http://

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nepa.energy.gov and at the Loan superheated steam that will be used to further public involvement: One in Las Programs Office Web site at http:// power a conventional Rankine cycle Vegas, Nevada, on September 22, 2010, www.lgprogram.energy.gov/ steam turbine/generator. Energy and the other in Tonopah, Nevada, on NEPA_EIS.html. produced from the facility will connect September 23, 2010. During the FOR FURTHER INFORMATION CONTACT: to the electrical grid through a new 6.9- comment period for the DEIS, BLM Angela Colamaria, as indicated in the mile 230 kilovolt (kV) transmission line received 23 comment letters. Comments ADDRESSES section above. For general that will follow a path west to an received on the DEIS were addressed in information on the DOE NEPA process, existing transmission alignment. A 40- the FEIS, and resulted in the addition of contact Carol Borgstrom, Director, Office acre borrow pit will be needed to extract clarifying text. of NEPA Policy and Compliance (GC– aggregate for construction of the access BLM completed the Project FEIS in 54), U.S. Department of Energy, 1000 road and the base of the proposed cooperation with the United States Air Independence Avenue, SW., facility. A paved, two-lane access road Force, DOE, the Nevada Department of Washington, DC 20585; telephone (202) will extend approximately 1,500 feet Wildlife, Nye County, Esmeralda 586–4600; leave a message at (800) 472– from Pole Line Road to the proposed County, and the Town of Tonopah; EPA 2756; or e-mail [email protected]. facility. published a Notice of Availability for DOE’s offer of a loan guarantee for the Information about DOE NEPA activities the FEIS in the Federal Register on Project is authorized under Title XVII of and access to DOE NEPA documents are November 19, 2010 (75 FR 70917). The the Energy Policy Act of 2005, as available on the DOE NEPA Web site at FEIS analyzed the environmental amended by Section 406 of the Recovery http://nepa.energy.gov. impacts that would be associated with Act. Title XVII as amended authorizes a SUPPLEMENTARY INFORMATION: construction and operation of the program for rapid deployment of Project, and addressed public Project Background renewable energy and electric power comments. transmission projects (the Section 1705 The Project is a proposed 110- On December 20, 2010, BLM decided Program). to allow a solar energy ROW lease/grant megawatt solar power generating facility Before applying for a loan guarantee, to TSE for the Project to be constructed based on concentrating solar power TSE filed an application with BLM for technology. This technology uses a land use right-of-way pursuant to Title on BLM-managed land in Nye County, heliostats (reflecting mirrors) to redirect V of the Federal Land Policy and Nevada. BLM identified its Selected sunlight onto a receiver erected in the Management Act (43 U.S.C. 1761), Alternative and the Secretary of the center of a solar field (called the central which authorizes BLM to issue right-of- Interior issued Secretarial Approval of receiver). The proposed solar power way (ROW) lease/grants for renewable this decision. The environmental facility is to be located on energy projects on BLM land. The mitigation measures for the Project were approximately 2,250 acres of BLM- issuance of this ROW lease/grant was specified in BLM’s ROD (75 FR 81307; managed lands in south-central Nevada, considered a major Federal action as December 27, 2010). Links to these roughly 13.5 miles northwest of defined by NEPA, and preparation of an documents can be found at the BLM Tonopah, in Nye County, and located EIS was initiated by BLM. Web site: http://www.blm.gov/nv/st/en/ within the southern portion of the Big fo/battle_mountain_field/blm_ Smoky Valley, north of US Highway 95/ NEPA Review information/national_environmental/ 6 along Pole Line Road (State Highway BLM was the lead Federal agency in crescent_dunes_solar.html. 89). The proposed facility will consist of the preparation of the EIS, and DOE was After independently reviewing the up to approximately 17,500 heliostats/ a cooperating agency pursuant to a BLM FEIS, DOE determined that the reflecting mirrors occupying about 1,600 Memorandum of Understanding issues raised by commenters have been acres of the total project area. Each between BLM and DOE signed in adequately addressed in the FEIS. On heliostat will be approximately 670 February 2009. DOE reviewed the January 31, 2011, DOE adopted the FEIS square feet, together yielding a total content of the EIS, and provided (DOE/EIS–0454) to meet its NEPA reflecting surface of about 12,000,000 comments to BLM to ensure that obligations related to its proposal to square feet (275.48 acres). The information required by DOE NEPA provide up to $737 million in a loan arrangement of the heliostats within the regulations (10 CFR Part 1021) was guarantee to support the financing of the array will be optimized to maximize the included, and that the analyzed Project. The Notice of Adoption was amount of solar energy that could be alternatives encompassed DOE’s published by EPA in the Federal collected by the field. The solar proposed loan guarantee for Register on February 11, 2011 (76 FR collecting tower/central receiver system construction and start-up of the Project. 7844). will generate electric power from On November 24, 2009, BLM Alternatives Considered sunlight by focusing concentrated solar published the ‘‘Notice of Intent to radiation onto a tower-mounted Prepare an Environmental Impact BLM considered three site locations receiver. The solar collecting tower will Statement for the Proposed Tonopah that would occupy nearly equal acreage be a total of 653 feet high, including a Solar Energy, LLC, Crescent Dunes Solar on lands administered by BLM and 100-foot tall cylindrical receiver Energy Project, Nye County, Nevada’’ in would use the same concentrating solar mounted on the top of the tower. The the Federal Register (74 FR 225). Both power technology. BLM’s Proposed central receiver system will consist of a the Environmental Protection Agency Action would eliminate 1,374 acres of series of tubes through which a liquid (EPA) and BLM published Notices of Nevada oryctes (a state protected plant) salt passes and is heated by the Availability of the Draft Environmental habitat and 1,466 acres of pale kangaroo concentrated solar energy. The heated Impact Statement (DEIS) in the Federal mouse (a state protected species) salt will be routed to a large insulated Register on September 3, 2010 (75 FR habitat. The Proposed Action would be tank where it will be stored with 54145 and 75 FR 54177, respectively). located to the south of the Crescent minimal energy loss. To generate The DEIS was available for a 45-day Dunes Special Recreation Management electricity, the heated salt will be public comment period, which closed Area (SRMA), but would not encroach circulated through a series of heat on October 18, 2010. Two open house on the SRMA. It would have potential exchangers to generate high-pressure, public meetings were held to provide conflicts with the Air Force radar testing

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mission at the nearby Nevada Test and species, stays within the existing need pursuant to Title XVII of EPAct 05, Training Range. transmission corridor and reduces the as amended by section 406 of the BLM’s Alternative 1 would encroach length of the transmission line needed. Recovery Act, which authorizes a new on 130 acres of a ROW avoidance area It does not encroach upon the Crescent program for rapid deployment of for the Crescent Dunes SRMA, thus Dunes SRMA. renewable energy projects. The primary creating the need for an amendment to DOE has decided that its alternative to purposes of the Recovery Act are job the Tonopah Resource Management issue a loan guarantee for construction preservation and creation, infrastructure Plan. This alternative would eliminate and start-up of the Project, as selected investment, energy efficiency and 803 acres of Nevada oryctes habitat, in the BLM ROD, is environmentally science, assistance to the unemployed, 1,191 acres of pale kangaroo mouse preferable. DOE has determined that the and state and local fiscal stabilization. habitat, and 7 acres of habitat for several Project offers substantial environmental The Section 1705 Program is designed endemic species of scarab beetles (BLM benefits due to reductions in greenhouse to address the current economic sensitive species). Alternative 1 would gas emissions, as described in the FEIS. conditions of the Nation, in part, minimize potential conflicts with DOE has also determined that all through renewable energy, transmission, military operations for the Air Force practicable means to avoid or minimize and leading-edge biofuels projects. radar testing mission. environmental harm, as described in the Eligible projects must commence BLM’s Preferred Alternative, which it BLM ROD, have been adopted as construction no later than September selected in its ROD, is Alternative 2. mitigation measures by BLM. 30, 2011. Alternative 2 is situated on low or no- Consultation In reaching this decision, DOE relief public land. This alternative reviewed the Project NEPA encompasses 2,250.27 acres of public As the lead Federal agency for the documentation and considered the lands. However, the proposed project Crescent Dunes Solar Energy Project, potential impacts of the selected facility would only utilize BLM complied with section 106 of the alternative, including implementation of approximately 2,094.27 acres, of which National Historic Preservation Act, the stipulated mitigation measures. DOE 1,620 acres would be disturbed. section 7 of the Endangered Species Act, prepared this ROD in accordance with Alternative 2 is located to the west of and the Bald and Golden Eagle the Council on Environmental Quality the Crescent Dunes SRMA and Protection Act, and entered into regulations for implementing NEPA and eliminates or reduces environmental government-to-government DOE’s NEPA Implementing Procedures. impacts overall, such as visual impacts consultations with Native American to recreational users of the SRMA. The tribes. The mitigation measures Mitigation site would disturb 434 acres of habitat included in the BLM decision resulted The Project that will be supported by for the Nevada oryctes and the pale from these consultations and are issuance of the DOE loan guarantee kangaroo mouse, and there would be no addressed in the FEIS and BLM ROD. includes all mitigation conditions impacts to habitat for the endemic Specifically, the Nevada State Historic applied by BLM in its ROD. BLM is the species of scarab beetles. The site also Preservation Office (SHPO) reviewed Federal lead agency for the Project minimizes potential conflicts with this project under section 106 of the under NEPA, and is responsible for military operations for the Air Force National Historic Preservation Act, and ensuring compliance with all adopted radar testing mission. Finally, the site is concurred with BLM’s determinations of mitigation measures for the Project set located closer to an access road and an site eligibility to the National Register of out in its ROD. A description of the existing transmission line, and would Historic Places (NRHP) of nine eligible mitigation measures is provided in the therefore reduce the amount of properties that will be affected by this BLM ROD and in BLM’s ROW lease/ necessary surface disturbance. project. A Historic Properties Treatment grant (Appendix A to the BLM ROD). BLM also examined the impacts Plan describing mitigation measures BLM has incorporated these mitigation resulting from a No Action Alternative, that will be employed to resolve any measures into the ROW lease/grant as under which the Project would not be adverse effect to the nine NRHP eligible terms and conditions (Exhibit B to the constructed. All of these alternatives sites has been prepared. A ROW lease/grant). were described in detail and fully Memorandum of Agreement between The DOE loan guarantee agreement analyzed in the FEIS. the BLM and Nevada SHPO has been requires the applicant to comply with DOE’s decision is whether or not to implemented to ensure the Historic all applicable laws and the terms of the issue a loan guarantee to Tonopah Solar Properties Treatment Plan will mitigate ROW lease/grant, including its Energy, LLC, for $737 million to support any adverse effect to these NRHP- mitigation measures. An applicant’s construction and startup of the Project eligible sites. Furthermore, an failure to comply with applicable laws as selected in the BLM ROD. Endangered Species Act section 7 and the ROW lease/grant would Accordingly, the DOE alternatives are to consultation was completed by BLM constitute a default. Upon the issue the loan guarantee to TSE for during the NEPA process, and a Wildlife continuance of a default, DOE would construction and start-up of the Project Mitigation and Monitoring Plan was have the right under the loan guarantee under Alternative 2, which BLM included in the FEIS. Finally, BLM agreement between it and the applicant selected in its ROD, and the No Action conducted and completed Tribal to exercise usual and customary Alternative. Under the No Action consultation with Federally-Recognized remedies. To ensure that the applicant Alternative, DOE would not issue a loan Indian Tribes, and consulted with the so performs, the DOE Loan Programs guarantee for the Project and it is not Nevada SHPO. Office proactively monitors all operative likely that TSE would implement the loan guarantee transactions. Project as currently planned. Decision DOE has decided to issue a loan Issued in Washington, DC, on September Environmentally Preferred Alternative guarantee for construction and start-up 23, 2011. BLM identified Alterative 2 as the of the Crescent Dunes Solar Energy Jonathan M. Silver, Environmentally Preferred Alternative. Project, as selected in the BLM ROD. Executive Director, Loan Programs Office. This Alternative has the least impacts to Approval of the loan guarantee for the [FR Doc. 2011–25049 Filed 9–28–11; 8:45 am] special status plants and wildlife Project responds to DOE’s purpose and BILLING CODE 6450–10–P

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DEPARTMENT OF ENERGY whether you want to make an oral multiple products, the facility is statement, and what organization you referred to as a polygeneration (polygen) Hydrogen and Fuel Cell Technical represent (if appropriate). Members of plant. The plant will be built on a 600- Advisory Committee (HTAC) the public will be heard in the order in acre (243-hectare) oil field site in Ector which they sign up for the public County, Texas, north of the community AGENCY: Department of Energy, Office of comment period. Oral comments should of Penwell, and will continue in Energy Efficiency and Renewable be limited to two minutes in length. commercial operation for 30 to 50 years. Energy. Reasonable provision will be made to DOE’s proposed action, as described ACTION: Notice of open meeting. include the scheduled oral statements in the EIS, is to provide cost-shared financial assistance under DOE’s Clean SUMMARY: The Hydrogen and Fuel Cell on the agenda. The Chair of the committee will make every effort to hear Coal Power Initiative (CCPI) using a Technical Advisory Committee (HTAC) combination of American Recovery and was established under section 807 of the the views of all interested parties and to facilitate the orderly conduct of Reinvestment Act of 2009 (ARRA) (Pub. Energy Policy Act of 2005 (EPAct) (Pub. L. 111–5) funds and other CCPI program L. 109–58; 119 Stat. 849). The Federal business. If you would like to file a written statement with the committee, funds. After careful consideration of the Advisory Committee Act (Pub. L. 92– potential environmental impacts and 463, 86 Stat. 770) requires that publish you may do so either by submitting a hard copy at the meeting or by other factors such as program goals and notice of these meetings be announced objectives, DOE has decided to provide, in the Federal Register. submitting an electronic copy by e-mail to: [email protected]. through a cooperative agreement with DATES: Thursday, November 3, 2011; Minutes: The minutes of the meeting Summit, $450 million in cost-shared 9 a.m.–6:15 p.m. will be available for public review at the funding, which is approximately 26 Friday, November 4, 2011; 9 a.m.– following Web site: http:// percent of the project’s total capital cost 2:45 p.m. hydrogen.energy.gov. of $1.73 billion (2009 dollars). The ADDRESSES: L’Enfant Plaza Hotel DC, balance of project funding is expected to Issued at Washington, DC on September 480 L’Enfant Plaza, SW., Washington, 23, 2011. come from private sector investors and lenders. DC 20024. LaTanya R. Butler, ADDRESSES: The Final EIS is available FOR FURTHER INFORMATION CONTACT: Acting Deputy Committee Management Please send an e-mail to: Officer. on the National Energy Technology Laboratory’s Web site at: http:// [email protected] [FR Doc. 2011–25058 Filed 9–28–11; 8:45 am] www.netl.doe.gov/publications/others/ SUPPLEMENTARY INFORMATION: BILLING CODE 6450–01–P nepa/index.html and on the DOE NEPA Purpose of the Meeting: To provide Web site at: http://energy.gov/nepa. advice, information, and DEPARTMENT OF ENERGY Copies of the EIS may be obtained from recommendations to the Secretary on Mr. Mark L. McKoy, Environmental the program authorized by Title VIII of Record of Decision, Texas Clean Manager, U.S. Department of Energy, EPAct. National Energy Technology Laboratory, Tentative Agenda: (Subject to change; Energy Project P.O. Box 880, Morgantown, WV 26507– updates will be posted on the website AGENCY: Department of Energy. 0880; telephone: 304–285–4426; toll- at: http://hydrogen.energy.gov and ACTION: Record of decision. free number: 1–800–432–8330 (ext copies of the final agenda will available 4426); fax: 304–285–4403; or e-mail: the date of the meeting). SUMMARY: The U.S. Department of [email protected]. • Public Comment. Energy (DOE) announces its decision to • Coordination with Efficiency and continue to provide financial support to FOR FURTHER INFORMATION CONTACT: To Renewable Advisory Committee. the Texas Clean Energy Project (TCEP). obtain additional information about this • Impact of Natural Gas Supply on DOE prepared an Environmental Impact project, the EIS, or this Record of Fuel Cell and Hydrogen Market. Statement (EIS) (DOE/EIS–0444) to Decision (ROD), contact Mr. McKoy by • Industry Presentations. assess the environmental impacts the means specified above under • Status Cost and Performance of associated with the TCEP, a project that ADDRESSES. For general information on Battery Technology. Summit Texas Clean Energy, LLC the DOE NEPA process, contact Ms. • Vehicle Battery Charging Cost. (Summit) would design, construct, and Carol M. Borgstrom, Director, Office of • European Large-Scale Hydrogen operate. The project will demonstrate NEPA Policy and Compliance (GC–54), Storage of Renewable Electricity. advanced power systems using U.S. Department of Energy, 1000 • Financing Hydrogen and Fuel Cell integrated gasification combined-cycle Independence Avenue, SW., Technologies. (IGCC) technology to generate 400 Washington, DC 20585; telephone: 202– • State Initiatives. megawatts (gross) of electric power from 586–4600; fax: 202–586–7031; or leave a Public Participation: Members of the coal and will put 130 to 213 megawatts toll-free message at: 1–800–472–2756. public are welcome to observe the on the power grid while capturing SUPPLEMENTARY INFORMATION: DOE business of the meeting of HTAC and to approximately 90 percent of its carbon prepared this ROD pursuant to the make oral statements during the dioxide (CO2) emissions. The project National Environmental Policy Act specified period for public comment. will sequester approximately 2.5 to 3.0 (NEPA) of 1969 (42 U.S.C. 4321 et seq.), The public comment period will take million tons (2.3 to 2.7 million metric Council on Environmental Quality’s place between 9:15 a.m. and 9:30 a.m. tonnes) of CO2 per year. The CO2 will (CEQ’s) regulations for implementing on November 3, 2011. To attend the be delivered through a regional pipeline the procedural provisions of NEPA [40 meeting and/or to make oral statements network to existing oil fields in the Code of Federal Regulations (CFR) Parts regarding any of the items on the Permian Basin of West Texas for use in 1500–1508], DOE’s NEPA regulations agenda, please send an e-mail to: enhanced oil recovery (EOR) by third- (10 CFR Part 1021), and DOE’s [email protected] at least five business parties. The plant will also produce Compliance with Floodplain and days before the meeting. Please indicate urea, argon, and sulfuric acid for sale in Wetland Environmental Review if you will be attending the meeting, commercial markets. Because of its Requirements (10 CFR Part 1022). This

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ROD is based on DOE’s Final EIS for the section 402(a)). In February 2009, the supply of coal or the demand for the Texas Clean Energy Project (DOE/EIS– Congress appropriated $3.4 billion to electricity; 0444), comments submitted on the EIS DOE for fossil energy research and • The market for electricity and the and proposed project, other information, development, with $800 million economic viability of the project; and program considerations. allocated to the CCPI program. CCPI’s • DOE’s proposed funding of clean Round 3 seeks to address the challenge coal projects instead of projects using Background and Purpose and Need for of meeting the United States’ dynamic renewable resources; • Agency Action demand for electricity while decreasing The need for a comprehensive CO2 The TCEP involves the planning, emissions of CO2 from coal-based power emissions assessment that extends design, construction, and operation by generation. This is done through through the EOR process to the end uses Summit of a coal-fueled electric power financial assistance awards to industrial of produced petroleum products; and chemicals production plant participants for demonstrations, at • Increased railroad traffic and integrated with CO capture and commercial scale and in commercial associated coal dust; and 2 • geologic sequestration through EOR. settings, of low-CO2 emissions coal- The existence of additional Summit is owned jointly by the Summit based technologies that have foreseeable projects that should be Power Group, Inc., and CW NextGen, opportunities for timely deployment in included in the cumulative effects Inc., a Clayton Williams company. The the power industry. section of the EIS. project team includes Summit; Summit DOE’s purpose is to provide financial In the Final EIS, DOE considered and, Power Group, Inc.; Siemens Energy, assistance to projects that have the best as appropriate, responded to comments Inc.; Linde, AG; Fluor Corporation; Blue chance of achieving the CCPI program’s on the Draft EIS. The EPA published a Source, LLC; and others. objectives as established by the Notice of Availability for the EIS in the DOE selected this project for an award Congress. Specifically, DOE’s purpose Federal Register on August 5, 2011 (76 of financial assistance through a and need for action is to demonstrate FR 47579). In addition to responding to competitive process under the CCPI the commercial-readiness of CO2 comments on the Draft EIS, the Final Round 3 program pursuant to the capture and geologic sequestration fully EIS included new information related process set out in Funding Opportunity integrated with a power plant. The to, among other things, treatment of Announcement (FOA) DE–FOA– technical, environmental, financial and process water and the disposal of waste 0000042. DOE’s financial assistance will performance data generated from the water by two additional options: occur through cost sharing as specified design, construction, and operation of evaporation ponds and deep well under the terms of a financial assistance the polygen plant will provide a injection. agreement between DOE and Summit. commercial reference plant for these Decision This project includes a demonstration technologies. period (including plant reliability and DOE has decided to proceed with operations testing) following the EIS Process $450 million in financial assistance (i.e., construction and commissioning of the DOE published a Notice of Intent in cost-shared funding) under the terms of plant and continuing until the end of the Federal Register on June 2, 2010 (75 the cooperative agreement with Summit the cooperative agreement’s period of FR 30800) announcing its plan to for the design, construction and performance (July 15, 2017). prepare an EIS and hold a public demonstration of the TCEP. As the nation’s most abundant fossil scoping meeting. DOE held the scoping Basis of Decision fuel, coal is expected to have an meeting in Odessa, Texas, on June 17, important role in the United States’ 2010. DOE considered all of the DOE’s decision was reached after energy future. However, fossil fuel comments it received on the scope of considering the potential environmental combustion is a major source of the EIS and addressed them in the Draft impacts presented in the EIS, the anthropogenic CO2 emissions. Electric EIS. On March 18, 2011, the U.S. practicable options for mitigation of the power generation contributes Environmental Protection Agency (EPA) impacts, the importance of achieving approximately 39 percent of all CO2 published a Notice of Availability of the the objectives of programmatic and emissions in the U.S. In 2009, 81 Draft EIS in the Federal Register (76 FR legislative mandates (CCPI, EPACT percent of all electricity production- 14969). On March 22, 2011, DOE 2005, and ARRA) and other information. related CO2 emissions resulted from the published in the Federal Register (76 Specifically, the project meets or burning of coal. FR 15968) a Notice of Availability and exceeds the three primary objectives of Public Law 107–63, enacted in announced a public hearing in Odessa CCPI Round 3 and satisfies the November 2001, established the CCPI on April 5, 2011. Comments were programmatic and legislative objective program, which is a cost-shared solicited at the public hearing and of demonstrating the technical collaboration between the Federal throughout the 45-day public comment practicality of producing electricity and government and industry to increase period, which ended May 2, 2011. other products from coal while investment in advanced, low-emissions Comments on the Draft EIS included: capturing and beneficially using most of coal technologies. Later, with Title IV of • Proposed options to use municipal the CO2 produced from coal gasification. the Energy Policy Act of 2005 (EPACT waste water and the proposed Fort Furthermore, the project will create 2005) (Pub. L. 109–58), the Congress Stockton Holdings water supply jobs and modernize the nation’s established additional criteria for pipeline; infrastructure, meeting the objectives of projects receiving financial assistance • Possible changes in discharges to the ARRA. During most of the under the CCPI program. Under these Monahans Draw and salt loading due to construction period, the gross domestic criteria, CCPI projects must help the discharge to the draw; product (GDP) in the region of influence nation successfully commercialize • The need to reduce the project’s (Ector, Midland, Crane and Ward advanced power systems that ‘‘advance demand for potable water in light of the Counties) is estimated to increase by efficiency, environmental performance, limited regional supply; more than 0.4 percent; during the final and cost competitiveness well beyond • The choice of West Texas as the site year of construction it will increase by the level of technologies that are in for a coal-fueled electricity generating an estimated 0.67 percent. During plant commercial service’’ (EPACT 2005, plant instead of a site near either the operations, regional GDP will increase

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by about 0.16 percent, representing a conditions for DOE’s financial shall prepare, jointly with DOE and long-term benefit. Property taxes paid assistance under the cooperative governmental agencies with regulatory by the project are expected to total $14.5 agreement. jurisdiction, a plan for bird deterrence, million annually during the operations Mitigations identified in this ROD monitoring and reporting; and this plan phase, after deducting anticipated shall be made a term and condition for shall be implemented during the design, abatements and tax reliefs. Income and future ownership or management of the construction and operation of the solar sales taxes related to the project will TCEP by any other parties during the evaporation ponds. further benefit local governments. period of performance under the (7) If Summit chooses to dispose of Summit estimates that an average of cooperative agreement. desalination reject water by deep well 650 construction workers will be After carefully reviewing the EIS, the injection, in addition to complying with needed to build the plant with a peak comments received on the EIS and the terms and conditions of a permit at perhaps 1,500 workers. TCEP’s proposed project, and the current events under Texas’s Underground Injection operational work force is expected to be in the region, DOE requires the Control Program, Summit shall install a approximately 150 workers. Accounting following mitigation measures as a well near the bottom of the zone of for indirect and induced jobs, the total condition of its decision: potentially potable ground water (i.e., number of jobs resulting from the (1) Summit shall design and construct ground water with a total dissolved project will average about 1,000 during the TCEP to capture at least 90 percent solids concentration of less than 10,000 construction and 300 during operations. of the carbon in the fossil fuels when milligrams per liter) and monitor this This decision incorporates all operating under normal conditions, and water for increases in total dissolved practicable means to avoid or minimize Summit shall use best efforts to achieve solids and hydrocarbons as indicators of environmental, social, or economic at least a 90 percent capture rate during possible leakage of more deeply injected harm. DOE plans to verify the the demonstration period. brine reject water or displaced native implementation of appropriate (2) Summit shall develop jointly with fluids. It may be feasible to use the same avoidance and mitigation measures. the Texas Bureau of Economic Geology well for both monitoring and for and DOE a plan for monitoring, Mitigation supplying potable water to the polygen verification and accounting (MVA) of plant. Before completing final design on As a condition of its decision to CO2 sequestered through EOR. The a system for deep well injection of brine provide funding for the design, MVA will be implemented by third- reject water, Summit shall prepare, construction and operation of the party buyers of the CO2. Contracts jointly with DOE and government project, DOE is imposing requirements established between Summit and these agencies with regulatory jurisdiction, a that will avoid or minimize the buyers (or the field operators who plan for monitoring well design, environmental impacts of the project. ultimately use the CO2) shall make the construction, monitoring and reporting; These conditions are described below. implementation of the MVA plan a term and this plan shall be implemented Under the terms of the cooperative and condition of the contract and shall, during the design, construction and agreement, DOE requires Summit to as appropriate, involve the Texas operations of the system for deep well comply with applicable Federal, state Bureau of Economic Geology and the injection. and local government laws, regulations, Texas Railroad Commission in the (8) Before land disturbance at the permit conditions, and orders. certification of the sequestration of CO2 plant site and along the utility corridors, Mitigation measures beyond those via EOR. MVA reports submitted to the Summit shall survey areas to be specified in permit conditions State of Texas shall also be submitted to disturbed and undertake measures to enforceable by other Federal, state and Summit and to DOE (via Summit). protect wetlands, waterways (including local agencies are addressed in this ROD (3) Summit shall not use the proposed non-jurisdictional waters), playa lakes, and, as appropriate, will be set forth in Fort Stockton Holdings waterline as a rare species (e.g., the sand dune lizard, a Mitigation Action Plan (MAP) as primary water supply for the TCEP. If Sceloporus arenicolus, Federal required by 10 CFR 1021.331. The MAP constructed, this waterline may be used candidate for listing) and critical will further detail the mitigation as a backup supply to temporarily habitats (e.g., the Shinnery Oak Sand measures, explaining how they will be provide water to the TCEP when the Dune habitat), and state-listed rare planned, implemented, monitored and primary water supply is not in service. species (particularly the Texas horned reported. These mitigation requirements (4) Summit shall not enter into lizard), as specified in the MAP. As are a condition for continued DOE contracts whereby waste water appropriate, Summit shall consult with funding. discharge into Monahans Draw would the U.S. Fish and Wildlife Service and DOE will ensure that commitments in increase by more than 0.75 million the Texas Parks and Wildlife this ROD (as further detailed in the gallons per day, as an annual average, Department regarding special natural MAP) are met through management of and 6 million gallons per day as a daily communities and features, as well as the cooperative agreement, which makes maximum, as a result of the TCEP. rare species and their habitats. the conditions in the ROD contractually (5) The TCEP’s power island shall be (9) To reduce impacts to species enforceable. DOE will make the MAP designed, constructed and operated protected under the Migratory Bird available for public inspection via with dry cooling towers. If this is found Treaty Act, ground disturbing activities postings on the DOE and NETL Web to be technically infeasible, then a in areas of potential breeding habitat sites. hybrid cooling system (or a wet cooling shall be avoided during the breeding During project planning, Summit assist) may be used. A wet cooling and nesting season (March 1 through incorporated various mitigation system is acceptable for the chemical July 31). If this seasonal avoidance is measures and anticipated permit plant component of the TCEP. not practicable, a qualified biologist requirements. The analyses in the EIS (6) If the TCEP uses solar evaporation shall survey the potentially affected area assumed that these measures would be ponds, Summit shall plan, design, and prior to any ground disturbing activities in effect. These measures are identified construct any high salinity ponds to be to determine if nesting is underway; and in Tables S2–7 and 2–8 of the EIS as ready for installation of bird deterrent buffer areas shall be established as commitments made by Summit and are netting. Before completing final design needed to protect eggs and young birds incorporated into this ROD as on solar evaporation ponds, Summit until they fledge. Owls and hawks may

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nest in this area at other times of year. (13) Summit shall prepare annual The project’s linear facilities include Surveys shall be conducted for owl and reports during the term of the one or two electric transmission lines to hawk nests, and buffer areas shall be cooperative agreement that document connect the plant with one or both of established around active nests. If a the operations and corresponding air the nearby power grids; process water power transmission line route crosses or emissions from the TCEP. Annual supply pipelines; a natural gas pipeline; is located near a water body or playa reports shall include summary a pipeline for captured and compressed lake bed, the adjacent section of the line information on the TCEP’s emissions of CO2; one or two access roads; and a rail shall have line markers to reduce the criteria pollutants, mercury and other spur. potential for bird collisions. To prevent toxic pollutants of concern, and CO2. The TCEP will employ integrated electrocution of perching raptors and to These reports shall indicate the gasification combined-cycle (IGCC) reduce power outages and maintenance, performance and emissions of the TCEP technology. Gasification is the process Summit shall consider the use of during normal operations. If air of converting coal into a fuel called various protection measures such as emissions data are collected during synthesis gas (syngas). A combined- adequate line spacing, perch guards, periods of operation outside normal cycle electric power plant is one that and insulated jumper wires. steady-state conditions, this information uses both a gas turbine-generator (10) For linear facility routes chosen also shall be summarized in the report. (similar to a jet aircraft engine) and a by Summit, phase I cultural resource (14) To reduce visual impacts steam turbine-generator (which uses surveys (including archaeological and associated with polygen plant structures steam produced by exhaust heat from paleontological surveys), along with and facilities, including exposed the gas turbine-generator) to produce consultations with the Texas State portions of linear facilities, DOE more electricity than would be Historic Preservation Officer and DOE, recommends that Summit choose, produced by a boiler and conventional shall be completed for segments not where appropriate, finish coat colors for steam turbine-generator alone. previously surveyed but for which exterior surfaces that reduce the form, Combining (integrating) the gasification surveys are warranted. Further color and line contrasts between the process with a combined-cycle power consultation with the State Historic surrounding landscape and the exteriors plant is known as IGCC. This polygen plant will include CO Preservation Officer for any unforeseen of buildings and structures. Chosen 2 capture and compression with transport areas of construction or ground colors should be slightly darker than the of the CO off-site for geologic disturbance not included within the EIS surrounding landscape to achieve 2 sequestration through EOR. Specifically, shall be completed before construction optimal benefit. This choice of color starts to determine the need for further the plant will have an air separation would not apply where regulation, cultural resource investigations and any unit, a coal gasification system (with safety, service, material type, or other appropriate mitigation measures. two operating gasifiers), a syngas (11) For any pipeline crossings of reasons dictate the choice of other cleanup system, a mercury (Hg) removal Monahans Draw, Summit shall first colors or no paint. filter, an acid gas scrubber (for sulfur Summit will conduct further resource consider the practicability of pipeline species and CO2), a CO2 compressor assessments as the project planning and installation beneath the streambed by system, a sulfuric acid (H2SO4) directional drilling. If trenching is design continues. If there are substantial production plant, a gas turbine- chosen as the method of installation of changes in the TCEP proposal or generator, a heat recovery steam pipeline, Summit shall seek to use significant new information relevant to generator (HRSG), a steam turbine- crossing locations and construction environmental concerns, as described in generator, and a urea production plant. techniques whereby impacts to aquatic 40 CFR 1502.9(c)(1), DOE will prepare The linear facilities will convey the life, vegetation and land surface features a supplemental EIS. If it is unclear outputs and inputs of the polygen plant along the draw would be minimized; whether an EIS supplement is required, to and from existing infrastructure. and Summit shall use land surface DOE will prepare a Supplement Summit’s TCEP will generate up to reconstruction, erosion controls, and Analysis, in accordance with 10 CFR 400 megawatts (MW), of which 130 to revegetation (with native species) to 1021.314(c), to support the 213 MW (approximately 1.0 to 1.7 stabilize and restore the affected determination. DOE will make billion net kilowatt-hours of electricity floodplains, stream banks, stream beds, Supplement Analyses available to the per year) will be available to the and vegetation. public and to regulatory agencies with electricity grid. In addition, the plant (12) Where vegetative ground cover jurisdiction for 30 days of review and will be designed to capture, as CO2, 90 remains disturbed or soil remains comment prior to DOE determining percent or more of the total carbon in exposed after project-related whether a supplemental EIS is required. the fossil fuels used by the plant under construction activities, Summit shall Project Description and Location typical operating conditions. Summit strive to achieve beneficial results in will capture up to 3 million tons (2.7 terms of erosion control, land The project will be located million metric tonnes) of CO2 annually. stabilization, long-term vegetative cover approximately 15 miles (mi) (24 Approximately 2.5 to 3.0 million tons and habitat improvement through kilometers) southwest of the city of (2.3 to 2.7 million metric tonnes) of the revegetation, landscaping and other Odessa in Ector County, Texas. Summit captured CO2 will be sold under techniques as appropriate. Plantings of will build the polygen plant on a 600- commercial contracts and subsequently vegetation shall use species that are acre (243-hectare) site adjacent to the injected into partially depleted oil native, adaptable to the planting community of Penwell and north of reservoirs where it will be used to location, beneficial to wildlife, drought Interstate Highway 20 (I–20) along a extract more oil. In addition, the plant tolerant, and helpful with water Union Pacific Railroad line. Summit will produce urea for sale as fertilizer. conservation. Where practicable, grass chose this site primarily because of its Products from the gasification process re-seedings or plantings shall use only proximity to an existing CO2 market, a (argon, H2SO4, and inert slag) will also native species, usually in a mixture of connection point to a CO2 pipeline be sold on the commercial market. grasses and forbs appropriate to address network, and multiple oil fields Summit received a financial potential erosion problems and provide currently performing or suitable for CO2 assistance award in Round 3 of DOE’s long-term cover. floods. CCPI program and qualified for

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investment tax credits under Internal ARRA funding to the CCPI program. the usage of that alternative in the TCEP Revenue Code (IRC) section 48A, Private sector participants submitted 38 as a condition for DOE’s financial Qualifying Advanced Coal Project. proposals in response to the reopened assistance. Summit intends to seek tax credits solicitation. After an initial screening No-Action Alternative under IRC section 45Q, Credit for removed from further consideration Carbon Dioxide Sequestration. However, those proposals that failed to meet the Under the No-Action Alternative, most of TCEP’s funding will consist of eligibility requirements, the remaining DOE would not share in the cost for owner-invested equity and debt 25 responsive proposals were subjected detailed design, construction and a obtained in private capital markets. to environmental review and three-year demonstration phase of the consideration (during the selection TCEP. For purposes of analysis in the DOE’s Proposed Action process) in accordance with 10 CFR EIS, DOE considered the ‘‘no-action’’ DOE’s Proposed Action, as described 1021.216. From these 25 proposals DOE alternative to be the same as the ‘‘no- in the EIS, is to provide a total of selected three proposals representing build’’ alternative. approximately $450 million in financial diverse technologies and using a variety In the absence of financial assistance assistance for Summit’s TCEP through a of coals to further the goals of the CCPI from DOE, Summit might choose to cooperative agreement. The financial program. DOE selected the TCEP under construct and operate the TCEP if it assistance would be provided on a cost- the reopening of Round 3 because it could obtain sufficient private share basis for the planning, design, would demonstrate IGCC power financing. However, DOE believes this construction, and demonstration-phase generation integrated with chemical option is unlikely, because of the testing and operation of the project. production and CO2 capture financial risks and costs of deploying a Under the terms of the agreement, DOE technologies in a commercial project. new power plant, especially one with has already made available Summit chose the site for its TCEP IGCC technology integrated with CO2 approximately $48 million on a cost- based on a selection process that it had capture and sequestration. Without DOE share basis for the project’s definition completed prior to applying for DOE’s participation, it is likely that the phase, which includes completion of financial assistance. Because of its proposed project would not be built, the NEPA process. desire to integrate IGCC technology with environmental resources would remain in their current condition, and none of Alternatives CO2 capture, Summit focused its site selection efforts in Texas, which has the impacts associated with the project The Congress directed DOE to pursue both a regional market for CO2 for use would occur, whether adverse or the goals of the CCPI by providing in EOR and existing infrastructure for beneficial (i.e., no new construction, financial assistance to projects owned transporting CO2 to oil fields. Summit jobs, marketable products, resource use, by non-Federal sponsors and using coal considered several sites in Texas, land-use alterations, emissions, for at least 75 percent of the project’s including Corpus Christi, Oak Grove, discharges, or wastes). fuel requirement. This approach places Big Brown, and two sites—Jewett and If the project were canceled, the DOE in a much more limited role than Odessa—that had been considered for proposed technologies of the TCEP (e.g., if it were the owner and operator of the DOE’s FutureGen project. Summit commercial-scale IGCC integrated with project. Here, the purpose and need for ultimately selected the Odessa site CO2 capture and geologic storage of CO2 DOE action is defined by the CCPI primarily because of its proximity to an using EOR; the manufacture of urea program and the ARRA. Given that existing CO2 pipeline and multiple oil from gasified coal) may not be CCPI’s programmatic purposes and fields where EOR is or may be used. The implemented in the near term. needs are defined by legislation, the Odessa site also has close access to rail, Consequently, commercialization of reasonable alternatives available to natural gas, transmission lines, and these technologies may be delayed or DOE, prior to selection of this project, sources of water, which the other sites may not occur because utilities and were the other projects submitted for lacked in varying degrees. The Odessa industries tend to use known and DOE’s consideration in response to the site enjoys significant community demonstrated technologies rather than FOA and that were determined to be support for the TCEP. new technologies. The no action responsive to the FOA’s requirements. Under the proposed action alternative would not contribute to All projects that were deemed alternative, DOE assessed the potential CCPI’s goals of accelerating the responsive to the FOA were analyzed in environmental impacts associated with commercial readiness of advanced an environmental critique pursuant to alternative water supplies, alternative multi-pollutant emissions control; 10 CFR 1021.216, which establishes a routes for linear facilities, and options improving combustion, gasification, and specific NEPA process for competitive for certain plant sub-systems (e.g., efficiency technologies; and awards of financial assistance and evaporation ponds versus deep well demonstrating advanced coal-based contracts. A synopsis of the injection of reject water from the technologies that capture and sequester environmental critique is included in desalination of supply water) as CO2 emissions. Appendix B of the EIS. described in the EIS. In identifying After DOE selects a project, the alternative routes for linear facilities, Potential Environmental Impacts reasonable alternatives become: (1) The Summit considered selection factors In making its decision to provide project as proposed by the applicant, (2) such as using or paralleling existing continued financial assistance to the alternatives or options still under rights of ways and avoiding developed TCEP, DOE considered the consideration by the applicant or that areas and sensitive areas. In the EIS, environmental impacts of the proposed are within reasonable confines of the DOE reviewed the potential project and no-action alternative on project as proposed (e.g., the particular environmental impacts of these various affected resources. These include air location of the plant on the parcel of project alternatives still under quality and greenhouse gas emissions; land proposed for the project), and (3) consideration by Summit with the goal climate; soils, geology, and mineral the ‘‘no action’’ alternative. of deciding for each of Summit’s resources; ground water; surface water, DOE issued the FOA for CCPI Round alternatives whether any adverse floodplains and wetlands; biological 3 in August 2008, and reopened it in consequences might be sufficiently resources; aesthetics; cultural resources; June 2009 in response to the addition of objectionable that DOE would disallow land use; socioeconomics and

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community services; environmental operations will range up to 300,000 tons the long term, injected CO2 would be justice; utility services; transportation; per year, and these emissions will trapped in the reservoirs that had materials and waste management; contribute to global atmospheric previously trapped oil and natural gas human health, safety, and accidents; concentrations of CO2. Small amounts of through many millions of years. DOE and noise and vibration. The EIS also methane and other organic compounds requires as a condition of its decision examined potential incremental impacts (the TCEQ-issued air emissions permit that Summit monitor and verify the of the TCEP in combination with other limit equals 39.6 tons per year) will be sequestration of TCEP’s injected CO2 past, present, and reasonably emitted and will contribute to (see Mitigation). foreseeable actions (i.e., cumulative greenhouse gas effects. Ground Water impacts). The following sections The TCEP is designed to reduce its summarize the environmental impacts emissions of greenhouse gases (and Supplies of non-potable (brackish or and mitigation measures described and precursors) to levels that are much saline) ground water appear more than analyzed in the Final EIS. lower than conventional power plants of adequate in the region to meet TCEP’s equivalent gross generating capacity and consumption rates for process Air Quality lower than other advanced clean coal (industrial) water. Although no adverse The TCEP will be categorized as a power plants that have been constructed impacts are expected to occur if non- major source of air pollutants under and operated. DOE requires as a potable ground water is used, water Clean Air Act regulations because condition of its decisions that the TCEP conservation and use of a dry cooling emissions of some criteria pollutants be designed and constructed to capture system have been included as an (NO2, SO2, CO, PM10, and PM2.5) will at least 90 percent of the carbon in its integral part of the plant to minimize exceed 100 tons per year. Construction- fossil fuels (see Mitigation). the potential for water supply impacts related and operational emissions to the fullest extent practicable. would not cause air quality to exceed Soils, Geology and Mineral Resources Aside from meeting the TCEP’s needs either the Prevention of Significant Soils will be disturbed as areas are for process water, Summit is Deterioration (PSD) increments or the prepared for construction. Disturbed considering installation of an on-site National Ambient Air Quality Standards soils will be protected from erosion and well into the Dockum Aquifer to serve (NAAQS). However, ambient air will be re-planted where practicable. the plant’s potable water needs. concentrations of criteria pollutants Disturbance at the plant site will result Operational demand will be could increase between 9 percent and in permanent removal or displacement approximately 4,500 gal (17,034 L) per 200 percent at the point of maximum of soils on up to 600 acres. Soil day based on approximately 150 ground level impact under certain disturbance in utility corridors is workers on-site. In Ector County, the weather conditions during plant expected to be temporary and will vary quality of the Dockum Aquifer ranges operations. While the TCEP will capture greatly depending on the options and from fresh to brackish. Although for beneficial use at least 90 percent of routes selected, ranging from 132 to irrigation and public supply use is the carbon as CO2 in its fuels, annual 1,032 acres (53.4 and 417.7 hectares) limited in Ector County, at least one emissions of CO2 from the TCEP will (assuming that the permanent rights-of- resident in the adjacent community of reach 300,000 tons per year, and these ways but not the temporary rights-of- Penwell currently relies on water from emissions will contribute to global ways will be fully disturbed). New the same aquifer for residential and atmospheric concentrations of CO2. transportation corridors connecting to small-scale commercial use. Potential Plant-wide emissions of hazardous air the power plant site could require water quality effects on this adjacent pollutants will not exceed either the between 25.3 and 39.0 acres (10.2 and well user will be estimated through individual pollutant threshold (10 tons 15.8 hectares) of soil disturbance. testing of a newly drilled well on-site, per year) or the combined pollutant The CO2 from the TCEP will be sold if this option is further investigated for threshold (25 tons per year). Maximum to ongoing EOR operations in the its potential to supply potable water to predicted concentrations for all Permian Basin. This use of CO2 in the the TCEP. identified compounds that could have a basin is a well-established process that The TCEP could affect ground water negative impact to human health were will serve as final sequestration for the in several ways: (1) Project consumption found to be below their respective CO2 captured at the TCEP. Capture and from underground sources of drinking effects screening limits for general sale of CO2 from the polygen plant will water, (2) displacement of fluids into public exposure, except for short-term promote the recovery of oil and gas in underground sources of drinking water, exposures to coal dust on the plant site the Permian Basin, where average (3) contamination due to spills, leaks, (which will not exceed industrial additional oil production is releases or leaching during construction exposure criteria). approximately 1.86 barrels of oil per ton and operations, and (4) diminished Although air quality impacts will be of CO2 injected. As a tertiary method of recharge due to alterations of the ground small, the TCEP will reduce emissions EOR, CO2 floods help oil field operators surface. and impacts to the fullest extent recover another 8 to 16 percent of the The consumption of potable water practicable. As a condition of its original quantity of oil in the reservoir. from ground water aquifers would decision, DOE requires reports on air Because oil and gas are withdrawn constitute a significant impact if the emissions from the TCEP (see from oil reservoirs as CO2 is injected, TCEP were to use such sources for Mitigation). fluid pressures within the reservoir primary supply of process water. From would not be expected to build up to the beginning, project planners were Climate levels that would represent a substantial aware of the potential harms in using Construction and operation of the risk of seismic activity, displacement of potable water for the plant’s process TCEP will not cause measurable impacts native fluids into overlying strata, or water needs, so this type of water on local, regional or global climate and migration of injected CO2 into other supply was disfavored. meteorology. However, operations of the strata. Abandoned oil wells typically The Edwards-Trinity (Plateau) TCEP will contribute greenhouse gas present the most likely leakage routes in Aquifer was considered as one of the emissions to the atmosphere. Annual old oil fields, and these leaks can options for water supply, using an emissions of CO2 from the TCEP usually be identified and plugged. Over existing well field located near the town

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of Fort Stockton, Texas. This well field site, with disposal of a substantial and directional drilling. The choice of yields water of marginal quality for volume of desalination reject water installation technique would be made human consumption and the water (brine). by Summit on a case-by-case basis after would benefit from desalination to Summit also considered the Pecos more information is gathered at each improve its acceptance for drinking Alluvium Aquifer in response to a location. After construction is complete, water. Currently water from this field is suggestion submitted during the public pipelines will not further impact being used for agricultural irrigation. comment period on the Draft EIS. This floodplains. For transmission lines, The proposed Fort Stockton Holdings aquifer is of major regional importance structures could be sited to avoid waterline would divert water currently and has been widely used for irrigation. wetlands along these routes. used for irrigation to the cities of In central Ward County, it is also used Construction activities in corridors that Midland and Odessa where it could be for municipal and industrial purposes. have water bodies (WL1, WL3 and WL5) used for potable water supply. Production rates greatly exceed recharge are likely to result in short-term, If the Fort Stockton Holdings rates and aquifer drawdown has construction-related impacts such as waterline were built, the TCEP could approached 200 feet (61 meters) in some increased turbidity, sedimentation, use approximately 10 percent of its areas. The aquifer is also highly variable streambed disturbance, and stream-bank capacity. Because no additional ground in production quality and quantity. If vegetation removal. water would be withdrawn from the TCEP were to use this option, impacts Under one option for primary supply aquifer (beyond the current rate of to the aquifer’s water quality and of process water, municipal waste water pumping for agricultural irrigation) and quantity would likely be significant from Midland would be processed because very little of the water currently within the region of the drawdown. through primary and secondary used for irrigation recharges the If deep injection wells are used for the treatment by the Gulf Coast Authority’s Edwards-Trinity Aquifer, Fort Stockton disposal of waste water (whether brine (GCA’s) plant and then processed water or industrial waste water), its Holdings’ proposed waterline project, through micro-filtration or ultra- injection could displace native fluids and TCEP’s use of 10 percent of the filtration devices before being piped to upward into underground sources of waterline’s capacity, would have no the TCEP for use. If this option is drinking water. The area of risk would additional impact on the aquifer. The chosen by Summit, there would be an be around the injection wells where proposed Fort Stockton Holdings increase in effluent discharge to fluid pressures could increase waterline is highly controversial and Monahans Draw from the GCA outfall as significantly in response to the has been unable to obtain needed a result of accepting more waste water, permits and approvals. Therefore, it is injection. The extent of this area would on most days, than is required for the unlikely that this waterline would be be estimated after a test well is drilled TCEP and as a result of disposal of the built in time for the TCEP to use it as by Summit to gather hydrologic reject water. The draw would be dry a primary water supply. DOE requires as information on each of the likely most of the time if not for the discharges a condition of its decision that the Fort injection targets. If Summit chooses this of treated municipal and industrial Stockton Holdings water line not be option, DOE requires monitoring of waste water that maintain ponds and used as a primary source of water (see changes in water quality in the deepest wetlands on portions of the draw. The Mitigation). underground source of drinking water The Capitan Reef Complex Aquifer is above the injection site (see Mitigation). wetlands, although small, are among the a minor aquifer in West Texas that is If additional municipal waste water, largest and best in the area and are used approximately 25 miles to the west of after treatment, would be disposed of by a variety of birds and other wildlife. the plant site. Summit proposed this into Monahans Draw as a result of the The potential increase in GCA’s aquifer as an option for the process TCEP, there would be only a small risk discharge to Monahans Draw (1) would water source. The aquifer generally of increased contamination of ground not contribute significantly to flooding contains poor quality water. Most of the water beneath the draw. Permit limits events in downstream low-lying areas, ground water pumped from this aquifer on total dissolved solids (salinity) in (2) would make a small contribution to in Texas is used for secondary oil water discharged into the draw will not the existing salt loading in the draw, recovery. A small amount is used for be increased, but the volume of waste and (3) would further support and may irrigation of salt-tolerant crops. Over the water discharged and salt loading could slightly expand wetlands within the last 70 years, water levels in the aquifer increase. DOE requires a limit on TCEP- draw. have declined in some areas. The Oxy related waste water discharges and salt If Summit chooses the option to use Permian pipeline system distributes loading to Monahan’s Draw (see Midland’s municipal waste water, the brackish ground water from the Capitan Mitigation). forecasted average increase of 0.75- Reef formation to water flood projects in million gallons per day (2.8-million Surface Water, Floodplains and the Permian Basin. The closest source of Liters/day) in GCA’s discharge to Oxy Permian water to the polygen plant Wetlands Monahans Draw would represent a 27 site is a group of ground water wells At the TCEP site and along access percent increase over the current near the town of Kermit, Texas. roads, no surface water resources, average discharge from the GCA outfall The Oxy Permian system is not used floodplains, or wetlands are present and may cause a small increase in the at its full capacity, and demand for and, therefore, no direct impacts to downstream extent of stream flow along water for use in secondary oil recovery them are expected. Floodplains and the draw during dry periods and in the has been slowly declining. Because the wetland areas have been identified downstream extent of wetlands. Neither amount of water pumped for the Oxy within pipeline corridors, with the the average per day increase in GCA’s Permian pipeline has steadily following amounts of wetlands being effluent discharge, nor the infrequent decreased, the impacts of additional subject to disturbance: WL1, up to 2.53 full release of waste water received from pumping for use as TCEP process water acres (1.0 hectares); WL3, up to 0.86 Midland (6 million gallons per day) would be small. Usage of this water acres (0.35 hectares); and WL5, up to would represent a significant impact to supply option would require the 1.29 acres (0.52 hectares). The options flood flow volume, flood elevations, or installation and use of a substantial for installation of pipelines beneath flooding frequency in the downstream desalination system at the TCEP plant wetlands and water bodies are trenching areas along Monahans Draw.

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The increase in concentration of total adjacent to these. Bird and bat pipelines will be buried, long-term dissolved solids in GCA’s discharges mortalities due to collisions with impacts to aesthetics will occur because would be negligible (dissolved salts transmission lines will also occur. DOE rights-of-ways will be maintained clear would pass through the micro filtration requires, as a condition of its decision, of larger vegetation. or ultra filtration devices). However, if minimization of impacts to migratory Cultural Resources Summit chooses to use Midland’s birds (see Mitigation). municipal waste water, there would be If Summit chooses to use solar Construction and operation of the a small contribution to the existing salt evaporation ponds for the disposal of TCEP are not anticipated to impact loading in the draw because of the waste water, the ponds could attract significant cultural resources; however, increase in the quantity of effluent. waterfowl to them thereby exposing the utility corridors have not been birds to concentrated brine water, which thoroughly investigated and could have Biological Resources could cause salt toxicosis and salt resources that deserve protection. Near Land disturbance and usage at the encrustation of feathers leading to bird the plant site one historical complex or TCEP site will result in the permanent deaths. Covering ponds with netting set of buildings, the Rhodes Welding loss of up to 600 acres (243 hectares) of would be one option for deterring birds Complex, is considered eligible for the the mesquite shrub and grassland from contacting the brines. Others National Register of Historic Places vegetation community and associated options exist for deterring birds, and (NRHP). Changes to the setting will not habitat functions. Construction these would be considered when affect its NRHP eligibility. DOE requires, activities could result in the death of Summit prepares a bird deterrence plan as a condition of its decision, cultural slow-moving terrestrial species not able (see Mitigation). resource surveys to be completed for to escape the path of construction options and linear facility routes Aesthetics equipment. Noise associated with tentatively chosen by Summit (see construction could result in wildlife Visual impacts caused by the polygen Mitigation). displacement and behavioral changes plant were evaluated from a number of that could have minimal impacts on key observation points in the area. The Land Use reproductive success. Noise associated plant, as viewed from most locations The plant site is currently used for with plant operations will have (including the Monahans Sandhills ranching and oil and gas production, negligible long-term effects on wildlife, State Park) will have only minor and these will be displaced on the 600- because the wildlife will become impacts on the view shed. The view of acre plant site by the TCEP. Existing accustomed to it. Land at the plant site the plant will be more dramatic from the subsurface rights will continue to be is suitable for the Texas horned lizard crest of the escarpment to the east, available for exploration and production (Phrynosoma cornutum) (state listed, especially as seen by motorists traveling of oil and gas. Operation of the polygen threatened) as well as 11 other state- west from Odessa on I–20. plant will not be incompatible with listed rare species. DOE requires, as a During operations, the height and size most of the surrounding land uses. condition of its decision, measures to of the plant structures and coal storage However, the project will directly affect protect listed species (see Mitigation). pile will create moderate, adverse, at least one and perhaps other nearby Construction of the linear facilities direct impacts as viewed from the crest residential units in the mostly will result in the permanent removal of of the escarpment to the east because of abandoned community of Penwell. 132 to 1,032 acres (53 to 418 hectares) the strong form, color, and line contrasts For the linear facilities, existing land of mesquite shrub and grassland with the surrounding landscape. Water uses will be briefly and temporarily community and associated habitat vapor emitted from the cooling tower affected by construction. During functions, based on the smallest and will increase the extent of visual operations, impacts to land use will be largest combinations of the linear intrusion. limited to the rights-of-way. The rights- facility options. An additional 246 to Adverse impacts to night sky of-way land requirements vary by 949 acres (100 to 384 hectares) of habitat conditions could occur during both facility type, and the associated impacts could be temporarily removed or construction and operations due to the will last for at least the life of the disturbed during construction. Impacts installation of high-intensity lighting utilities. The linear facilities will be to terrestrial species will be similar to within and around the site. Light consistent with the intent of the zoning those described above. DOE requires, as reflected upward will create regionally districts through which they pass. a condition of its decision, measures to visible light pollution and sky glow. Generally, existing land uses will be protect listed species (see Mitigation). Strobe lighting (if required by the expected to continue after the linear At the polygen plant site up to 600 Federal Aviation Administration) on the facilities are constructed. acres (243 hectares) of suitable habitat top of the taller plant structures will Socioeconomics and Community for scrubland-nesting migratory birds adversely affect night sky conditions by Services and their nests will be permanently imposing high-intensity flashing lights removed. Introduced species (European that will be regionally visible. Impacts to local and regional starlings and house sparrows) Transmission line structures will population during construction will be commonly associated with development adversely impact the view-shed because minor because most workers will activities (e.g., maintained landscaping, of their height and intrusive vertical commute from nearby communities. open trash receptacles) could encroach form contrasts with the landscape and Impacts to population during operations on the plant site and displace or out- because they will be visible from major will be negligible because most of the compete native songbird species. travel routes. Because of existing power 150 permanent workers will come from Migratory birds could experience noise- lines, however, they will not become a the local population, although some related impacts. Additional habitat loss focus of viewer attention. may come from outside the area. for migratory birds will occur from the Minor adverse impacts will occur Existing housing and hotel supply will construction and operation of the linear during construction of pipelines be adequate to meet demands during facilities. Furthermore, disturbance from because equipment and trenches will be operations and most of the construction access road construction and use could visible and because vegetation will be phase. Because TCEP workers will come displace migratory birds from areas cleared along rights-of-ways. Although primarily from the existing nearby

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populations, no changes are anticipated either the Electric Reliability Council of Human Health, Safety, and Accidents in the demand for law enforcement, Texas (ERCOT) grid or the Southwestern During construction, Summit will emergency response, health services, Power Pool (SPP) grid. The nature of the follow established procedures to schools, and recreational opportunities upgrades will be further defined as provide a safe and healthy environment in the region. interconnection studies are completed. for workers, contractors, visitors, and During most of the construction, GDP These upgrades could involve local the community. Based on industry in the region of influence (Ector, installation of larger conductors, new workplace hazard statistics, the TCEP Midland, Crane and Ward Counties) is power transmission line segments, and construction workforce could estimated to increase by more than 0.4 upgrades of other local system experience 91.65 nonfatal, recordable percent. During the final year of components. incidents and 48.75 lost workdays. construction, it will increase an Statistics suggest that fatalities are estimated 0.67 percent. During Transportation operations, it will increase by about 0.16 unlikely (0.19 fatality) during the three- Several routes were considered as percent, representing a long-term and year construction period. potential new access roads to the beneficial impact for the region. Tax Design features and safety programs polygen plant site. One route is directly revenue from the TCEP will have a will be established by Summit to from the community of Penwell, linking beneficial and long-term impact to the minimize hazards during operations of FM 1601 to the plant site via an region as revenue will be redistributed the TCEP and linear facilities. Based on underpass beneath the railroad at the to counties, which in turn will allocate industry workplace hazard statistics, southern border of the plant. The other and redistribute to local communities. over the life of the project the TCEP routes are from the east and northeast of operations workforce could experience Environmental Justice the plant site, connecting either to FM 158 recordable incidents, 122 lost Construction and operation of the 866 or an I–20 frontage road. workdays, and less than one fatality. proposed project are not anticipated to During the period of plant Adverse impacts to human health and have disproportionately high and construction, local traffic will increase safety, although unlikely, could result adverse impacts on minority or low- as a function of the employment levels from various types of accidents or acts income populations in the area around at the plant site. Delays associated with of sabotage and terrorism, ranging from the TCEP. Ector County has a higher merging traffic and increased percent of small pipeline leaks to, in an extremely concentration of minority populations time spent following slow vehicles will unlikely case, an explosion at the than the state as a whole, and many affect the level of service (LOS) of each polygen plant. The greatest risks to areas of the county have higher road to which a plant site access road human health and safety are associated concentrations of low-income may be connected. Construction with sudden, unconstrained releases of individuals and families. Minority and activities will result in temporary toxic gases, such as ammonia (NH3) and low-income populations were not localized traffic delays, and most hydrogen sulfide (H2S). Exposure identified in the immediate vicinity of impacts will occur during shift changes. modeling of unmitigated releases using worst-case atmospheric conditions was the TCEP (e.g., region of influence for During TCEP operations, there will be operational noise). Project emissions are used to evaluate the risks of various an average of four additional 150-car levels of harm. These analyses were not expected to cause significant air unit-trains per week along the railroad quality impacts or exceed regulatory made assuming no mitigations are used; (Union Pacific), amounting to a 3 therefore, these risks can be reduced thresholds. Impacts to surface and percent increase over the existing rail ground water resources are not expected with the appropriate measures, such as traffic on this line. Under the peak urea planning, design and engineering to be high. Construction-related traffic production option, there would be an congestion and traffic noise would controls. While the probability of average of approximately six additional intentional acts like sabotage and temporarily increase significantly in 150-car unit-trains per week along the some road segments very near the plant terrorism cannot be easily predicted, the railroad, amounting to a five percent consequences could be similar to the site, but these impacts are not expected increase in rail traffic. Neither option to be disproportionate. Noise generated accidents analyzed in the risk represents an increase that would assessment. by operations and construction of the exceed system capacity nor cause delay project would be significant locally; During operations of the polygen to existing railway operations. Because plant, the risk of someone being killed however, these impacts would not be the loading and unloading of TCEP- disproportionate on environmental by exposure to a toxic gas in the event related materials will occur on the of a release would vary depending on justice populations. railroad spur, no impacts to the railroad In general, the project could his location relative to the release. The will occur. disproportionally harm minority and risk per year ranges from one in 1,000 low-income communities in regard to Materials and Waste Management to one in 100,000,000 of being killed in housing availability (primarily short- the project area. Toxic substance term housing, such as motels), utility No impacts will occur from the hazards are dominated by the potential rates, and safety issues associated with management of construction materials. releases of ammonia gas from the increased traffic, but these impacts are Furthermore, no impacts will occur to pipeline leading from the ammonia not expected to be high. Short-term the supply of construction materials as synthesis unit to the urea synthesis beneficial impacts could include an a result of the demand from the project. plant, or through ammonia production increase in employment opportunities Operations materials will include coal, or storage processes. Risks are greatest and higher wages during construction. natural gas, process water, process to those workers closest to the ammonia chemicals, and commercially synthesis unit. Utility Service marketable products. No impacts from To accommodate the electricity the management of these materials are Noise and Vibration generated by the TCEP, there may be a expected. Plans for delivery, handling, During construction, equipment noise need for system upgrades associated and storage of operations materials will will be perceptible outdoors at the with the electrical interconnection to be in place before operations begin. Penwell receptor locations north of I–

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20; however, people south of I–20 will discharge or water reuse concepts, resident and migratory birds may be likely not hear a substantial increase in which help reduce water consumption attracted to the proposed evaporation noise owing to existing noise from and minimize the quantity of waste ponds spanning 160 acres in this arid vehicles on I–20. Intermittent increases water. area. TPWD therefore recommends a in noise will result from steam venting bird deterrent system be developed for Comments Received on the Final EIS prior to and during plant startup and the evaporation ponds. In anticipation commissioning. Although this venting DOE received comments, both oral of this request, this ROD includes a will briefly exceed acceptable Federal and written, from U.S. EPA’s Region 6 requirement for a bird deterrent plan Transit Administration (FTA) levels for on the Final EIS concerning the lack of and the implementation of the plan, if residential areas (there will be a series identification of preferred alternatives Summit chooses to use solar of short loud blasts over a two-week and the need to further investigate evaporation ponds (see Mitigation). period), the FTA’s commercial-area potential impacts to resources in More specifically, this ROD requires construction threshold levels will not be association with some of the options. that high salinity ponds be designed and exceeded. EPA’s Region 6 found that DOE’s constructed to be ready for the Construction of some linear facilities revisions to the Draft EIS were generally installation of netting. TPWD further (WL3, TL5, TL6, NG1–NG3, and AR1) improvements, but it remains concerned asks that it be contacted to discuss will likely create temporary, adverse that a preferred alternative for each of specific details of a bird deterrent noise impacts to residents where the the linear facilities was not identified in system. DOE and Summit will consult proposed lines are located close to the Final EIS. Region 6 understood that with TPWD during the development of residential areas. Summit could not identify a preferred the bird deterrent plan. During polygen plant operations, alternative for each of the linear TPWD supports Summit’s preferred several plant components (e.g., facilities until additional investigations option of using Midland’s municipal generators, pumps, fans, vents, relief occur. waste water as a supply for the polygen valves, coal delivery/handling system) For the TCEP, DOE identified its plant. However, TPWD believes that will generate noise. This operational preferred alternative in the Final EIS, waterline option WL1 appears to better noise will exceed the EPA’s 55 dBA Ldn which is to fund the project. Subject to minimize adverse impacts to surface outdoor noise threshold at the two the mitigations required by this ROD waters than WL5 because it has fewer closest noise-sensitive receptors in and given the information presented in crossings of Monahans Draw. To Penwell (exceeding the threshold by 6 the Final EIS, DOE has no preference minimize impacts to the draw, TPWD and 4 dBA). Long-term indoor noise among the options not dismissed from recommends that the TCEP use levels are expected to be in compliance further consideration by this ROD. DOE directional drilling rather than with EPA health and safety guidelines. finds all the remaining options to be trenching for pipeline crossings equally acceptable, provided that Environmentally Preferred Alternative regardless of the waterline route chosen. Summit undertakes the mitigations The EIS notes that trenching, if this From a local perspective, the no- required by this ROD. method of pipeline installation is action alternative is environmentally EPA’s Region 6 also requested that chosen, would include restoration preferable because it would result in no DOE make a commitment in the ROD procedures, such as stream bank changes to the existing environmental that, if field investigations reveal that an stabilization and revegetation. Further conditions. However, from a national option chosen by Summit has impacts site investigations into the technical perspective, DOE’s Proposed Action is greater than those identified in the EIS, feasibility, costs, and potential for the environmentally preferred DOE would prepare a supplemental adverse impacts would be completed alternative because it could hasten the analysis. EPA further requested that the before determining the exact stream deployment of carbon capture and supplement analysis be provided to all crossing locations, method of pipeline sequestration practices at power plants regulatory agencies, including the EPA, installation at streambeds, and and other industrial facilities around the for review. DOE will gather additional mitigation methods. world in an effort to reduce greenhouse information and, if that information One individual submitted comments gas emissions that otherwise will occur reveals potential impacts that are not on the Final EIS. These comments with the continued combustion of fossil adequately addressed in the EIS, it will encourage the use of desalinated fuels, especially coal, in stationary prepare a Supplement Analysis to assist brackish or brine ground water facilities. In addition to demonstrating DOE in determining whether a (particularly water co-produced with oil carbon capture from a power plant and supplemental EIS is needed. and gas) and provided an Internet sequestration of captured CO2 through DOE also received comments in address for an article on emerging EOR, the TCEP will encourage faster writing from the Texas Parks and desalination technologies that may cost deployment of several other Wildlife Department (TPWD) on the less for waters produced from oil fields. technologies that, if widely deployed by Final EIS concerning protection of The comments also suggest that Summit industry, could help reduce wildlife and habitat. should consider a larger desalination environmental impacts: (1) Integrated TPWD recommended that DOE review system that could serve both the TCEP gasification combined-cycle technology, TPWD’s comments and and some portion of the municipal which allows for the production of more recommendations submitted during the water supply needs of Odessa. In electricity from a given quantity of coal public scoping and comment periods as response, Summit indicates that it is compared to convention power plants; many of these remain applicable to the investigating various desalination (2) polygeneration, which may allow for project described in the Final EIS. As systems and currently plans to size its lower cost and more efficient requested, DOE has again reviewed system to meet the TCEP’s needs production of electricity and various these two submittals and has factored assuming that brackish water from the other products (including products TPWD’s previous comments and Capitan Reef Complex Aquifer would be made using captured CO2, such as urea); recommendations into this ROD, the source. Summit further indicates (3) dry cooling, which greatly reduces particularly in the section on Mitigation. that it has engaged in preliminary water consumption or usage by various TPWD notes that because few water discussions with representatives of the industrial processes; (4) zero liquid sources exist on or near the project site, city of Odessa regarding the possibilities

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for cooperation in the desalination of and the implementing regulations of the Document 1,’’ ‘‘Request for Cooperating water. Advisory Council on Historic Agency Status,’’ or ‘‘Communications to Issued in Pittsburgh, Pennsylvania on this Preservation at 36 CFR 800.2. and from Commission Staff.’’ Any 22nd of September 2011. l. Pacific Green Power, LLC filed a individual or entity interested in Anthony V. Cugini, Pre-Application Document (PAD; commenting on the PAD must do so by including a proposed process plan and November 22, 2011. Director, National Energy Technology schedule) with the Commission, Laboratory. o. At this time, the Commission pursuant to 18 CFR 5.6 of the intends to prepare an Environmental [FR Doc. 2011–25070 Filed 9–28–11; 8:45 am] Commission’s regulations. BILLING CODE 6450–01–P Assessment (EA) on the project, in m. A copy of the PAD is available for accordance with the National review at the Commission in the Public Environmental Policy Act, as Reference Room or may be viewed on DEPARTMENT OF ENERGY determined by the issues identified the Commission’s Web site (http:// during the scoping process. If an EIS is Federal Energy Regulatory www.ferc.gov), using the ‘‘eLibrary’’ determined to be required for the Commission link. Enter the docket number, project, the U.S. Army Corps of excluding the last three digits in the Engineers has requested to be a [Project No. 14145–001] docket number field to access the cooperating agency. document. For assistance, contact FERC Pacific Green Power, LLC; Notice of Online Support at Scoping Meetings Intent To File License Application, [email protected] or toll Filing of Pre-Application Document, free at 1–866–208–3676, or for TTY, Commission staff will hold two Denying Use of the Traditional (202) 502–8659. A copy is also available scoping meetings in the vicinity of the Licensing Process, Commencement of for inspection and reproduction from project at the time and place indicated Licensing Proceeding, Scoping, and the applicant listed in paragraph h. below. The daytime meeting will focus Solicitation of Study Requests and Register online at http:// on resource agency and non- Comments on the PAD and Scoping www.ferc.gov/docs-filing/ governmental organization (NGO) Document esubscription.asp to be notified via e- concerns, while the evening meeting is mail of new filing and issuances related primarily for receiving input from the a. Type of Filing: Notice of Request To public. We invite all interested Use the Traditional Licensing Process. to this or other pending projects. For assistance, contact FERC Online individuals, organizations, and agencies b. Project No.: 14145–001. to attend one or both of the meetings, c. Dated Filed: July 25, 2011. Support. and to assist staff in identifying d. Submitted by: Pacific Green Power, n. With this notice, we are soliciting particular study needs, as well as the LLC. study requests, as well as comments on e. Name of Project: Two Girls Creek the PAD and Scoping Document 1 scope of environmental issues to be Hydroelectric Project. (SD1). All study requests, as well as addressed in the environmental f. Location: On Two Girls Creek River, comments on the PAD and SD1 should document. The times and locations of in Linn County, Washington. The be sent to the address above in these meetings are as follows: project occupies United States lands paragraph h. In addition, all study Daytime Scoping Meeting administered by the Forest Service. requests, comments on the PAD and g. Filed Pursuant to: 18 CFR 5.3 of the SD1, requests for agency cooperator Dates: Tuesday, October 18, 2011, Commission’s regulations. status and all communications to and Time: 1 p.m.–4 p.m., h. Potential Applicant Contact: Mr. from Commission staff related to the Place: Sweet Home Ranger District David G. Harmon, P.E., Pacific Green merits of the potential application must Office, 4431 Highway 20, Sweet Home, Power, LLC, P.O. Box 44, Sweet Home, be filed with the Commission. OR 97386. Oregon 97386; phone: (541) 405–5236. Documents may be filed electronically i. FERC Contact: Jennifer Harper at via the Internet. See 18 CFR Evening Scoping Meeting (202) 502–6136; or e-mail at 385.2001(a)(1)(iii) and the instructions Date: Tuesday, October 18, 2011, [email protected]. on the Commission’s Web site http:// j. Pacific Green Power, LLC filed its www.ferc.gov/docs-filing/efiling.asp. Time: 6 p.m.–9 p.m., request to use the Traditional Licensing Commenters can submit brief comments Place: Sweet Home Senior and Process on July 25, 2011. With this up to 6,000 characters, without prior Community Center, 880 18th Ave, notice, the Director of the Division of registration, using the eComment system Sweet Home, OR 97386. Hydropower Licensing denies Pacific at http://www.ferc.gov/docs-filing/ Scoping Document 1 (SD1), which Green Power, LLC’s request to use the ecomment.asp. You must include your outlines the subject areas to be Traditional Licensing Process. name and contact information at the end addressed in the environmental k. With this notice, we are initiating of your comments. For assistance, document, was mailed to the informal consultation with: (a) The U.S. please contact FERC Online Support. individuals and entities on the Fish and Wildlife Service and NOAA Although the Commission strongly Commission’s mailing list. Copies of Fisheries under section 7 of the encourages electronic filing, documents SD1 will be available at the scoping Endangered Species Act and the joint may also be paper-filed. To paper-file, meetings, or may be viewed on the web agency regulations thereunder at 50 mail an original and seven copies to: at http://www.ferc.gov, using the CFR, Part 402; (b) NOAA Fisheries Kimberly D. Bose, Secretary, Federal ‘‘eLibrary’’ link. Follow the directions under section 305(b) of the Magnuson- Energy Regulatory Commission, 888 for accessing information in paragraph Stevens Fishery Conservation and First Street, NE., Washington, DC 20426. n. Based on all oral and written Management Act and implementing All filings with the Commission must comments, a Scoping Document 2 (SD2) regulations at 50 CFR 600.920; and (c) include the project name and number, may be issued. SD2, if needed, would the Oregon State Historic Preservation and bear the heading ‘‘Study Requests,’’ include a revised process plan and Officer, as required by section 106, ‘‘Comments on Pre-Application schedule, as well as a list of issues, National Historical Preservation Act, Document,’’ ‘‘Comments on Scoping based on the scoping process.

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Environmental Site Review DEPARTMENT OF ENERGY generating unit with a rated capacity of 70 kW; (5) a tailrace discharging into the The potential applicant and Federal Energy Regulatory Snake River; (6) a 135-foot-long, 34.5-kV Commission staff will conduct an Commission transmission line; and (7) appurtenant environmental site review of the project [Project No. 8866–009] facilities. on Wednesday, October 19, 2011, j. Description of Proceeding: starting at 9:30 a.m. All participants Lynn E. Stevenson; Notice of Section 6.4 of the Commission’s should meet at meet no later than 9:30 Termination of License by Implied regulations, 18 CFR 6.4, provides, a.m., at the parking lot adjacent to the Surrender and Soliciting Comments among other things, that it is deemed to west picnic area of Cascadia State Park, and Motions To Intervene be intent of a licensee to surrender a approximately 14 miles east of Sweet license, if the licensee abandons a Home off Highway 20. A map of Take notice that the following project for a period of three years. In Cascadia State Park is available at hydroelectric proceeding has been addition, standard Article 16 of the initiated by the Commission: http://www.oregonstateparks.org/ license for Project No. 8866 provides, in _ a. Type of Proceeding: Termination of pertinent part: images/pdf/cascadia map.pdf. There license by implied surrender. will be an approximately 30-minute If the Licensee shall cause or suffer b. Project No.: 8866–009. essential project property to be removed or drive to the site from the meet-up point. c. Date Initiated: September 23, 2011 All participants are responsible for their destroyed or to become unfit for use, without (notice date). adequate replacement, or shall abandon or own transportation to the site. Anyone d. Licensee: Lynn E. Stevenson. discontinue good faith operation of the with questions about the site visit e. Name and Location of Project: The project or refuse or neglect to comply with should contact Mr. David Harmon, at constructed 70-kilowatt (kW) Project the terms of the license and the lawful orders [email protected] or at (541) No. 2 is located on an unnamed stream, of the Commission * * *, the Commission 405–5236. which is a tributary of the Snake River will deem it to be the intent of the Licensee in Gooding County, ID (T. 6 S., R. 13 E., to surrender the license * * * Meeting Objectives sec. 18, lot 7, Boise Meridian, Idaho). The Commission issued a minor At the scoping meetings, staff will: (1) f. Proceeding Initiated Pursuant to: license for the project in 1986 to Lynn Standard Article 16 of the project’s 1 Initiate scoping of the issues; (2) review E. Stevenson. The project has not license and 18 CFR 6.4 (2011). operated since a downstream landslide and discuss existing conditions and g. FERC Contact: Diane Murray, (202) in 1993 and has been abandoned. On resource management objectives; (3) 502–8838. April 10, 2007, during the inspection of review and discuss existing information h. Deadline for filing comments, the project by the Portland Regional and identify preliminary information protests, and motions to intervene: office, Commission staff noted that the and study needs; (4) review, discuss, October 23, 2011. project was not operable and had not and finalize the process plan and Comments, Motions to Intervene, and been operated since the landslide in schedule for pre-filing activity that Protests may be filed electronically via 1993. During a May 11, 2010 inspection, incorporates the time frames provided the Internet. See 18 CFR Commission staff noted damage to the for in Part 5 of the Commission’s 385.2001(a)(l)(iii) and the instructions powerhouse and to the equipment in the regulations and, to the extent possible, on the Commission’s website under the powerhouse from previous flooding. By maximizes coordination of federal, state, ‘‘eFiling’’ link. Please include the letter of July 27, 2011 to the estate of and tribal permitting and certification project number (P–8866–009) on any Lynn E. Stevenson, Commission staff processes; and (5) discuss the documents or motions filed. If unable to required the licensee to show cause why appropriateness of any federal or state be filed electronically, documents may the Commission should not initiate a agency or Indian tribe acting as a be paper-filed. To paper-file, an original proceeding to terminate the license for cooperating agency for development of and eight copies should be mailed to: the project based on the licensee’s an environmental document. Secretary, Federal Energy Regulatory implied surrender of the licensee. The Commission, 888 First Street, NE., licensee did not respond. Meeting Procedures Washington, DC 20426. For more To date, the licensee has not made the information on how to submit these necessary repairs to resume operations The meetings will be recorded by a types of filings, please go to the at the project and the project is stenographer and will become part of Commission’s website located at http:// abandoned. the formal record of the Commission www.ferc.gov/filing-comments.asp. k. Location of the Order: A copy of the proceeding on the project. The Commission’s Rules of Practice order is available for inspection and Dated: September 23, 2011. and Procedure require all intervenors reproduction at the Commission in the Kimberly D. Bose, filing documents with the Commission Public Reference Room or may be to serve a copy of that document on viewed on the Commission’s website at Secretary. each person in the official service list http://www.ferc.gov using the [FR Doc. 2011–25055 Filed 9–28–11; 8:45 am] for the project. Further, if an intervenor ‘‘eLibrary’’ link. Enter the docket BILLING CODE 6717–01–P files comments or documents with the number excluding the last three digits in Commission relating to the merits of an issue that may affect the responsibilities 1 34 FERC ¶ 62,530 (1986). Mr. Stevenson died in of a particular resource agency, they 2003 and Black Canyon Bliss, LLC purchased the project lands and facilities from the estate of Lynn must also serve a copy of the document E. Stevenson. Neither the estate nor the current on that resource agency. owners have requested a transfer of license; i. Description of Existing Facilities: (1) therefore, the license remains with the estate of An intake at elevation 2,810 feet; (2) a Lynn Stevenson. The project has been mistakenly referred to as Project No. 8865 since 2004. The concrete transition box; (3) an 18-inch- Secretary of the Commission corrected this diameter, 400-foot-long steel penstock; oversight on July 18, 2011 with the issuance of a (4) a powerhouse containing a single Notice of Change in Docket Numbers.

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the docket number field to access the turbines and motor-generators; (2) a The different configurations would document. For assistance, call toll-free waterway between 7,600 and 15,800 feet depend on the best suited conditions, 1–866–208–3676 or e-mail long (depending on alternative ranging from a 4 unit, 500 megawatts [email protected]. For TTY, configuration), including inlet/outlet (MW) (4 units × 125 MW unit) call (202) 502–8659. structures at each reservoir, headrace configuration to a 4 unit, 1,000 MW l. Individuals desiring to be included tunnel, pressure shaft, buried penstock, (4 units × 250 MW unit) configuration on the Commission’s mailing list should and tailrace features connecting the allowing for 8 to 10 hours of continuous so indicate by writing to the Secretary upper reservoir, the underground output. Interconnection would exist at of the Commission. powerhouse, and the lower reservoir; the PacifiCorp/Rocky Mountain Power m. Filing and Service of Responsive and (3) a transmission line connecting Mona Substation: Alternative 1 would Documents—Any filings must bear in the underground powerhouse to the require roughly 6,000 feet; Alternative 2 all capital letters the title existing Mona substation. would require 10,000 feet; and ‘‘COMMENTS’, ‘‘PROTEST’’, or The applicant is studying the Alternative 3 would require 14,000 feet ‘‘MOTION TO INTERVENE’’, and following reservoir alternatives: of new transmission line. ‘‘RECOMMENTATIONS FOR TERMS Alternative 1: (1) A single 340-foot- Interconnection voltage may be 230 or AND CONDITIONS’’, as applicable, and high by 1,800-foot-long, concrete-faced 500 kilovolts; and annual generation the Project Number of the proceeding. dam across Old Canyon (upper would be within 1,800 to 4,500 n. Agency Comments—Federal, states, reservoir) having a total storage capacity gigawatthours, depending on and local agencies are invited to file of 18,000 acre-feet and a water surface constructed option. comments on the described proceeding. area of 203 acres at full pool elevation Applicant Contact: Mr. Nathan If an agency does not file comments of 5,874 feet above mean sea level (msl); Sandvig, Mona North Pumped Storage within the time specified for filing (2) an approximately 7,600-foot-long Project, LLC c/o enXco Development comments, it will be presumed to have water way connecting the upper Corporation, 517 SW., 4th Avenue, no comments. reservoir to a lower reservoir located Suite 300, Portland, OR 97204; phone about 2,300 feet south of the existing (503) 219–3166. Dated: September 23, 2011. Mona substation; (3) a 100-foot-high and FERC Contact: Brian Csernak; phone: Kimberly D. Bose, 13,000-foot-long earthfill ring dike (202) 502–6144. Secretary. (lower reservoir) located just south of Deadline for filing comments, motions [FR Doc. 2011–25054 Filed 9–28–11; 8:45 am] Mona, with a water surface area of 262 to intervene, competing applications BILLING CODE 6717–01–P acres at full pool elevation of 5,222 feet msl. (without notices of intent), or notices of Alternative 2: (1) A two dam intent to file competing applications: 60 DEPARTMENT OF ENERGY construction (upper reservoir) located days from the issuance of this notice. upstream of Right Fork and Old Canyon Competing applications and notices of Federal Energy Regulatory having a storage capacity of about 8,350 intent must meet the requirements of 18 Commission acre-feet and a water surface area of 152 CFR 4.36. Comments, motions to intervene, notices of intent, and [Project No. 14239–000] acres at full pond elevation of 6,527 feet msl, one dam would be 285 feet high competing applications may be filed Mona North Pumped Storage Project; and 1,900 feet long, and the other dam electronically via the Internet. See 18 Notice of Preliminary Permit would be 35 feet high and 800 feet long; CFR 385.2001(a)(1)(iii) and the Application Accepted for Filing and (2) an approximately 15,800-foot-long instructions on the Commission’s Web Soliciting Comments, Motions To waterway connecting the upper site http://www.ferc.gov/docs-filing/ Intervene, and Competing Applications reservoir to a lower reservoir about efiling.asp. Commenters can submit 2,000 feet north of the existing Mona brief comments up to 6,000 characters, On August 1, 2011, Mona North substation; and (3) a 60-foot-high and without prior registration, using the Pumped Storage Project, LLC, 13,000-foot-long, earthfill ring dike eComment system at http:// California, filed an application for a (lower reservoir) located north of the www.ferc.gov/docs-filing/ preliminary permit, pursuant to section existing Mona substation, with a water ecomment.asp. You must include your 4(f) of the Federal Power Act (FPA), surface area of 265 acres at full pool name and contact information at the end proposing to study the feasibility of the elevation of 5,153 feet msl. of your comments. For assistance, Mona North Pumped Storage Project Alternative 3: (1) A two dam please contact FERC Online Support at (Mona North Pumped Storage Project or construction (upper reservoir) located [email protected] or toll Project) to be located on Old Canyon upstream of Right Fork and Old Canyon free at 1–866–208–3676, or for TTY, Stream, near the town of Mona, Juab having a storage capacity of about (202) 502–8659. Although the County, Utah. The project affects federal 24,100 acre-ft and a water surface area Commission strongly encourages lands administered by the Bureau of of 238 acres at full pond elevation of electronic filing, documents may also be Land Management. The sole purpose of 6,580 feet msl, one dam would be 400 paper-filed. To paper-file, mail an a preliminary permit, if issued, is to feet high by 2,900 feet long and the original and seven copies to: Kimberly grant the permit holder priority to file other dam would be a 100 feet high by D. Bose, Secretary, Federal Energy a license application during the permit 3,600 feet long; (2) an approximately Regulatory Commission, 888 First term. A preliminary permit does not 7,700-foot-long waterway connecting Street, NE., Washington, DC 20426. authorize the permit holder to perform the upper reservoir to a lower reservoir More information about this project, any land-disturbing activities or north of the existing Mona substation; including a copy of the application, can otherwise enter upon lands or waters and (3) 250-foot-high and 1,200-foot- be viewed or printed on the ‘‘eLibrary’’ owned by others without the owners’ long, earthfill ring dike (lower reservoir) link of Commission’s Web site at express permission. located north of the existing Mona http://www.ferc.gov/docs-filing/ The proposed project would consist of substation, with a water surface area of elibrary.asp. Enter the docket number the following: (1) An underground 182 acres at full pool elevation of about (P–14239–000) in the docket number powerhouse containing the pump- 5,996 feet msl. field to access the document. For

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assistance, contact FERC Online a water surface area of about 261 acres document. For assistance, contact FERC Support. Full pool elevation 5,880 feet msl; (6) Online Support. Dated: September 23, 2011. location of lower reservoir and length of Dated: September 23, 2011. Kimberly D. Bose, water-way connection will be Kimberly D. Bose, determined later to ensure efficiency; (7) Secretary. Secretary. optimization of generation and energy [FR Doc. 2011–25056 Filed 9–28–11; 8:45 am] storage ranging from a 4 unit, 500 [FR Doc. 2011–25057 Filed 9–28–11; 8:45 am] BILLING CODE 6717–01–P megawatts (MW) (4 units × 125 MW BILLING CODE 6717–01–P unit) to a 4 unit, 1,000 MW (4 units × 250 MW unit) allowing for 8 to 10 hours DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY of continuous output; (8) Project’s Federal Energy Regulatory interconnection at this new substation Federal Energy Regulatory Commission would require roughly 5 mile-long Commission transmission line connecting [Project No. 14240–000] powerhouse to the substation, which my [Docket No. RM98–1–000] be one or two circuts. Interconnection Mona South Pumped Storage Project; Records Governing Off-the-Record voltage may be 230 or 500 kilovolts; and Communications; Public Notice Notice of Preliminary Permit (9) annual generation would be within Application Accepted for Filing and 1,800 to 4,500 gigawatthours depending This constitutes notice, in accordance Soliciting Comments, Motions To on constructed option. with 18 CFR 385.2201(b), of the receipt Intervene, and Competing Applications Applicant Contact: Mr. Nathan of prohibited and exempt off-the-record On August 1, 2011, Mona South Sandvig, Mona North Pumped Storage communications. Pumped Storage Project, LLC, Project, LLC c/o enXco Development Order No. 607 (64 FR 51222, California, filed an application for a Corporation, 517 SW 4th Avenue, Suite September 22, 1999) requires preliminary permit, pursuant to section 300, Portland, OR 97204; phone (503) Commission decisional employees, who 4(f) of the Federal Power Act (FPA), 219–3166. make or receive a prohibited or exempt proposing to study the feasibility of the FERC Contact: Brian Csernak; phone: off-the-record communication relevant Mona South Pumped Storage Project (202) 502–6144. to the merits of a contested proceeding, (Mona South Pumped Storage Project or Deadline for filing comments, motions to deliver to the Secretary of the Commission, a copy of the Project) to be located within Wide to intervene, competing applications communication, if written, or a Canyon, 4 miles southwest of Mona, (without notices of intent), or notices of summary of the substance of any oral Juab County, Utah. The project affects intent to file competing applications: 60 days from the issuance of this notice. communication. federal lands administered by the Prohibited communications are Competing applications and notices of Bureau of Land Management. The sole included in a public, non-decisional file intent must meet the requirements of 18 purpose of a preliminary permit, if associated with, but not a part of, the CFR 4.36. Comments, motions to issued, is to grant the permit holder decisional record of the proceeding. priority to file a license application intervene, notices of intent, and Unless the Commission determines that during the permit term. A preliminary competing applications may be filed the prohibited communication and any permit does not authorize the permit electronically via the Internet. See 18 responses thereto should become a part holder to perform any land-disturbing CFR 385.2001(a)(1)(iii) and the of the decisional record, the prohibited activities or otherwise enter upon lands instructions on the Commission’s Web off-the-record communication will not or waters owned by others without the site http://www.ferc.gov/docs-filing/ be considered by the Commission in owners’ express permission. efiling.asp. Commenters can submit reaching its decision. Parties to a The proposed project would consist of brief comments up to 6,000 characters, proceeding may seek the opportunity to the following: (1) An underground without prior registration, using the respond to any facts or contentions powerhouse containing the pump- eComment system at http:// made in a prohibited off-the-record turbines and motor-generators; (2) a www.ferc.gov/docs-filing/ communication, and may request that waterway roughly 7,100 feet-long, ecomment.asp. You must include your the Commission place the prohibited including inlet/outlet structures at each name and contact information at the end communication and responses thereto reservoir, headrace tunnel, pressure of your comments. For assistance, in the decisional record. The shaft, buried penstock, and tailrace please contact FERC Online Support at Commission will grant such a request features connecting the upper reservoir, [email protected] or toll only when it determines that fairness so the underground powerhouse and the free at 1–866–208–3676, or for TTY, requires. Any person identified below as lower reservoir; (3) transmission line (202) 502–8659. Although the having made a prohibited off-the-record connecting the underground Commission strongly encourages communication shall serve the powerhouse to the proposed PacifiCorp/ electronic filing, documents may also be document on all parties listed on the Rocky Mountain Power Clover paper-filed. To paper-file, mail an official service list for the applicable Substation; (4) a two reservoir original and seven copies to: Kimberly proceeding in accordance with Rule construction (upper reservoir), a 370 D. Bose, Secretary, Federal Energy 2010, 18 CFR 385.2010. feet-long by 3,000 feet-long concrete- Regulatory Commission, 888 First Exempt off-the-record faced dam located within Wide Canyon Street, NE., Washington, DC 20426. communications are included in the bordered by Middle Ridge and Long More information about this project, decisional record of the proceeding, Ridge having a storage capacity of about including a copy of the application, can unless the communication was with a 20,400 acre-feet and a water surface area be viewed or printed on the ‘‘eLibrary’’ cooperating agency as described by 40 of 218 acres at full pool elevation of link of Commission’s Web site at http: CFR 1501.6, made under 18 CFR 6,480 above mean sea level (msl); (5) a //www.ferc.gov/docs-filing/elibrary.asp. 385.2201(e)(1)(v). 110 foot-high and 13,000 feet-high, Enter the docket number (P–14240–000) The following is a list of off-the- earthfill ring dike (lower reservoir) with in the docket number field to access the record communications recently

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received by the Secretary of the viewed on the Commission’s Web site at FERC, Online Support at Commission. The communications http://www.ferc.gov using the eLibrary [email protected] or toll listed are grouped by docket numbers in link. Enter the docket number, free at (866) 208–3676, or for TTY, ascending order. These filings are excluding the last three digits, in the contact (202) 502–8659. available for review at the Commission docket number field to access the in the Public Reference Room or may be document. For assistance, please contact

Docket No. File date Presenter or requester

Prohibited: 1. ER07–86–018, ER07–88–018; ER07–92–018 ...... 9–15–11 Donald Patton.1 2. P–11858–002/004, ER08–654–000, ER06–278–000 ...... 9–20–11 David Kates. Exempt: 1. CP10–480–000 ...... 9–20–11 Hon. Claire McCaskill. 2. CP10–480–000 ...... 9–8–11 Hon. Patrick J. Toomey. 3. DI10–9–000 ...... 9–12–11 Hon. Joyce A. Maker. 4. DI10–9–000 ...... 9–12–11 Linda S. Pagels-Wentworth. 5. Project No. 459–000 ...... 9–21–11 Hon. Blaine Luetkemeye, et al. 6. Project No. 459–000 ...... 9–9–11 Hon. Claire McCaskill. Hon. Roy Blunt. 7. Project No. 2149–000 ...... 9–21–11 Ron Walter. Keith W. Goehner. Doug England. 8. Project No. 13351–000 ...... 9–23–11 Joseph Adamson.2 1 Record of telephone call. 2 Teleconference Summary.

Dated: September 23, 2011. FOR FURTHER INFORMATION CONTACT: Implementation Plan (SIP) indicates that Kimberly D. Bose, Patricia Morris, Environmental transportation activities will not Secretary. Scientist, Control Strategies Section, Air produce new air quality violations, [FR Doc. 2011–25053 Filed 9–28–11; 8:45 am] Programs Branch, Air and Radiation worsen existing violations, or delay BILLING CODE 6717–01–P Division, United States Environmental timely attainment of the national Protection Agency, Region 5, 77 West ambient air quality standards. Jackson Boulevard, Chicago, Illinois The criteria by which we determine ENVIRONMENTAL PROTECTION 60604, (312) 353–8656, [email protected]. whether a SIP’s motor vehicle emission AGENCY budgets are adequate for transportation SUPPLEMENTARY INFORMATION: [EPA–R05–OAR–2011–0468; FRL–9473–1] conformity purposes are outlined in 40 Throughout this document, whenever CFR 93.118(e)(4). We have described ‘‘we’’, ‘‘us’’ or ‘‘our’’ is used, we mean Adequacy Status of the Ohio Portion of our process for determining the EPA. the Huntington/Ashland Submitted adequacy of submitted SIP budgets in Annual Fine Particulate Matter Background our July 1, 2004 preamble, starting at 69 Maintenance Plan for Transportation Today’s notice is simply an FR 40038, and we used the information Conformity Purposes announcement of findings that we have in these resources in making our AGENCY: Environmental Protection already made. On August 11, 2011, EPA adequacy determination. Please note Agency (EPA). Region 5 sent a letter to the Ohio that an adequacy review is separate ACTION: Notice of adequacy. Environmental Protection Agency from EPA’s completeness review, and it stating that we have made insignificance should not be used to prejudge EPA’s SUMMARY: In this notice, EPA is findings, through the adequacy process, ultimate approval of the SIP. Even if we notifying the public that we have made for PM2.5 and NOX for the Ohio portion find a budget adequate, the SIP could insignificance findings through the of the Huntington/Ashland area, as the later be disapproved. transportation conformity adequacy state had requested in its redesignation The findings are available at EPA’s process, under the Clean Air Act, for and maintenance plan submittal. transportation conformity Web site: directly emitted fine particulate matter Receipt of the submittal was announced http://www.epa.gov/otaq/ (PM2.5) and oxides of nitrogen (NOX) in on EPA’s transportation conformity Web the Ohio portion of the Huntington/ site. No comments were received. The stateresources/transconf/adequacy.htm. Ashland WV–KY–OH area. Ohio findings letter is available at EPA’s Authority: 42 U.S.C. 7401–7671q. submitted the insignificance findings conformity web site: http:// Dated: September 19, 2011. with the redesignation and maintenance www.epa.gov/otaq/stateresources/ Susan Hedman, plan submittal on May 4, 2011. As a transconf/adequacy.htm. result of our findings, the Ohio portion Transportation conformity is required Regional Administrator, Region 5. of the Huntington/Ashland area is no by section 176(c) of the Clean Air Act. [FR Doc. 2011–25080 Filed 9–28–11; 8:45 am] longer required to perform a regional EPA’s conformity rule requires that BILLING CODE 6560–50–P emissions analysis for either directly transportation plans, programs, and emitted PM2.5 or NOX as part of future projects conform to state air quality PM2.5 conformity determinations for the implementation plans and establishes 1997 annual PM2.5 air quality standard. the criteria and procedures for DATES: These findings are effective determining whether or not they October 14, 2011. conform. Conformity to a State

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ENVIRONMENTAL PROTECTION Dated: September 13, 2011. received will be available for public AGENCY Richard C. Karl, inspection at the Superfund Record Director, Superfund Division, U.S. EPA Center, EPA Region 8, 1595 Wynkoop [FRL–9473–3] Region 5. Street, 3rd Floor, in Denver, Colorado. [FR Doc. 2011–25109 Filed 9–28–11; 8:45 am] DATES: Comments must be submitted on Proposed CERCLA Administrative Past BILLING CODE 6560–50–P Cost Recovery Settlement; IUNA, Inc. or before October 31, 2011. aka IU North America, Inc., Mine 2028 ADDRESSES: The Settlement Agreements Site, Brazil, IN, SF Site #B5KK ENVIRONMENTAL PROTECTION and additional background information AGENCY relating to the settlement are available AGENCY: Environmental Protection [FRL–9473–2] for public inspection at the Regional Agency (EPA). Records Center, EPA Region 8, 1595 ACTION: Notice; request for public Settlement Agreements for Recovery Wynkoop Street, 3rd Floor, in Denver, comment. of Past Response Costs; Granite Colorado. Comments and requests for a Timber Post and Pole Site, Philipsburg, copy of the Settlement Agreement SUMMARY: In accordance with Section Granite County, MT should be addressed to Virginia 122(i) of the Comprehensive AGENCY: Environmental Protection Phillips, Enforcement Specialist (8ENF– Environmental Response, Agency (EPA). RC), Technical Enforcement Program, Compensation, and Liability Act, as U.S. Environmental Protection Agency, amended (‘‘CERCLA’’), 42 U.S.C. ACTION: Notice and Request for Public 1595 Wynkoop Street, Denver, Colorado 9622(i), notice is hereby given of a Comment. 80202–1129, and should reference the proposed administrative settlement for SUMMARY: In accordance with the recovery of past response costs Granite Timber Site in Philipsburg, requirements of Section 122(i)(1) of the Montana. concerning the Mine 2028 site in Brazil, Comprehensive Environmental Clay County, Indiana with the following Response, Compensation, and Liability FOR FURTHER INFORMATION CONTACT: settling party: IUNA, Inc., also known as Act, as amended (CERCLA), 42 U.S.C. Virginia Phillips, Enforcement IU North America, Inc. The settlement 9622(i)(1), notice is hereby given of two Specialist, (8ENF–RC), Technical requires the settling party to pay Settlement Agreements under Section Enforcement Program, U.S. $100,000 to the Hazardous Substance 122 (h)(1) of CERCLA, 42 U.S.C. 9622 Environmental Protection Agency, 1595 Superfund. The settlement includes a (h)(1), between the United States Wynkoop Street, Denver, Colorado covenant not to sue the settling party Environmental Protection Agency (EPA) 80202–1129, (303) 312–6197. pursuant to Section 107(a) of CERCLA, and Margery Metesh (Settling Party) and 42 U.S.C. 9607(a). For thirty (30) days Mark Metesh (Settling Party), regarding It Is So Agreed: following the date of publication of this the Granite Timber Site (Site), located 5 Andrew M. Gaydosh, notice, the EPA will receive written miles south of Philipsburg and 0.5 miles comments relating to the settlement. Assistant Regional Administrator, Office of west of Montana Highway 10A in Enforcement, Compliance and Environmental The EPA will consider all comments Granite County, Montana. The Justice, U.S. Environmental Protection received and may modify or withdraw Settlement Agreements propose to Agency, Region 8. its consent to the settlement if compromise a claim the United States [FR Doc. 2011–25082 Filed 9–28–11; 8:45 am] comments received disclose facts or has at this Site for Past Response Costs, considerations which indicate that the as those terms are defined in the BILLING CODE 6560–50–P settlement is inappropriate, improper, Settlement Agreements. Under the terms or inadequate. The EPA’s response to of the Settlement Agreements, the EPA any comments received will be available and the Settling Parties agree that the FEDERAL ELECTION COMMISSION for public inspection at EPA’s Record Settling Parties have no ability to pay Center, U.S. EPA, Room 714, 77 West and the Settling Parties agree not to Sunshine Act Notice Jackson Boulevard, Chicago, IL 60604. assert any claims or causes of action against the United States or its DATES: Comments must be submitted on AGENCY: Federal Election Commission. or before October 31, 2011. contractors or employees with respect to the Site. Additionally, Margery Metesh DATE AND TIME: Tuesday, October 4, 2011 ADDRESSES: The proposed settlement is (Settling Party) agrees to file a deed at 10 a.m. available for public inspection at EPA’s record notice concerning a building on PLACE: Record Center, Room 714, U.S. EPA 77 a small portion of the Site property. In 999 E. Street, NW., Washington, West Jackson Boulevard, Chicago, IL. A exchange, the Settling Parties will be DC. copy of the proposed settlement may be granted a covenant not to sue under STATUS: obtained from Mr. Jerome Kujawa U.S. This meeting will be closed to section 107(a) of CERCLA, 42 U.S.C. the public. EPA–ORC (C–14J), 77 West Jackson 9607(a), with regard to reimbursement Blvd, Chicago, IL 60604 or of Past Response Costs. ITEMS TO BE DISCUSSED: Compliance [email protected] Comments Opportunity for Comment: For thirty matters pursuant to 2 U.S.C. 437g. should reference the Mine 2028 Site in (30) days following the publication of Audits conducted pursuant to 2 Brazil, Indiana and EPA Docket No. V– this notice, the EPA will consider all U.S.C. 437g, 438(b), and Title 26, U.S.C. W–11–C–977 and should be addressed comments received and may modify or Matters concerning participation in to Mr. Jerome Kujawa. withdraw its consent to that portion of civil actions or proceedings or FOR FURTHER INFORMATION CONTACT: Mr. the Settlement Agreement, if comments Jerome Kujawa, U.S. EPA Office of received disclose facts or considerations arbitration. Regional Counsel (C–14J), 77 West which indicate that the settlement is Internal personnel rules and Jackson Blvd., tel. #(312)-886–6731 or inappropriate, improper, or inadequate. procedures or matters affecting a [email protected]. The EPA’s response to any comments particular employee.

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CONTACT FOR INFORMATION: Judith section 10(d) of 5 U.S.C., Appendix 2 DEPARTMENT OF HEALTH AND Ingram, Press Officer, Telephone: (202) and 5 U.S.C. 552b(c)(6). Grant HUMAN SERVICES 694–1220. applications are to be reviewed and discussed at these meetings. These Agency for Healthcare Research and Shawn Woodhead Werth, discussions are likely to involve Quality Secretary and Clerk of the Commission. information concerning individuals [FR Doc. 2011–25311 Filed 9–27–11; 4:15 pm] associated with the applications, Patient Safety Organizations: BILLING CODE 6715–01–P including assessments of their personal Voluntary Relinquishment From HPI– qualifications to conduct their proposed PSO projects. This information is exempt AGENCY: Agency for Healthcare Research FEDERAL RESERVE SYSTEM from mandatory disclosure under the and Quality (AHRQ), HHS. above-cited statutes. Formations of, Acquisitions by, and ACTION: Notice of delisting. 1. Name of Subcommittee: Healthcare Mergers of Savings and Loan Holding SUMMARY: HPI–PSO: AHRQ has Companies; Correction Research Training (HCRT). Date: October 13–14, 2011 (Open from 8 accepted a notification of voluntary This notice corrects a notice (FR Doc. a.m. to 8:15 a.m. on October 13 and closed relinquishment from the HPI–PSO, a 2011–24388) published on page 58812 for remainder of the meeting). component entity of Healthcare Performance Improvement, LLC, of its of the issue for Thursday, September 22, Place: Gaithersburg Marriott status as a Patient Safety Organization 2011. Washingtonian Center, 9751 Washingtonian Boulevard, Gaithersburg, Maryland 20878. (PSO). The Patient Safety and Quality Under the Federal Reserve Bank of Improvement Act of 2005 (Patient Safety Philadelphia heading, the entry for 2. Name of Subcommittee: Healthcare Act), Public Law 109–41, 42 U.S.C. Polonia MHC, Huntington, Valley, Effectiveness and Outcomes Research 299b–21—b–26, provides for the Pennsylvania, is revised to read as (HEOR). Date: October 18–19, 2011 (Open from 8:30 formation of PSOs, which collect, follows: a.m. to 8:45 a.m. on October 18 and closed aggregate, and analyze confidential A. Federal Reserve Bank of for remainder of the meeting). information regarding the quality and Philadelphia (William Lang, Senior Vice Place: Gaithersburg Marriott safety of health care delivery. The President) 100 North 6th Street, Washingtonian Center, 9751 Washingtonian Patient Safety and Quality Improvement Philadelphia, Pennsylvania 19105– Boulevard, Gaithersburg, Maryland 20878. Final Rule (Patient Safety Rule), 42 CFR 1521: 3. Name of Subcommittee: Health Systems Part 3, authorizes AHRQ, on behalf of 1. Polonia MHC, Huntingdon Valley, and Value Research (HSVR). the Secretary of HHS, to list as a PSO Pennsylvania; to convert to stock form Date: October 19–20, 2011 (Open from 8:30 an entity that attests that it meets the and merge with Polonia Bancorp, Inc., a.m. to 8:45 a.m. on October 19 and closed statutory and regulatory requirements Baltimore, Maryland, which proposes to for remainder of the meeting). for listing. A PSO can be ‘‘delisted’’ by Place: Gaithersburg Marriott become a savings and loan holding the Secretary if it is found to no longer company by acquiring Polonia Bank, Washingtonian Center, 9751 Washingtonian Boulevard, Gaithersburg, Maryland 20878. meet the requirements of the Patient Huntingdon Valley, Pennsylvania. Safety Act and Patient Safety Rule, 4. Name of Subcommittee: Health Comments on this application must including when a PSO chooses to be received by October 17, 2011. Information Technology Research (HITR). Date: October 20–21, 2011 (Open from 8:30 voluntarily relinquish its status as a Board of Governors of the Federal Reserve a.m. to 8:45 a.m. on October 20 and closed PSO for any reason. System, September 26, 2011. for remainder of the meeting). DATES: The directories for both listed Robert deV. Frierson, Place: Gaithersburg Marriott and delisted PSOs are ongoing and Deputy Secretary of the Board. Washingtonian Center, 9751 Washingtonian reviewed weekly by AHRQ. The [FR Doc. 2011–25093 Filed 9–28–11; 8:45 am] Boulevard, Gaithersburg, Maryland 20878. delisting was effective at 12 midnight BILLING CODE 6210–01–P 5. Name of Subcommittee: Healthcare ET (2400) on August 31, 2011. Safety and Quality Improvement Research ADDRESSES: Both directories can be (HSQR). accessed electronically at the following DEPARTMENT OF HEALTH AND Date: November 1–2, 2011 (Open from 8 HHS Web site: http:// a.m. to 8:15 a.m. on November 1 and closed HUMAN SERVICES for remainder of the meeting). www.pso.AHRQ.gov/index.html. Place: Gaithersburg Marriott FOR FURTHER INFORMATION CONTACT: Agency for Healthcare Research and Washingtonian Center, 9751 Washingtonian Diane Cousins, RPh., Center for Quality Quality Boulevard, Gaithersburg, Maryland 20878. Improvement and Patient Safety, AHRQ, 540 Gaither Road, Rockville, MD 20850; Notice of Meetings Contact Person: Anyone wishing to obtain a roster of members, agenda or minutes of the Telephone (toll free): (866) 403–3697; In accordance with section 10(d) of nonconfidential portions of the meetings Telephone (local): (301) 427–1111; TTY the Federal Advisory Committee Act as should contact Mrs. Bonnie Campbell, (toll free): (866) 438–7231; TTY (local): amended (5 U.S.C., Appendix 2), the Committee Management Officer, Office of (301) 427–1130; E-mail: Agency for Healthcare Research and Extramural Research, Education and Priority [email protected]. Quality (AHRQ) announces meetings of Populations, AHRQ, 540 Gaither Road, Suite 2000, Rockville, Maryland 20850, Telephone SUPPLEMENTARY INFORMATION: scientific peer review groups. AHRQ (301) 427–1554. Background also announces renaming of the Agenda items for these meetings are scientific peer review groups. The subject to change as priorities dictate. The Patient Safety Act authorizes the subcommittees listed below are part of listing of PSOs, which are entities or the Agency’s Health Services Research Dated: September 14, 2011. component organizations whose Initial Review Group Committee. Carolyn M. Clancy, mission and primary activity is to The subcommittee meetings will be Director. conduct activities to improve patient closed to the public in accordance with [FR Doc. 2011–25029 Filed 9–28–11; 8:45 am] safety and the quality of health care the Federal Advisory Committee Act, BILLING CODE 4160–90–M delivery.

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HHS issued the Patient Safety Rule to voluntarily relinquish its status as a DEPARTMENT OF HEALTH AND implement the Patient Safety Act. PSO for any reason. HUMAN SERVICES AHRQ administers the provisions of the DATES: Patient Safety Act and Patient Safety The directories for both listed Agency for Healthcare Research and Rule (PDF file, 450 KB. PDF Help) and delisted PSOs are ongoing and Quality relating to the listing and operation of reviewed weekly by AHRQ. The PSOs. Section 3.108(d) of the Patient delisting was effective at 12 Midnight Patient Safety Organizations: Safety Rule requires AHRQ to provide ET (2400) on July 20, 2011. Voluntary Relinquishment From the Patient Safety Group public notice when it removes an ADDRESSES: Both directories can be organization from the list of federally accessed electronically at the following AGENCY: Agency for Healthcare Research approved PSOs. AHRQ has accepted a HHS Web site: http:// and Quality (AHRQ), HHS. notification from the HPI–PSO, a www.pso.AHRQ.gov/index.html. ACTION: Notice of Delisting. component entity of Healthcare Performance Improvement, LLC, PSO FOR FURTHER INFORMATION CONTACT: SUMMARY: HPI–PSO: AHRQ has accepted number P0073, to voluntarily relinquish Diane Cousins, RPh., Center for Quality a notification of voluntary its status as a PSO. Accordingly, the Improvement and Patient Safety, AHRQ, relinquishment from The Patient Safety HPI–PSO, a component entity of 540 Gaither Road, Rockville, MD 20850; Group of its status as a Patient Safety Healthcare Performance Improvement, Telephone (toll free): (866) 403–3697; Organization (PSO). The Patient Safety was delisted effective at 12 midnight ET Telephone (local): (301) 427–1111; TTY and Quality Improvement Act of 2005 (2400) on August 31, 2011. (toll free): (866) 438–7231; TTY (local): (Patient Safety Act), Public Law 109–41, More information on PSOs can be (301) 427–1130; E-mail: 42 U.S.C. 299b–21—b–26, provides for obtained through AHRQ’s PSO Web site [email protected]. the formation of PSOs, which collect, at http://www.pso.AHRQ.gov/ aggregate, and analyze confidential index.html. SUPPLEMENTARY INFORMATION: information regarding the quality and safety of health care delivery. The Dated: September 19, 2011. Background Patient Safety and Quality Improvement Carolyn M. Clancy, Final Rule (Patient Safety Rule), 42 CFR The Patient Safety Act authorizes the Director. Part 3, authorizes AHRQ, on behalf of listing of PSOs, which are entities or [FR Doc. 2011–25027 Filed 9–28–11; 8:45 am] the Secretary of HHS, to list as a PSO component organizations whose BILLING CODE 4160–90–M an entity that attests that it meets the mission and primary activity is to statutory and regulatory requirements conduct activities to improve patient for listing. A PSO can be ‘‘delisted’’ by DEPARTMENT OF HEALTH AND safety and the quality of health care the Secretary if it is found to no longer HUMAN SERVICES delivery. meet the requirements of the Patient HHS issued the Patient Safety Rule to Safety Act and Patient Safety Rule, Agency for Healthcare Research and implement the Patient Safety Act. including when a PSO chooses to Quality AHRQ administers the provisions of the voluntarily relinquish its status as a PSO for any reason. Patient Safety Organizations: Patient Safety Act and Patient Safety DATES: The directories for both listed Voluntary Relinquishment From Illinois Rule (PDF file, 450 KB. PDF Help) and delisted PSOs are ongoing and PSO relating to the listing and operation of PSOs. Section 3.108(d) of the Patient reviewed weekly by AHRQ. The AGENCY: Agency for Healthcare Research Safety Rule requires AHRQ to provide delisting was effective at 12 Midnight and Quality (AHRQ), HHS. public notice when it removes an ET (2400) on September 7, 2011. ADDRESSES: Both directories can be ACTION: Notice of delisting. organization from the list of federally approved PSOs. AHRQ has accepted a accessed electronically at the following SUMMARY: Illinois PSO: AHRQ has notification from the Illinois PSO, PSO HHS Web site: http:// accepted a notification of voluntary number P0071, to voluntarily relinquish www.pso.AHRQ.gov/index.html. relinquishment from the Illinois PSO of its status as a PSO. Accordingly, the FOR FURTHER INFORMATION CONTACT: its status as a Patient Safety Illinois PSO was delisted effective at 12 Diane Cousins, RPh., Center for Quality Organization (PSO). The Patient Safety Midnight ET (2400) on July 20, 2011. Improvement and Patient Safety, AHRQ, and Quality Improvement Act of 2005 540 Gaither Road, Rockville, MD 20850; More information on PSOs can be (Patient Safety Act), Public Law 109–41, Telephone (toll free): (866) 403–3697; 42 U.S.C. 299b–21—b–26, provides for obtained through AHRQ’s PSO Web site Telephone (local): (301) 427–1111; TTY the formation of PSOs, which collect, at http://www.pso.AHRQ.gov/ (toll free): (866) 438–7231; TTY (local): aggregate, and analyze confidential index.html. (301) 427–1130; E-mail: information regarding the quality and Dated: September 19, 2011. [email protected]. safety of health care delivery. The Carolyn M. Clancy, SUPPLEMENTARY INFORMATION: Patient Safety and Quality Improvement Director. Final Rule (Patient Safety Rule), 42 CFR Background [FR Doc. 2011–25028 Filed 9–28–11; 8:45 am] Part 3, authorizes AHRQ, on behalf of The Patient Safety Act authorizes the the Secretary of HHS, to list as a PSO BILLING CODE 4160–90–M listing of PSOs, which are entities or an entity that attests that it meets the component organizations whose statutory and regulatory requirements mission and primary activity is to for listing. A PSO can be ‘‘delisted’’ by conduct activities to improve patient the Secretary if it is found to no longer safety and the quality of health care meet the requirements of the Patient delivery. Safety Act and Patient Safety Rule, HHS issued the Patient Safety Rule to including when a PSO chooses to implement the Patient Safety Act.

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AHRQ administers the provisions of the whether the information shall have claimant may identify incidents that Patient Safety Act and Patient Safety practical utility; (b) the accuracy of the may have resulted in undocumented Rule (PDF file, 450 KB. PDF Help) agency’s estimate of the burden of the radiation exposures, characterizing relating to the listing and operation of proposed collection of information; (c) radiological protection and monitoring PSOs. Section 3.108(d) of the Patient ways to enhance the quality, utility, and practices, and identify co-workers and Safety Rule requires AHRQ to provide clarity of the information to be other witnesses as may be necessary to public notice when it removes an collected; and (d) ways to minimize the confirm undocumented information. In organization from the list of federally burden of the collection of information this process, NIOSH uses a computer approved PSOs. AHRQ has accepted a on respondents, including through the assisted telephone interview (CATI) notification from The Patient Safety use of automated collection techniques system, which allows interviews to be Group, PSO number P0016, to or other forms of information conducted more efficiently and quickly voluntarily relinquish its status as a technology. Written comments must be as opposed to a paper-based interview PSO. Accordingly, The Patient Safety received within 60 days of this notice. instrument. Both interviews are Group was delisted effective at 12 Proposed Project voluntary and failure to participate in Midnight ET (2400) on September 7, either or both interviews will not have 2011. EEOICPA Dose Reconstruction a negative effect on the claim, although More information on PSOs can be Interviews and Forms—Extension— voluntary participation may assist the obtained through AHRQ’s PSO Web site National Institute for Occupational claimant by adding important at http://www.pso.AHRQ.gov/ Safety and Health (NIOSH), Centers for information that may not be otherwise index.html. Disease Control and Prevention (CDC). available. Dated: September 19, 2011. Background and Brief Description NIOSH uses the data collected in this Carolyn M. Clancy, On October 30, 2000, the Energy process to complete an individual dose Director. Employees Occupational Illness reconstruction that accounts, as fully as [FR Doc. 2011–25026 Filed 9–28–11; 8:45 am] Compensation Program Act of 2000 (42 possible, for the radiation dose incurred BILLING CODE 4160–90–M U.S.C. 7384–7385) was enacted. This by the employee in the line of duty for Act established a federal compensation DOE nuclear weapons production program for employees of the programs. After dose reconstruction, DEPARTMENT OF HEALTH AND Department of Energy (DOE) and certain NIOSH also performs a brief, voluntary HUMAN SERVICES of its contractors, subcontractors and final interview with the claimant to vendors, who have suffered cancers and explain the results and to allow the Centers for Disease Control and other designated illnesses as a result of claimant to confirm or question the Prevention exposures sustained in the production records NIOSH has compiled. This will [60Day–11–0530] and testing of nuclear weapons. also be the final opportunity for the Executive Order 13179, issued on claimant to supplement the dose Proposed Data Collections Submitted December 7, 2000, delegated authorities reconstruction record. assigned to ‘‘the President’’ under the for Public Comment and At the conclusion of the dose Act to the Departments of Labor, Health Recommendations reconstruction process, the claimant and Human Services, Energy and submits a form to confirm that the In compliance with the requirement Justice. The Department of Health and claimant has no further information to of Section 3506(c)(2)(A) of the Human Services (DHHS) was delegated provide to NIOSH about the claim at Paperwork Reduction Act of 1995 for the responsibility of establishing this time. The form notifies the claimant opportunity for public comment on methods for estimating radiation doses proposed data collection projects, the received by eligible claimants with that signing the form allows NIOSH to Centers for Disease Control and cancer applying for compensation. forward a dose reconstruction report to Prevention (CDC) will publish periodic NIOSH is applying the following DOL and to the claimant, and closes the summaries of proposed projects. To methods to estimate the radiation doses record on data used for the dose request more information on the of individuals applying for reconstruction. Signing this form does proposed projects or to obtain a copy of compensation. not indicate that the claimant agrees the data collection plans and In performance of its dose with the outcome of the dose instruments, call 404–639–5960 and reconstruction responsibilities, under reconstruction. The dose reconstruction send comments to Daniel Holcomb, CDC the Act, NIOSH is providing voluntary results will be supplied to the claimant Reports Clearance Officer, 1600 Clifton interview opportunities to claimants (or and to the DOL, the agency that will Road, MS–D74, Atlanta, GA 30333 or their survivors) individually and utilize them as one part of its send an e-mail to [email protected]. providing them with the opportunity to determination of whether the claimant Comments are invited on: (a) Whether assist NIOSH in documenting the work is eligible for compensation under the the proposed collection of information history of the employee by Act. is necessary for the proper performance characterizing the actual work tasks There is no cost to respondents other of the functions of the agency, including performed. In addition, NIOSH and the than their time.

ESTIMATED ANNUALIZED BURDEN HOURS

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

Initial interview ...... 4,200 1 1 4,200 Conclusion Form ...... 8,400 1 5/60 700

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ESTIMATED ANNUALIZED BURDEN HOURS—Continued

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

Total ...... 4,900

Dated: September 22, 2011. children and adolescents 0–17 has been development and fielding a preference- Daniel Holcomb, estimated at nearly 14%, while physical based survey instrument. Reports Clearance Officer, Centers for Disease and sexual abuse are estimated at 3.7% CDC has developed an exploratory Control and Prevention. and 0.6%, respectively (Finkelhor et al., survey instrument to quantify the [FR Doc. 2011–25010 Filed 9–28–11; 8:45 am] 2005). CM has been shown to have HRQoL impacts of child maltreatment BILLING CODE P lifelong adverse physical and mental following standardized HRQoL health consequences for victims (Felitti methods. The survey was developed et al., 1998), including behavioral based on findings from a literature DEPARTMENT OF HEALTH AND problems (Felitti et al. 1998; Repetti et review of CM outcomes, focus groups HUMAN SERVICES al. 2002), mental health conditions such with adult CM victims, and expert as post-traumatic stress disorder (PTSD) review of outcomes by clinician Centers for Disease Control and (Browne and Finkelhor, 1986; Holmes consultants who work with children Prevention and Sammel, 2005; Moeller and and/or adults who were victims of CM Bachman, 1993), increased trouble with [30Day–11–11AI] or who are researchers in the field of interpersonal relationships (Fang and CM. The survey is designed to quantify Agency Forms Undergoing Paperwork Corso, 2007), increased risk of chronic two types of data. The main objective is Reduction Act Review diseases (Browne and Finkelhor, 1986), the HRQoL decrement attributable to and lasting impacts or disability from CM, measured as the difference in The Centers for Disease Control and physical injury (Dominguez et al. 2001). HRQoL scores by CM victimization Prevention (CDC) publishes a list of The consequences of CM have both a history. A secondary objective is a information collection requests under direct impact, through reduced health, statistical evaluation of these review by the Office of Management and as well as an indirect impact, through decrements, based on respondent Budget (OMB) in compliance with the reduced health-related quality of life preferences over a series of comparisons Paperwork Reduction Act (44 U.S.C. (HRQoL, or simply QoL), the state of that will be shown to survey chapter 35). To request a copy of these ‘‘utility’’ or satisfaction that a person respondents. requests, call the CDC Reports Clearance experiences as a result of their health Officer at (404) 639–5960 or send an e- (Drummond et al. 1997). The online survey will be fielded to mail to [email protected]. Send written The CDC requests approval of a a nationally-representative sample of comments to CDC Desk Officer, Office of survey-based study to measure the 750 adults ages 18–29 and 1100 adults Management and Budget, Washington, Health-Related Quality-of-Life (HRQoL) ages 18 and up, for a total of 1850 U.S. DC or by fax to (202) 395–5806. Written impacts resulting from child adults. The survey will include HRQoL comments should be received within 30 maltreatment (CM) using a quantitative, questions to capture the two types of days of this notice. preference-based approach. The U.S. data above, as well as select items on Department of Health and Human sociodemographics. Past exposure to Proposed Project Services, among many others, has CM will be measured using the Child Measuring Preferences for Quality of identified child maltreatment as a Trauma Questionnaire (CTQ), the Life for Child Maltreatment—New— serious U.S. public health problem with briefest and most nonintrusive set of National Center for Injury Prevention substantial long-term physical and scientifically validated questions to and Control (NCIPC), Division of psychological consequences. Despite identify 5 types of past child abuse and Violence Prevention (DVP), Centers for considerable research on the neglect. Disease Control and Prevention (CDC). consequences of CM in adults, few Final results will provide an estimate studies have utilized standard HRQoL of the HRQoL burden of child Background and Brief Description techniques and none have quantified maltreatment in the United States. Child maltreatment (CM) is a major childhood HRQoL impacts. This gap in Analysis and results of the survey data public health problem in the United the literature means the full burden of may provide suggestive information on States, causing substantial morbidity CM on HRQoL has not been measured, the impacts of CM to the scientific and and mortality (DHHS, 2010), and the inhibiting the evaluation and public health communities to help prevalence for any of the three major comparison of CM intervention determine whether future studies using types of CM (physical abuse, sexual programs. This study will improve similar methods should be conducted abuse, and neglect) is estimated at public health knowledge and economic after this exploratory study. There is no approximately 28% (Hussey et al., evaluation of the HRQoL impacts of CM, cost to respondents other than their 2006). Additionally, the annual including effects specific to juvenile and time. The total estimated annual burden incidence of any type of CM among adolescent victims, through the hours are 771.

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ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number burden per Type of respondent Form name respondents responses per response respondent (in hours)

Adults, age 18–29 ...... Health Related Quality of Life Survey ...... 750 1 25/60 Adults, age 18+ ...... Health Related Quality of Life Survey ...... 1100 1 25/60

Dated: September 22, 2011. health messages to be as clear and appeal, and persuasiveness to target Daniel Holcomb, influential as possible, target audience audiences. Reports Clearance Officer, Centers for Disease members or representatives must be • Guide the action of health Control and Prevention. involved in developing the messages communication officials who are [FR Doc. 2011–25009 Filed 9–28–11; 8:45 am] and provisional versions of the responding to health emergencies, BILLING CODE 4163–18–P messages must be tested with members Congressionally-mandated campaigns of the target audience. with short timeframes, media-generated However, increasingly there are public concern, time-limited DEPARTMENT OF HEALTH AND circumstances when CDC must move communication opportunities, trends, HUMAN SERVICES swiftly to protect life, prevent disease, and the need to refresh materials or or calm public anxiety. Health message dissemination strategies in an ongoing Centers for Disease Control and testing is even more important in these campaign. Prevention instances, because of the critical nature of the information need. Each testing instrument will be based [30Day–11–0572] CDC receives a mandate from on specific health issues or topics. Although it is not possible to develop Agency Forms Undergoing Paperwork Congress with a tight deadline for one instrument for use in all instances, Reduction Act Review communicating with the public about a specific topic. For example, Congress the same kinds of questions are asked in The Centers for Disease Control and gave CDC 120 days to develop and test most message testing. This package Prevention (CDC) publishes a list of messages for a public information includes generic questions and formats information collection requests under campaign about Helicobacter pylori, a that can used to develop health message review by the Office of Management and bacterium that can cause stomach ulcers testing data collection instruments. Budget (OMB) in compliance with the and increase cancer risk if an infected These include a list of screening Paperwork Reduction Act (44 U.S.C. individual is not treated with questions, comprised of demographic chapter 35). To request a copy of these antibiotics. and introductory questions, along with requests, call the CDC Reports Clearance In the interest of timely health other questions that can be used to Officer at (404) 639–5960 or send an e- message dissemination, many programs create a mix of relevant questions for mail to [email protected]. Send written forgo the important step of testing each proposed message testing data comments to CDC Desk Officer, Office of messages on dimensions such as clarity, collection method. However, programs Management and Budget, Washington, salience, appeal, and persuasiveness may request to use additional questions DC or by fax to (202) 395–6974. Written (i.e., the ability to influence behavioral if needed. comments should be received within 30 intention). Skipping this step avoids the Message testing questions will focus days of this notice. delay involved in the standard OMB on issues such as comprehension, review process, but at a high potential Proposed Project impressions, personal relevance, cost. Untested messages can waste content and wording, efficacy of Health Message Testing System (OMB communication resources and response, channels, and spokesperson/ No. 0920–0572, Exp. 11/31/2011)— opportunities because the messages can sponsor. Such information will enable Revision—Office of the Associate be perceived as unclear or irrelevant. message developers to enhance the Director for Communication, Centers for Untested messages can also have effectiveness of messages for intended Disease Control and Prevention CDC). unintended consequences, such as audiences. jeopardizing the credibility of Federal Background and Brief Description health officials. Data collection methods proposed for Before CDC disseminates a health The Health Message Testing System HMTS include intercept interviews, message to the public, the message (HMTS), a generic information telephone interviews, focus groups, always undergoes scientific review. collection, will enable programs across online surveys, and cognitive However, even though the message is CDC to collect the information they interviews. In almost all instances, data based on sound scientific content, there require in a timely manner to: will be collected by outside is no guarantee that the public will • Ensure quality and prevent waste in organizations under contract with CDC. understand a health message or that the the dissemination of health information There is no cost to the respondents message will move people to take by CDC to the public. other than their time. The total recommended action. Communication • Refine message concepts and to test estimated annualized burden hours are theorists and researchers agree that for draft materials for clarity, salience, 2,470.

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TABLE A12A—ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Data collection methods respondents responses per response per method respondent (in hours)

Central Location Intercept Interviews, Telephone Interviews, Individual In-depth Interview (Cognitive Interviews), Focus Group Screenings, Focus Groups, Online Surveys ...... 18,525 1 8/60

Dated: September 19, 2011. include the Prevention and Public estimated annualized burden for in- Daniel Holcomb, Health Fund, established by the depth interviews is 67 hours. Reports Clearance Officer, Centers for Disease Affordable Care Act (ACA), which (2) In-person focus groups, primarily Control and Prevention. supports initiatives designed to reduce for creative concept testing, and online [FR Doc. 2011–25007 Filed 9–28–11; 8:45 am] the health and financial burden of focus groups, primarily for social media BILLING CODE 4163–18–P tobacco use through prevention and concept testing. The estimated burden cessation approaches. per response is 1–1.5 hours. The total CDC requests OMB approval of a new, estimated annualized burden for focus DEPARTMENT OF HEALTH AND generic clearance mechanism to support groups is 360 hours. HUMAN SERVICES information collection for the (3) Short surveys involving an average development, implementation and burden per response of 10 minutes, Centers for Disease Control and evaluation of tobacco-related health Prevention conducted online or through bulletin messages, health communication boards, for message platform testing, [30Day–11–11IN] programs, and campaigns. The proposed message validation and copy testing, generic mechanism will establish a pilot evaluation activities, and rough cut Agency Forms Undergoing Paperwork unified clearance framework for a broad testing. The total estimated annualized Reduction Act Review array of tobacco-related communication burden for short surveys is 1,334 hours. activities, which may occur on an as- The Centers for Disease Control and (4) Medium-length surveys involving needed basis, or in the context of a Prevention (CDC) publishes a list of an average burden of 25 minutes per coordinated series of activities. A information collection requests under response, conducted by telephone or generic clearance is needed to support review by the Office of Management and online, for campaign evaluation, the breadth, flexibility and time- Budget (OMB) in compliance with the quantitative social media concept sensitivity of information collections Paperwork Reduction Act (44 U.S.C. testing, and validation of advertisements required to plan, execute and evaluate chapter 35). To request a copy of these and Surgeon General report materials. an ACA-funded tobacco communication requests, call the CDC Reports Clearance The total estimated annualized burden campaign, as well as ongoing health Officer at (404) 639–5960 or send an for medium-length surveys is 5,555 communication efforts in CDC’s Office email to [email protected]. Send written hours. comments to CDC Desk Officer, Office of on Smoking and Health (OSH). OSH employs a strategic and systematic (5) In-depth surveys involving an Management and Budget, Washington, average burden of one hour per DC or by fax to (202) 395–5806. Written approach to the design and evaluation of high-quality health messages and response, for formative testing, outcome comments should be received within 30 evaluation, and analyses of exposure, days of this notice. campaigns, by applying scientific methods to the development of health awareness, and knowledge, attitudes or Proposed Project messages, obtaining input from public behavior. The total estimated annualized burden for in-depth surveys Testing and Evaluation of Tobacco health partners, and pre-testing with is 1,292 hours. Communication Activities—New— target audiences. Office on Smoking and Health (OSH), OMB approval for each data Results of these information National Center for Chronic Disease collection activity conducted under the collections will be used to improve the Prevention and Health Promotion generic clearance will be requested clarity, salience, appeal, and (NCCDPHP), Centers for Disease Control through a specific Information persuasiveness of messages and and Prevention (CDC). Collection Request that describes the campaigns that support the prevention activity’s purpose, use, methodology, and control of tobacco use. Background and Brief Description and burden on respondents. A variety of Approval of the generic mechanism is Tobacco use remains the leading methods will be employed, including: requested for three years. Respondents preventable cause of death in the United (1) In-depth interviews, such as will be members of the general public or States. Recent legislative developments cognitive interviews and interviews target populations. Participation in data highlight the importance of tobacco with key informants. In-depth collection is voluntary, and there are no control—and appropriate tobacco interviews will typically be conducted costs to respondents other than their control messages—in efforts to improve in-person with an average burden per time. The total estimated annualized the nation’s health. These developments response of one hour. The total burden hours are 8,608.

ESTIMATED ANNUALIZED BURDEN HOURS

Number of Average Type of respondents Data collection method Number of responses per burden per respondents respondent response

General Public and Special Populations ...... In-depth Interviews ...... 67 1 1 Focus Groups (In Person) ...... 160 1 1.5

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ESTIMATED ANNUALIZED BURDEN HOURS—Continued

Number of Average Type of respondents Data collection method Number of responses per burden per respondents respondent response

Focus Groups (Online) ...... 120 1 1 Short Surveys ...... 8,001 1 10/60 Medium Surveys ...... 13,334 1 25/60 In-depth Surveys ...... 1,292 1 1

Dated: September 22, 2011. on or postmarked by Friday, December the following meeting for the Daniel Holcomb, 30, 2011. aforementioned committee: Reports Clearance Officer, Centers for Disease ADDRESSES: Written comments, Times and Dates Control and Prevention. identified by docket number NIOSH– [FR Doc. 2011–25005 Filed 9–28–11; 8:45 am] 240, may be submitted by any of the 8 a.m.–6 p.m., October 25, 2011. BILLING CODE 4163–18–P following methods: 8 a.m.–1:15 p.m., October 26, 2011. • Mail: NIOSH Docket Office, Robert Place: CDC, Tom Harkin Global A. Taft Laboratories, MS–C34, 4676 Communications Center, 1600 Clifton DEPARTMENT OF HEALTH AND Columbia Parkway, Cincinnati, Ohio Road, NE., Building 19, Kent ‘‘Oz’’ HUMAN SERVICES 45226. Nelson Auditorium, Atlanta, Georgia • Facsimile: (513) 533–8285. 30333. Centers for Disease Control and • E-mail: [email protected]. Status: Open to the public, limited Prevention All information received in response only by the space available. [Docket Number NIOSH–240] to this notice will be available for public Purpose: The committee is charged examination and copying at the NIOSH with advising the Director, CDC, on the Request for Information: Docket Office, 4676 Columbia Parkway, appropriate uses of immunizing agents. Announcement of Carcinogen and Room 111, Cincinnati, Ohio 45226. A In addition, under 42 U.S.C. 1396s, the Recommended Exposure Limit (REL) complete electronic docket containing committee is mandated to establish and Policy Assessment all comments submitted will be periodically review and, as appropriate, revise the list of vaccines for AGENCY: National Institute for available on the NIOSH Web page at administration to vaccine-eligible Occupational Safety and Health http://www.cdc.gov/niosh/docket, and children through the Vaccines for (NIOSH) of the Centers for Disease comments will be available in writing Children (VFC) program, along with Control and Prevention (CDC), by request. NIOSH includes all schedules regarding the appropriate Department of Health and Human comments received without change in periodicity, dosage, and Services (HHS). the docket, including any personal information provided. All electronic contraindications applicable to the ACTION: Notice and extension of public vaccines. comment period. comments should be formatted as Microsoft Word. Please make reference Matters To Be Discussed: The agenda SUMMARY: On August 23, 2011, the to docket number NIOSH–240. will include discussions on: Child/ adolescent immunization schedules; Director of the National Institute for FOR FURTHER INFORMATION CONTACT: T.J. adult immunization schedule; human Occupational Safety and Health Lentz, telephone (513) 533–8260, or papillomavirus vaccine; hepatitis B (NIOSH) of the Centers for Disease Faye Rice, telephone (513) 533–8335, vaccine; meningococcal vaccines; Control and Prevention (CDC) published NIOSH, MS–C32, Robert A. Taft influenza; 13-valent pneumococcal a notice in the Federal Register (76 FR Laboratories, 4676 Columbia Parkway, conjugate vaccine; measles, mumps, and 52664) announcing its intent to ‘‘review Cincinnati, Ohio 45226. its approach to classifying carcinogens rubella (MMR) vaccine; febrile seizures and establishing recommended Dated: September 23, 2011. and vaccines; pertussis; immunization exposure limits (RELs) for occupational John Howard, coverage among children and exposures to hazards associated with Director, National Institute for Occupational adolescents; and vaccine supply. cancer.’’ As part of this effort, NIOSH Safety and Health, Centers for Disease Control Agenda items are subject to change as requested initial input on issues, and and Prevention. priorities dictate. answers to 5 questions. NIOSH has also [FR Doc. 2011–25039 Filed 9–28–11; 8:45 am] Contact Person for More Information: created a new NIOSH Cancer and RELs BILLING CODE 4163–19–P Stephanie B. Thomas, National Center Policy Web Topic Page [see http://www. for Immunization and Respiratory cdc.gov/niosh/topics/cancer/policy. Diseases, CDC, 1600 Clifton Road, NE., html] to provide additional details about DEPARTMENT OF HEALTH AND MS–A27, Atlanta, Georgia 30333, this effort and progress updates. HUMAN SERVICES telephone (404) 639–8836; E-mail Written comment was to be received [email protected]. Centers for Disease Control and by September 22, 2011. NIOSH has The Director, Management Analysis Prevention received a request to extend the and Services Office, has been delegated comment period to permit the public Advisory Committee on Immunization the authority to sign Federal Register more time to gather and submit Practices (ACIP) notices pertaining to announcements of information. NIOSH is extending the meetings and other committee public comment period to Friday, In accordance with section 10(a)(2) of management activities for both the December 30, 2011. the Federal Advisory Committee Act Centers for Disease Control and Public Comment Period: Written or (Pub. L. 92–463), the Centers for Disease Prevention, and Agency for Toxic electronic comments must be received Control and Prevention (CDC) announce Substances and Disease Registry.

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Dated: September 21, 2011. OMB recommends that written misbranded, subpotent, or expired drugs Elaine L. Baker, comments be faxed to the Office of are sold. Director, Management Analysis and Services Information and Regulatory Affairs, PDMA was enacted by Congress Office, Centers for Disease Control and OMB, Attn: FDA Desk Officer, FAX: because there were insufficient Prevention. 202–395–7285, or e-mailed to safeguards in the drug distribution [FR Doc. 2011–25012 Filed 9–28–11; 8:45 am] [email protected]. All system to prevent the introduction and BILLING CODE 4160–18–P comments should be identified with the retail sale of substandard, ineffective, or OMB control number 0910–0435. Also counterfeit drugs, and that a wholesale include the FDA docket number found drug diversion submarket had DEPARTMENT OF HEALTH AND in brackets in the heading of this developed that prevented effective HUMAN SERVICES document. control over the true sources of drugs. FOR FURTHER INFORMATION CONTACT: Congress found that large amounts of Food and Drug Administration Juanmanuel Vilela, Office of drugs had been reimported into the [Docket No. FDA–2011–N–0279] Information Management, Food and United States as U.S. goods returned Drug Administration, 1350 Piccard Dr., causing a health and safety risk to U.S. Agency Information Collection PI50–400B, Rockville, MD 20850, 301– consumers because the drugs may Activities; Submission for Office of 796–7651, become subpotent or adulterated during Management and Budget Review; [email protected]. foreign handling and shipping. Congress also found that a ready market for Comment Request; Prescription Drug SUPPLEMENTARY INFORMATION: In Marketing Act of 1987; Administrative compliance with 44 U.S.C. 3507, FDA prescription drug reimports had been Procedures, Policies, and has submitted the following proposed the catalyst for a continuing series of Requirements collection of information to OMB for frauds against U.S. manufacturers and review and clearance. had provided the cover for the AGENCY: Food and Drug Administration, importation of foreign counterfeit drugs. HHS. Prescription Drug Marketing Act of Congress also determined that the ACTION: Notice. 1987; Administrative Procedures, system of providing drug samples to Policies, and Requirements—21 CFR physicians through manufacturers’ SUMMARY: The Food and Drug Part 203—(OMB Control Number 0910– representatives had resulted in the sale Administration (FDA) is announcing 0435)—Extension to consumers of misbranded, expired, that a proposed collection of FDA is requesting OMB approval and adulterated pharmaceuticals. information has been submitted to the under the PRA (44 U.S.C. 3501–3520) The bulk resale of below-wholesale Office of Management and Budget for the reporting and recordkeeping priced prescription drugs by health care (OMB) for review and clearance under requirements contained in the entities for ultimate sale at retail also the Paperwork Reduction Act of 1995 regulations implementing the helped to fuel the diversion market and (the PRA). Prescription Drug Marketing Act of 1987 was an unfair form of competition to DATES: Fax written comments on the (PDMA) (Pub. L. 100–293). PDMA was wholesalers and retailers who had to collection of information by October 31, intended to ensure that drug products pay otherwise prevailing market prices. 2011. purchased by consumers are safe and FDA is requesting OMB approval for ADDRESSES: To ensure that comments on effective and to avoid an unacceptable the following reporting and the information collection are received, risk that counterfeit, adulterated, recordkeeping requirements:

TABLE 1—REPORTING REQUIREMENTS

21 CFR Section Requirement

203.11 ...... Applications for reimportation to provide emergency medical care. 203.30(a)(1) and (b) ...... Drug sample requests (drug samples distributed by mail or common carrier). 203.30(a)(3), (a)(4), and (c) ...... Drug sample receipts (receipts for drug samples distributed by mail or common carrier). 203.31(a)(1) and (b) ...... Drug sample requests (drug samples distributed by means other than the mail or a common carrier). 203.31(a)(3), (a)(4), and (c) ...... Drug sample receipts (drug samples distributed by means other than the mail or a common carrier). 203.37(a) ...... Investigation of falsification of drug sample records. 203.37(b) ...... Investigation of a significant loss or known theft of drug samples. 203.37(c) ...... Notification that a representative has been convicted of certain offenses involving drug sam- ples. 203.37(d) ...... Notification of the individual responsible for responding to a request for information about drug samples. 203.39(g) ...... Preparation by a charitable institution of a reconciliation report for donated drug samples.

TABLE 2—RECORDKEEPING REQUIREMENTS

21 CFR Section Requirement

203.23(a) and (b) ...... Credit memo for returned drugs. 203.23(c) ...... Documentation of proper storage, handling, and shipping conditions for returned drugs. 203.30(a)(2) and 203.31(a)(2) ...... Verification that a practitioner requesting a drug sample is licensed or authorized by the appro- priate State authority to prescribe the product. 203.31(d)(1) and (d)(2) ...... Contents of the inventory record and reconciliation report required for drug samples distributed by representatives.

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TABLE 2—RECORDKEEPING REQUIREMENTS—Continued

21 CFR Section Requirement

203.31(d)(4) ...... Investigation of apparent discrepancies and significant losses revealed through the reconcili- ation report. 203.31(e) ...... Lists of manufacturers’ and distributors’ representatives. 203.34 ...... Written policies and procedures describing administrative systems. 203.37(a) ...... Report of investigation of falsification of drug sample records. 203.37(b) ...... Report of investigation of significant loss or known theft of drug samples. 203.38(b) ...... Records of drug sample distribution identifying lot or control numbers of samples distributed. (The information collection in 21 CFR 203.38(b) is already approved under OMB control number 0910–0139). 203.39(d) ...... Records of drug samples destroyed or returned by a charitable institution. 203.39(e) ...... Record of drug samples donated to a charitable institution. 203.39(f) ...... Records of donation and distribution or other disposition of donated drug samples. 203.39(g) ...... Inventory and reconciliation of drug samples donated to charitable institutions. 203.50(a) ...... Drug origin statement. 203.50(b) ...... Retention of drug origin statement for 3 years. 203.50(d) ...... List of authorized distributors of record.

The reporting and recordkeeping prescription drug samples in writing; In the Federal Register of June 6, 2011 requirements are intended to help (5) to mandate storage, handling, and (76 FR 32362), FDA published a 60-day achieve the following goals: (1) To ban recordkeeping requirements for notice requesting public comment on the reimportation of prescription drugs prescription drug samples; (6) to the proposed collection of information. produced in the United States, except prohibit, with certain exceptions, the We received one comment. The when reimported by the manufacturer sale, purchase, or trade of, or the offer comment did not pertain to the or under FDA authorization for to sell, purchase, or trade, prescription information collection discussed in the emergency medical care; (2) to ban the drugs that were purchased by hospitals June 2011 Federal Register notice, but sale, purchase, or trade, or the offer to or other health care entities, or which commended the use of electronic and sell, purchase, or trade, of any were donated or supplied at a reduced automated health information solutions prescription drug sample; (3) to limit price to a charitable organization; (7) to to reduce costs and improve health care the distribution of drug samples to require unauthorized wholesale practitioners licensed or authorized to distributors to provide, prior to the efficiency. prescribe such drugs or to pharmacies of wholesale distribution of a prescription FDA Response: There were no issues hospitals or other health care entities at drug to another wholesale distributor or raised in the comment to be resolved. the request of a licensed or authorized retail pharmacy, a statement identifying FDA estimates the burden of this practitioner; (4) to require licensed or each prior sale, purchase, or trade of the collection of information as follows: authorized practitioners to request drug.

TABLE 3—ESTIMATED ANNUAL REPORTING BURDEN

Average Number of burden 21 CFR Section Number of responses per Total annual per Total hours respondents respondent respondents response (in hours)

203.11 ...... 1 1 1 .5 .5 203.30(a)(1) and (b) ...... 61,961 12 743,532 .06 44,612 203.30(a)(3), (a)(4), and (c) ...... 61,961 12 743,532 .06 44,612 203.31(a)(1) and (b) ...... 232,355 135 31,367,925 .04 1,254,717 203.31(a)(3), (a)(4), and (c) ...... 232,355 135 31,367,925 .03 941,038 203.37(a) ...... 50 4 200 .25 50 203.37(b) ...... 50 40 2,000 .25 500 203.37(c) ...... 1 1 1 1 1 203.37(d) ...... 50 1 50 .08 4 203.39(g) ...... 1 1 1 1 1

Total ...... 2,285,535.5 1 There are no operating and maintenance costs or capital costs associated with this collection of information.

TABLE 4—ESTIMATED ANNUAL RECORDKEEPING BURDEN

Average Number of Number of Total annual burden per 21 CFR Section recordkeepers records per records recordkeeping Total hours recordkeeper (in hours)

203.23(a) and (b) ...... 31,676 5 158,380 .25 39,595 203.23(c) ...... 31,676 5 158,380 .08 12,670 203.30(a)(2) and 203.31(a)(2) ...... 2,208 100 220,800 .50 110,400

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TABLE 4—ESTIMATED ANNUAL RECORDKEEPING BURDEN—Continued

Average Number of Number of Total annual burden per 21 CFR Section recordkeepers records per records recordkeeping Total hours recordkeeper (in hours)

203.31(d)(1) and (d)(2) ...... 2,208 1 2,208 40 88,320 203.31(d)(4) ...... 442 1 442 24 10,608 203.31(e) ...... 2,208 1 2,208 1 2,208 203.34 ...... 90 1 90 40 3,600 203.37(a) ...... 50 4 200 6 1,200 203.37(b) ...... 50 40 2000 6 1,200 203.39(d) ...... 65 1 65 1 65 203.39(e) ...... 3,221 1 3,221 .50 1,610 203.39(f) ...... 3,221 1 3,221 8 25,768 203.39(g) ...... 3,221 1 3,221 8 25,768 203.50(a) ...... 125 100 12,500 .17 2,125 203.50(b) ...... 125 100 12,500 .50 6,250 203.50(d) ...... 691 1 691 2 1,382 Total ...... 332,769

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

Dated: September 26, 2011. office in processing your requests. See create or confer any rights for or on any Leslie Kux, the SUPPLEMENTARY INFORMATION section person and does not operate to bind Acting Assistant Commissioner for Policy. for electronic access to the guidance FDA or the public. An alternative [FR Doc. 2011–25117 Filed 9–28–11; 8:45 am] document. approach may be used if such approach BILLING CODE 4160–01–P Submit electronic comments on the satisfies the requirements of the guidance to http://www.regulations.gov. applicable statutes and regulations. Submit written comments to the DEPARTMENT OF HEALTH AND Division of Dockets Management (HFA– III. Paperwork Reduction Act of 1995 HUMAN SERVICES 305), Food and Drug Administration, This guidance refers to previously 5630 Fishers Lane, rm. 1061, Rockville, approved collections of information Food and Drug Administration MD 20852. found in FDA regulations. These [Docket No. FDA–2011–D–0023] FOR FURTHER INFORMATION CONTACT: collections of information are subject to Angela Clarke, Center for Veterinary Guidance for Industry on Target review by the Office of Management and Medicine (HFV–112), Food and Drug Budget (OMB) under the Paperwork Animal Safety and Effectiveness Administration, 7500 Standish Pl., Reduction Act of 1995 (44 U.S.C. 3501– Protocol Development and Rockville, MD 20855, 240–276–8318; 3520). The collections of information in Submission; Availability e-mail: [email protected]. this guidance have been approved under AGENCY: Food and Drug Administration, SUPPLEMENTARY INFORMATION: OMB control no. 0910–0032. HHS. I. Background ACTION: Notice. IV. Comments In the Federal Register of February 3, SUMMARY: The Food and Drug 2011 (76 FR 6143), FDA published the Interested persons may submit to the Administration (FDA) is announcing the notice of availability for a draft guidance Division of Dockets Management (see availability of a guidance for industry entitled ‘‘Target Animal Safety and ADDRESSES) either electronic or written (#215) entitled ‘‘Target Animal Safety Effectiveness Protocol Development and comments regarding this document. It is and Effectiveness Protocol Development Submission,’’ giving interested persons only necessary to send one set of and Submission.’’ The purpose of this until April 19, 2011, to comment on the comments. It is no longer necessary to document is to provide sponsors draft guidance. FDA received one send two copies of mailed comments. guidance in preparation of study comment on the draft guidance and that Identify comments with the docket protocols for review by the Center for comment was considered as the number found in brackets in the Veterinary Medicine, Office of New guidance was finalized. Changes heading of this document. Received Animal Drug Evaluation. The include editorial revisions to improve comments may be seen in the Division recommendations included in this clarity regarding how and when data of Dockets Management between 9 a.m. guidance are intended to reduce the collection forms and standard operating and 4 p.m., Monday through Friday. time to protocol concurrence. procedures should be included with the DATES: Submit either electronic or protocol submission. The guidance V. Electronic Access written comments on Agency guidances announced in this notice finalizes the Persons with access to the Internet at any time. draft guidance dated February 2, 2011. ADDRESSES: Submit written requests for may obtain the guidance at either II. Significance of Guidance single copies of the guidance to the http://www.fda.gov/AnimalVeterinary/ Communications Staff (HFV–12), Center This level 1 guidance is being issued GuidanceComplianceEnforcement/ for Veterinary Medicine, Food and Drug consistent with FDA’s good guidance GuidanceforIndustry/default.htm or Administration, 7519 Standish Pl., practices regulation (21 CFR 10.115). http://www.regulations.gov. Rockville, MD 20855. Send one self- The guidance represents the Agency’s addressed adhesive label to assist that current thinking on the topic. It does not

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Dated: September 26, 2011. FOR FURTHER INFORMATION CONTACT: United States after the OTC drug review Leslie Kux, Ruth E. Scroggs, Center for Drug began in 1972. Acting Assistant Commissioner for Policy. Evaluation and Research, Food and In the Federal Register of January 23, [FR Doc. 2011–25115 Filed 9–28–11; 8:45 am] Drug Administration, 10903 New 2002 (67 FR 3060), FDA published a final rule that amended the OTC drug BILLING CODE 4160–01–P Hampshire Ave., Bldg. 22, rm. 5488, Silver Spring, MD 20993–0002, 301– review procedures in part 330 and 796–2090. included additional criteria and DEPARTMENT OF HEALTH AND SUPPLEMENTARY INFORMATION: procedures for classifying OTC drug HUMAN SERVICES products as GRASE and not I. Background misbranded. The final rule provided a Food and Drug Administration FDA is announcing the availability of process for establishing that certain OTC a guidance for industry entitled ‘‘Time drug products, which previously [Docket No. FDA–2004–D–0438] (Formerly required premarketing approval under 2004D–0027) and Extent Applications for Nonprescription Drug Products.’’ This section 505 of the FD&C Act to be Guidance for Industry on Time and guidance provides information about marketed, were eligible to be considered for inclusion in the OTC drug Extent Applications for how to request that a new condition be monograph system. Under the Nonprescription Drug Products; added to the OTC drug monograph regulation in § 330.14, an applicant Availability system. The OTC drug monograph system was established to evaluate the must first submit a TEA to show that the AGENCY: Food and Drug Administration, safety and effectiveness of all OTC drug drug product is eligible for inclusion in HHS. products marketed in the United States the OTC drug monograph system by ACTION: Notice. before May 11, 1972, that were not showing that the drug product has been marketed ‘‘to a material extent’’ and ‘‘for marketed under approved new drug a material time.’’ If FDA determines that SUMMARY: The Food and Drug applications (NDAs) and all OTC drug the condition meets the time and extent Administration (FDA) is announcing the products covered by ‘‘safety’’ NDAs that eligibility criteria, FDA publishes a availability of a guidance for industry were marketed in the United States notice of eligibility in the Federal entitled ‘‘Time and Extent Applications before enactment of the 1962 drug Register, and the applicant and other for Nonprescription Drug Products.’’ amendments to the Federal Food, Drug, interested parties have the opportunity This guidance describes a two-step and Cosmetic Act (the FD&C Act). In to submit safety and effectiveness data process on how to request that a new 1972, FDA began its OTC drug review to FDA for evaluation. This two-step condition be added to the over-the- to evaluate eligible OTC drug products counter (OTC) drug monograph system. process allows applicants to by categories or classes (e.g., antacids, demonstrate that eligibility criteria are The process includes submitting a time skin protectants), rather than on a and extent application (TEA) to met before expending resources to product-by-product basis, and to prepare safety and effectiveness data. determine whether a condition is develop ‘‘conditions’’ under which eligible for inclusion in the OTC drug In the Federal Register of February classes of OTC drug products are 10, 2004, FDA announced the monograph system and, if the condition generally recognized as safe and is found to be eligible, submitting safety availability of the draft guidance for effective (GRASE) and not misbranded. industry entitled ‘‘Time and Extent and effectiveness data. This guidance is FDA publishes these conditions, designed to clarify the TEA process and Applications.’’ FDA received comments including active ingredients, labeling, on the draft guidance, considered those what happens after a TEA is submitted. and other general conditions under This guidance finalizes the draft comments, and revised the guidance as which a class of OTC drug products is appropriate. The finalized TEA guidance for industry entitled ‘‘Time considered GRASE, in the Federal and Extent Applications’’ published in guidance announced in this document Register in the form of OTC drug replaces the February 2004 draft the Federal Register on February 10, monographs. Final monographs are 2004 (69 FR 6309). guidance. This guidance is designed to codified in 21 CFR parts 331 through clarify the TEA process. We are DATES: Submit either electronic or 358. Manufacturers seeking to market an providing this guidance because we written comments on Agency guidances OTC drug product covered by an OTC have received inquiries from the public at any time. drug monograph need not obtain FDA regarding the TEA process. ADDRESSES: Submit written requests for approval before marketing if their drug This guidance is being issued single copies of this guidance to the product meets the conditions in part consistent with FDA’s good guidance Division of Drug Information, Center for 330 (21 CFR part 330) and the practices regulation (21 CFR 10.115). Drug Evaluation and Research, Food applicable final monograph (§ 330.1). The guidance represents the Agency’s and Drug Administration, 10903 New Before § 330.14 went into effect in current thinking on TEAs. It does not Hampshire Ave., Bldg. 51, rm. 2201, 2002, there was no formal process to create or confer any rights for or on any Silver Spring, MD 20993–0002. Send add OTC drug products that had not person and does not operate to bind one self-addressed adhesive label to been marketed in the United States FDA or the public. An alternative assist that office in processing your before May 11, 1972, to the OTC drug approach may be used if such approach requests. See the SUPPLEMENTARY monograph system. Interested persons satisfies the requirements of the INFORMATION section for electronic were required to obtain premarketing applicable statutes and regulations. access to the guidance document. approval under section 505 of the FD&C Submit electronic comments on the Act (21 U.S.C. 355) if they wanted to II. Paperwork Reduction Act of 1995 guidance to http://www.regulations.gov. introduce into the United States an OTC This guidance refers to previously Submit written comments to the drug product that had been marketed approved collections of information Division of Dockets Management (HFA– solely in a foreign country. Companies found in FDA regulations. These 305), Food and Drug Administration, also were required to obtain collections of information are subject to 5630 Fishers Lane, rm. 1061, Rockville, premarketing approval to market OTC review by the Office of Management and MD 20852. drug products initially marketed in the Budget (OMB) under the Paperwork

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Reduction Act of 1995 (44 U.S.C. 3501– to gain additional insight about the on CD–ROM, after submission of a 3520). The collections of information in causes and impact of drug shortages, Freedom of Information request. Written § 330.14 have been approved under and possible strategies for preventing or requests are to be sent to the Division OMB control number 0910–0688. The mitigating drug shortages. of Freedom of Information (ELEM– collections of information in 21 CFR DATES: Either electronic or written 1029), Food and Drug Administration, part 25 and the guidance for industry comments will be accepted after the 12420 Parklawn Dr., Element Bldg., entitled ‘‘Environmental Assessment of workshop until December 23, 2011. Rockville, MD 20857. Human Drug and Biologics ADDRESSES: Submit electronic III. Comments Applications,’’ which are referenced in comments to http:// the guidance announced in this www.regulations.gov. Submit written Interested persons may submit to the document, are approved under OMB comments to the Division of Dockets Division of Dockets Management (see control number 0910–0322. Management (HFA–305), Food and Drug ADDRESSES) either electronic or written comments regarding this document. It is III. Comments Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852. only necessary to send one set of Interested persons may submit to the comments. It is no longer necessary to FOR FURTHER INFORMATION CONTACT: Division of Dockets Management (see send two copies of mailed comments. Christine Moser or Lori Benner, Center ADDRESSES) either electronic or written Identify comments with the docket for Drug Evaluation and Research, Food comments regarding this document. It is number found in brackets in the and Drug Administration, 10903 New only necessary to send one set of heading of this document. Received Hampshire Ave., Bldg. 22, Rm. 6202, comments. It is no longer necessary to comments may be seen in the Division Silver Spring, MD 20993–0002, 301– send two copies of mailed comments. of Dockets Management between 9 a.m. 796–1300. Identify comments with the docket and 4 p.m., Monday through Friday. number found in brackets in the SUPPLEMENTARY INFORMATION: Dated: September 26, 2011. heading of this document. Received I. Background comments may be seen in the Division Leslie Kux, of Dockets Management between 9 a.m. FDA held a public workshop Acting Assistant Commissioner for Policy. and 4 p.m., Monday through Friday. regarding CDER’s current approach to [FR Doc. 2011–25116 Filed 9–28–11; 8:45 am] addressing drug shortages. Given the BILLING CODE 4160–01–P IV. Electronic Access increasing number of drug shortages and Persons with access to the Internet the attendant safety concerns for the may obtain the document at either public’s health, it is important to DEPARTMENT OF HEALTH AND http://www.fda.gov/Drugs/ discuss the causes of these shortages, as HUMAN SERVICES GuidanceCompliance well as strategies to address them. This RegulatoryInformation/Guidances/ public workshop focused on collecting Food and Drug Administration information and gaining perspective default.htm or http:// [Docket No. FDA–2011–N–0002] www.regulations.gov. from professional societies, patient Dated: September 26, 2011. advocates, industry, consumer groups, Food Defense Workshop; Public health care professionals, researchers, Leslie Kux, Workshop and other interested persons. The topics Acting Assistant Commissioner for Policy. discussed: How CDER becomes aware of AGENCY: Food and Drug Administration, [FR Doc. 2011–25118 Filed 9–28–11; 8:45 am] drug shortages, Reasons behind drug HHS. BILLING CODE 4160–01–P shortages, Determination of medically ACTION: Notice of public workshop. necessary products, CGMP (current good manufacturing practice) and other The Food and Drug Administration DEPARTMENT OF HEALTH AND compliance issues, Actions taken when (FDA), Office of Regulatory Affairs, HUMAN SERVICES a drug shortage occurs, and Outcomes of Southwest Regional Office (SWRO), in cosponsorship with Oklahoma State Food and Drug Administration mitigated drug shortages. Additional discussions included the public health University, Robert M. Kerr Food & [Docket No. FDA–2011–N–0690] impact of drug shortages and what Agricultural Products Center (FAPC), is measures can be taken to prevent the announcing a public workshop entitled Center for Drug Evaluation and occurrence of a drug shortage. The ‘‘Food Defense Workshop.’’ This public Research, Approach to Addressing Agency encouraged professional workshop is intended to provide Drug Shortage; Public Workshop; societies, patient advocates, industry, information about food defense as it Request for Comments consumer groups, health care relates to food facilities such as farms, AGENCY: Food and Drug Administration, professionals, researchers, and other manufacturers, processors, distributors, HHS. interested persons to attend this public retailers, and restaurants. ACTION: Notice. workshop. Date and Time: This public workshop will be held on November 2, 2011, from SUMMARY: The Food and Drug II. Transcripts 8 a.m. to 5 p.m. Administration (FDA) is opening a Please be advised that as soon as a Location: The public workshop will comment period for the notice of public transcript is available, it will be be held at the Robert M. Kerr Food & workshop published in the Federal accessible at http:// Agricultural Products Center, Oklahoma Register of July 28, 2011 (76 FR 45268). www.regulations.gov, approximately 45 State University, 148 FAPC, Stillwater, In that notice, FDA announced a public days after the public workshop. It may OK 74078–6055. workshop regarding the approach of the be viewed at the Division of Dockets Contact: David Arvelo, Office of Center for Drug Evaluation and Research Management (HFA–305), Food and Drug Regulatory Affairs, Food and Drug to addressing drug shortages. FDA is Administration, 5630 Fishers Lane, Rm. Administration, Southwest Regional opening a comment period in light of 1061, Rockville, MD. A transcript will Office, 4040 North Central Expressway, public interest in this topic and in order also be available in either hardcopy or suite 900, Dallas, TX 75204, 214–253–

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4952, FAX: 214–253–4970, e-mail: Small Business Representative Program, DEPARTMENT OF HEALTH AND [email protected]. which are in part to respond to industry HUMAN SERVICES For information on accommodation inquiries, develop educational options, contact conference coordinator materials, and sponsor workshops and Food and Drug Administration Karen Smith or Andrea Graves at the conferences to provide firms, [Docket No. FDA–2011–N–0002] Robert M. Kerr Food & Agricultural particularly small businesses, with Products Center, Oklahoma State firsthand working knowledge of FDA’s Request for Notification From Industry University, 148 FAPC, Stillwater, OK regulations and compliance policies. Organizations Interested in 74078–6055, 405–744–6071, FAX: 405– This workshop is also consistent with Participating in the Selection Process 744–6313, or e-mail: the Small Business Regulatory and Request for Nominations for a [email protected] or Enforcement Fairness Act of 1996 (Pub. Nonvoting Industry Representative on [email protected]. More L. 104–121), as outreach activities by the Vaccines and Biological Products information is also available online at government agencies to small Advisory Committee http://www.fapc.biz/fooddefense.html. businesses. (FDA has verified the Web site address, AGENCY: Food and Drug Administration, but FDA is not responsible for any The goal of this public workshop is to HHS. subsequent changes to the Web site after present information that will enable ACTION: Notice. this document publishes in the Federal regulated industry to better comply with Register.) the regulations authorized by the Public SUMMARY: The Food and Drug Registration: You are encouraged to Health Security and Bioterrorism Administration (FDA) is requesting that register by October 21, 2011. The Preparedness and Response Act of 2002 any industry organizations interested in participating in the selection of a workshop has a $150 registration fee to (the Bioterrorism Act) and to better nonvoting industry representative to cover the cost of facilities, materials, understand FDA’s food defense serve on the Vaccines and Related speakers, and breaks. Seats are limited; guidance documents, especially in light please submit your registration as soon Biological Products Advisory of growing concerns about food Committee for the Center for Biologics as possible. The workshop will be filled protection. Information that FDA in order of receipt of registration. Those Evaluation and Research (CBER) notify presents will be based on Agency FDA in writing. FDA is also requesting accepted into the workshop will receive position as articulated through confirmation. Registration will close nominations for a nonvoting industry regulation, guidance, and information representative to serve the Vaccines and after the workshop is filled. Registration previously made available to the public. at the site is not guaranteed but may be Related Biological Products Advisory Topics to be discussed at the workshop possible on a space available basis on Committee. A nominee may either be (both by FDA and non-FDA speakers) the day of the public workshop self-nominated or nominated by an include: (1) Food defense awareness and beginning at 8 a.m. The cost of organization to serve as a nonvoting registration at the site is $200 payable to definitions, (2) FDA food defense tools industry representative. Nomination FAPC. There is no registration fee for such as ALERT and Employees FIRST, will be accepted for current vacancies FDA employees. (3) regulations issued under the effective with this notice. If you need special accommodations Bioterrorism Act, (4) food defense DATES: Any industry organization due to a disability, please contact Karen guidance documents, (5) investigating interested in participating in the Smith (see Contact) at least 7 days in food-related incidents effectively, (6) selection of an appropriate nonvoting advance. physical plant security, (7) crisis member to represent industry interests Registration Form Instructions: To management, and other related topics. must send a letter stating that interest to register, please complete the online For more information, please visit the FDA by October 31, 2011, for the registration form at http://www.fapc.biz/ http://www.fapc.biz/fooddefense.html. vacancy listed in this document. fooddefense.html. FDA expects that participation in this Concurrently, nomination materials for Transcripts: Transcripts of the public public workshop will provide regulated prospective candidates should be sent to workshop will not be available due to industry with greater understanding of FDA by October 31, 2011. the format of this workshop. Course the Agency’s regulatory and policy ADDRESSES: All letters of interest and handouts may be requested after the perspectives on food protection, nominations should be submitted in date of the public workshop through the increase compliance with FDA writing to Donald Jehn (see FOR FURTHER contact persons (see Contact) at cost regulations, and heighten food defense INFORMATION CONTACT). plus shipping. awareness. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: Donald Jehn, Center for Biologics This Dated: September 23, 2011. public workshop is being held in Evaluation and Research (HFM–71), response to the large volume of food Leslie Kux, Food and Drug Administration, 1401 defense inquiries from food Acting Assistant Commissioner for Policy. Rockville Pike, Rockville, MD 20852– manufacturers originating from the area [FR Doc. 2011–25114 Filed 9–28–11; 8:45 am] 1448, 301–827–0314, FAX: 301–827– covered by the FDA Dallas District BILLING CODE 4160–01–P 0294, e-mail: [email protected]. Office. The SWRO presents this SUPPLEMENTARY INFORMATION: The workshop to help achieve objectives set Agency intends to add a nonvoting forth in section 406 of the Food and industry representative on the CBER Drug Administration Modernization Act Advisory Committee. of 1997 (21 U.S.C. 393), which include working closely with stakeholders and I. Vaccines and Related Biological maximizing the availability and clarity Products Advisory Committee of information to stakeholders and the The Vaccines and Related Biological public. This is consistent with the Products Advisory Committee (the purposes of the Southwest Regional Committee) advises the Commissioner

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of Food and Drugs (the Commissioner) U.S.C. app. 2) and 21 CFR part 14, DEPARTMENT OF HEALTH AND or designee in discharging relating to the advisory committees. HUMAN SERVICES responsibilities as they relate to the Dated: September 23, 2011. regulation of vaccines and related National Institutes of Health biological products. Members are asked Jill Hartzler Warner, to provide their expert scientific and Acting Associate Commissioner for Special Center for Scientific Review; Notice of technical advice to FDA to help make Medical Programs. Closed Meetings sound decisions on the safety, [FR Doc. 2011–25120 Filed 9–28–11; 8:45 am] Pursuant to section 10(d) of the effectiveness, and appropriate use, of BILLING CODE 4160–01–P Federal Advisory Committee Act, as vaccines and related biological amended (5 U.S.C. App.), notice is products. hereby given of the following meetings. DEPARTMENT OF HEALTH AND II. Selection Procedure The meetings will be closed to the HUMAN SERVICES public in accordance with the Any industry organization interested provisions set forth in sections in participating in the selection of an National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., appropriate nonvoting member to as amended. The grant applications and National Institute of Diabetes and represent industry interests should send the discussions could disclose Digestive and Kidney Diseases Notice a letter stating that interest to the FDA confidential trade secrets or commercial FOR FURTHER INFORMATION of Closed Meeting contact (see property such as patentable material, CONTACT and DATES). Within the and personal information concerning subsequent 30 days, FDA will send a Pursuant to section 10(d) of the individuals associated with the grant letter to each organization that has Federal Advisory Committee Act, as applications, the disclosure of which expressed an interest, attaching a amended (5 U.S.C. App.), notice is would constitute a clearly unwarranted complete list of all such organizations; hereby given of the following meeting. invasion of personal privacy. and a list of all nominees along with The meeting will be closed to the Name of Committee: Center for Scientific their current resumes. The letter will public in accordance with the also state that it is the responsibility of Review Special Emphasis Panel, Surgical provisions set forth in sections the interested organizations to confer Sciences and Bioengineering. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Date: October 20, 2011. with one another and to select a as amended. The grant applications and Time: 12 p.m. to 6 p.m. candidate, within 60 days after the the discussions could disclose Agenda: To review and evaluate grant receipt of the FDA letter, to serve as the confidential trade secrets or commercial applications. nonvoting member to represent industry Place: National Institutes of Health, 6701 property such as patentable material, interests for the Committee. The Rockledge Drive, Bethesda, MD 20892 and personal information concerning interested organizations are not bound (Virtual Meeting). by the list of nominees in selecting a individuals associated with the grant Contact Person: Malgorzata Klosek, PhD., applications, the disclosure of which Scientific Review Officer, Center for candidate. However, if no individual is Scientific Review, National Institutes of selected within 60 days, the would constitute a clearly unwarranted invasion of personal privacy. Health, 6701 Rockledge Drive, Room 4188, Commissioner will select the nonvoting MSC 7849, Bethesda, MD 20892, (301) 435– member to represent industry interests. Name of Committee: 2211, [email protected]. National Institute of Diabetes and Digestive III. Application Procedure Name of Committee: Center for Scientific and Kidney Diseases Special Emphasis Panel; Review Special Emphasis Panel, Small Individuals may self-nominate and/or Digestive Diseases Core Centers. Business: Diabetes, Obesity and Reproductive an organization may nominate one or Date: December 2, 2011. Sciences. more individuals to serve as a nonvoting Time: 8 a.m. to 5:30 p.m. Date: October 25–26, 2011. industry representative (for the roles Agenda: To review and evaluate grant Time: 11:30 a.m. to 2 p.m. Agenda: To review and evaluate grant specified in this document). applications. applications. Nominations must include a current Place: Bethesda Marriott Suites, 6711 Place: National Institutes of Health, 6701 resume or curriculum vitae of the Democracy Boulevard, Bethesda, MD 20817. Rockledge Drive, Bethesda, MD 20892 nominee including current business Contact Person: (Virtual Meeting). address and/or home address, telephone Maria E. Davila-Bloom, PhD, Scientific Contact Person: Krish Krishnan, PhD., number, email address if available, and Review Officer, Review Branch, DEA, Scientific Review Officer, Center for the role for which the individual is NIDDK, National Institutes Of Health, Room Scientific Review, National Institutes of being nominated. FDA will forward all 758, 6707 Democracy Boulevard, Bethesda, Health, 6701 Rockledge Drive, Room 6164, MD 20892–5452, (301) 594–7637, davila- MSC 7892, Bethesda, MD 20892, (301) 435– nominations to the organizations 1041, [email protected]. expressing interest in participating in [email protected]. Name of Committee: Center for Scientific the selection process for the committee. (Catalogue of Federal Domestic Assistance Review Special Emphasis Panel, Fellowship: (Persons who nominate themselves as Program Nos. 93.847, Diabetes, Genes, Genomes, and Genetics. nonvoting industry representatives will Endocrinology and Metabolic Research; Date: October 26, 2011. not participate in the selection process). 93.848, Digestive Diseases and Nutrition Time: 11 a.m. to 5 p.m. FDA has a special interest in ensuring Research; 93.849, Kidney Diseases, Urology Agenda: To review and evaluate grant that women, minority groups, and Hematology Research, National Institutes applications. individuals with physical disabilities, of Health, HHS) Place: National Institutes of Health, 6701 Rockledge Drive, Bethesda, MD 20892 and small businesses are adequately Dated: September 23, 2011. represented on its advisory committees, (Telephone Conference Call). Jennifer S. Spaeth, Contact Person: Allen Barlow Richon, and therefore, encourages nominations PhD., Scientific Review Officer, Center for for appropriately qualified candidates Director, Office of Federal Advisory Committee Policy. Scientific Review, National Institutes of from these groups. Health, 6701 Rockledge Drive, Room 6184, This notice is issued under the [FR Doc. 2011–25095 Filed 9–28–11; 8:45 am] MSC 7892, Bethesda, MD 20892, 301–435– Federal Advisory Committee Act (5 BILLING CODE 4140–01–P 1024, [email protected].

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Name of Committee: Center for Scientific Name of Committee: National Institute of Scientific Review, National Institutes of Review Special Emphasis Panel, Skeletal Mental Health Special Emphasis Panel; Health, 6701 Rockledge Drive, Room 3112, Muscle, Bone, Oral and Skin Sciences. Fellowships and Dissertation Grants. MSC 7808, Bethesda, MD 20892, 301–496– Date: October 31, 2011. Date: October 25, 2011. 0726, [email protected]. Time: 8:30 a.m. to 5:30 p.m. Time: 12 p.m. to 3 p.m. This notice is being published less than 15 Agenda: To review and evaluate grant Agenda: To review and evaluate grant days prior to the meeting due to the timing applications. applications. limitations imposed by the review and Place: Embassy Suites Chicago—O’Hare/ Place: National Institutes of Health, funding cycle. Rosemont, 5500 North River Road, Rosemont, Neuroscience Center, 6001 Executive (Catalogue of Federal Domestic Assistance IL 60018. Boulevard, Rockville, MD 20852 (Telephone Program Nos. 93.306, Comparative Medicine; Contact Person: Rajiv Kumar, PhD., Chief, Conference Call). 93.333, Clinical Research, 93.306, 93.333, MOSS IRG, Center for Scientific Review, Contact Person: David W. Miller, PhD, 93.337, 93.393–93.396, 93.837–93.844, National Institutes of Health, 6701 Rockledge Scientific Review Officer, Division of 93.846–93.878, 93.892, 93.893, National Drive, Room 4216, MSC 7802, Bethesda, MD Extramural Activities, National Institute of Institutes of Health, HHS) 20892, 301–435–1212, [email protected]. Mental Health, NIH, Neuroscience Center, Dated: September 23, 2011. (Catalogue of Federal Domestic Assistance 6001 Executive Blvd., Room 6140, MSC 9608, Program Nos. 93.306, Comparative Medicine; Bethesda, MD 20892–9608, 301–443–9734, Jennifer S. Spaeth, 93.333, Clinical Research, 93.306, 93.333, [email protected]. Director, Office of Federal Advisory 93.337, 93.393–93.396, 93.837–93.844, (Catalogue of Federal Domestic Assistance Committee Policy. 93.846–93.878, 93.892, 93.893, National Program Nos. 93.242, Mental Health Research [FR Doc. 2011–25103 Filed 9–28–11; 8:45 am] Institutes of Health, HHS) Grants; 93.281, Scientist Development BILLING CODE 4140–01–P Award, Scientist Development Award for Dated: September 23, 2011. Clinicians, and Research Scientist Award; Jennifer S. Spaeth, 93.282, Mental Health National Research DEPARTMENT OF HEALTH AND Director, Office of Federal Advisory Service Awards for Research Training, Committee Policy. National Institutes of Health, HHS) HUMAN SERVICES [FR Doc. 2011–25153 Filed 9–28–11; 8:45 am] Dated: September 22, 2011. National Institutes of Health BILLING CODE 4140–01–P Jennifer S. Spaeth, Director, Office of Federal Advisory National Institute of Nursing Research; Committee Policy. Notice of Closed Meeting DEPARTMENT OF HEALTH AND HUMAN SERVICES [FR Doc. 2011–25104 Filed 9–28–11; 8:45 am] Pursuant to section 10(d) of the BILLING CODE 4140–01–P Federal Advisory Committee Act, as National Institutes of Health amended (5 U.S.C. App.), notice is hereby given of the following meeting. National Institute of Mental Health DEPARTMENT OF HEALTH AND Notice of Closed Meetings HUMAN SERVICES The meeting will be closed to the public in accordance with the Pursuant to section 10(d) of the National Institutes of Health provisions set forth in sections Federal Advisory Committee Act, as 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., amended (5 U.S.C. App.), notice is Center for Scientific Review; Notice of as amended. The grant applications and hereby given of the following meetings. Closed Meeting the discussions could disclose The meetings will be closed to the confidential trade secrets or commercial Pursuant to section 10(d) of the public in accordance with the property such as patentable material, Federal Advisory Committee Act, as provisions set forth in sections and personal information concerning amended (5 U.S.C. App.), notice is 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., individuals associated with the grant as amended. The grant applications and hereby given of the following meeting. The meeting will be closed to the applications, the disclosure of which the discussions could disclose public in accordance with the would constitute a clearly unwarranted confidential trade secrets or commercial provisions set forth in sections invasion of personal privacy. property such as patentable material, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: National Institute of and personal information concerning as amended. The grant applications and Nursing Research Initial Review Group; individuals associated with the grant the discussions could disclose NRRC 52 October 20, 2011 Meeting. applications, the disclosure of which confidential trade secrets or commercial Date: October 20, 2011. would constitute a clearly unwarranted Time: 8 a.m. to 6 p.m. property such as patentable material, invasion of personal privacy. Agenda: To review and evaluate grant and personal information concerning applications. Name of Committee: National Institute of individuals associated with the grant Place: Bethesda Marriott Suites, 6711 Mental Health Special Emphasis Panel; NIH applications, the disclosure of which Democracy Boulevard, Bethesda, MD 20817. Summer Research Experience Programs. would constitute a clearly unwarranted Contact Person: Weiqun Li, MD, Scientific Date: October 20, 2011. invasion of personal privacy. Review Officer, National Institute of Nursing Time: 12 p.m. to 3 p.m. Research, National Institutes of Health, 6701 Agenda: To review and evaluate grant Name of Committee: Center for Scientific Democracy Blvd., Ste. 710, Bethesda, MD applications. Review Special Emphasis Panel; Member 20892, (301) 594–5966, [email protected]. Place: National Institutes of Health, Conflict: Risk, Prevention and Health Neuroscience Center, 6001 Executive Behavior. (Catalogue of Federal Domestic Assistance Boulevard, Rockville, MD 20852 (Telephone Date: October 12–13, 2011. Program Nos. 93.361, Nursing Research, Conference Call). Time: 9 a.m. to 4 p.m. National Institutes of Health, HHS) Contact Person: David M. Armstrong, PhD, Agenda: To review and evaluate grant Dated: September 23, 2011. Scientific Review Officer, Division of applications. Jennifer S. Spaeth, Extramural Activities, National Institute of Place: National Institutes of Health, 6701 Director, Office of Federal Advisory Mental Health, NIH, Neuroscience Center/ Rockledge Drive, Bethesda, MD 20892 Committee Policy. Room 6138/MSC 9608, 6001 Executive (Virtual Meeting). Boulevard, Bethesda, MD 20892–9608, 301– Contact Person: Kristen Prentice, PhD, [FR Doc. 2011–25101 Filed 9–28–11; 8:45 am] 443–3534, [email protected]. Scientific Review Officer, Center for BILLING CODE 4140–01–P

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DEPARTMENT OF HEALTH AND Name of Committee: Center for Scientific Place: Renaissance Washington, DC HUMAN SERVICES Review Special Emphasis Panel, Member Dupont Circle Hotel, 1143 New Hampshire Conflict: Skeletal Biology. Avenue, NW., Washington, DC 20037. National Institutes of Health Date: October 25–26, 2011. Contact Person: Paek-Gyu Lee, Ph.D., Time: 8:30 a.m. to 5 p.m. Scientific Review Officer, Center for Center for Scientific Review; Notice of Agenda: To review and evaluate grant Scientific Review, National Institutes of Closed Meetings applications. Health, 6701 Rockledge Drive, Room 5196, Contact Person: National Institutes of MSC 7812, Bethesda, MD 20892, (301) 613– Pursuant to section 10(d) of the Health, 6701 Rockledge Drive, Bethesda, MD 2064, [email protected]. Federal Advisory Committee Act, as 20892 (Virtual Meeting). Name of Committee: Center for Scientific amended (5 U.S.C. App.), notice is Contact Person: Aftab A Ansari, Ph.D., Review Special Emphasis Panel, Member hereby given of the following meetings. Scientific Review Officer, Center for Conflict: Molecular Genetics. The meetings will be closed to the Scientific Review, National Institutes of Date: October 27, 2011. public in accordance with the Health, 6701 Rockledge Drive, Room 4108, Time: 1 p.m. to 4 p.m. Agenda: To review and evaluate grant provisions set forth in sections MSC 7814, Bethesda, MD 20892, 301–237– 9931, [email protected]. applications. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Place: National Institutes of Health, 6701 as amended. The grant applications and Name of Committee: Center for Scientific Rockledge Drive, Bethesda, MD 20892 the discussions could disclose Review Special Emphasis Panel, PAR–11– (Telephone Conference Call). confidential trade secrets or commercial 137: Model Systems for Fragile X Pre- Contact Person: Ronald Adkins, Ph.D., Mutation and Primary Ovarian Insufficiency. property such as patentable material, Scientific Review Officer, Center for Date: October 26, 2011. Scientific Review, National Institutes of and personal information concerning Time: 1 p.m. to 5 p.m. individuals associated with the grant Health, 6701 Rockledge Drive, Room 2206, Agenda: To review and evaluate grant MSC 7890, Bethesda, MD 20892, 301–495– applications, the disclosure of which applications. 4511, [email protected]. would constitute a clearly unwarranted Place: National Institutes of Health, 6701 Name of Committee: Center for Scientific Rockledge Drive, Bethesda, MD 20892 invasion of personal privacy. Review Special Emphasis Panel, Advanced Name of Committee: Population Sciences (Telephone Conference Call). Neural Prosthetics. and Epidemiology Integrated Review Group, Contact Person: Dianne Hardy, Ph.D., Date: October 27, 2011. Social Sciences and Population Studies Scientific Review Officer, Center for Time: 5 p.m. to 6 p.m. Study Section. Scientific Review, National Institutes of Agenda: To review and evaluate grant Date: October 20, 2011. Health, 6701 Rockledge Drive, Room 6175, applications. Time: 8:30 a.m. to 6 p.m. Bethesda, MD 20892, 301–435–1154, Place: Intercontinental Harbor Court Agenda: To review and evaluate grant [email protected]. Baltimore, 550 Light Street, Baltimore, MD applications. Name of Committee: Center for Scientific 21202. Place: Avenue Hotel Chicago, 160 E. Huron Review Special Emphasis Panel, Contact Person: Keith Crutcher, Ph.D., Street, Chicago, IL 60611. Fellowships: Brain Disorders and Related Scientific Review Officer, Center for Contact Person: Valerie Durrant, Ph.D., Neuroscience. Scientific Review, National Institutes of Scientific Review Officer, Center for Date: October 27–28, 2011. Health, 6701 Rockledge Drive, Room 5207, Scientific Review, National Institutes of Time: 8 a.m. to 5 p.m. MSC 7846, Bethesda, MD 20892, 301–435– Health, 6701 Rockledge Drive, Room 3148, Agenda: To review and evaluate grant 1278, [email protected]. MSC 7770, Bethesda, MD 20892, (301) 827– applications. 6390, [email protected]. (Catalogue of Federal Domestic Assistance Place: Westin St. Francis Hotel, 335 Powell Program Nos. 93.306, Comparative Medicine; Name of Committee: Healthcare Delivery Street, San Francisco, CA 94102. 93.333, Clinical Research, 93.306, 93.333, and Methodologies Integrated Review Group, Contact Person: Vilen A Movsesyan, Ph.D., 93.337, 93.393–93.396, 93.837–93.844, Biostatistical Methods and Research Design Scientific Review Officer, Center for 93.846–93.878, 93.892, 93.893, National Study Section. Scientific Review, National Institutes of Institutes of Health, HHS) Date: October 21, 2011. Health, 6701 Rockledge Drive, Room 4040M, Time: 8 a.m. to 5 p.m. MSC 7806, Bethesda, MD 20892, 301–402– Dated: September 23, 2011. Agenda: To review and evaluate grant 7278, [email protected]. Jennifer S. Spaeth, applications. Name of Committee: Center for Scientific Director, Office of Federal Advisory Place: Holiday Inn, 301 West Lombard Review Special Emphasis Panel, Small Committee Policy. Street, Baltimore, MD 21201. Business: Clinical Neurophysiology, Devices, Contact Person: Tomas Drgon, Ph.D., [FR Doc. 2011–25100 Filed 9–28–11; 8:45 am] Auditory Devices and Neuroprosthesis. Scientific Review Officer, Center for BILLING CODE 4140–01–P Date: October 27, 2011. Scientific Review, National Institutes of Time: 8 a.m. to 5 p.m. Health, 6701 Rockledge Drive, Room 3152, Agenda: To review and evaluate grant MSC 7770, Bethesda, MD 20892, 301–435– DEPARTMENT OF HEALTH AND 1017, [email protected]. applications. Place: Intercontinental Harbor Court HUMAN SERVICES Name of Committee: Center for Scientific Baltimore, 550 Light Street, Baltimore, MD Review Special Emphasis Panel, Small 21202. National Institutes of Health Business: Dermatology, Rheumatology and Contact Person: Keith Crutcher, Ph.D., Inflammation. Scientific Review Officer, Center for National Institute of Allergy and Date: October 24, 2011. Scientific Review, National Institutes of Infectious Diseases Notice of Closed Time: 8 a.m. to 4:30 p.m. Health, 6701 Rockledge Drive, Room 5207, Meetings Agenda: To review and evaluate grant applications. MSC 7846, Bethesda, MD 20892, 301–435– 1278. [email protected]. Pursuant to section 10(d) of the Place: Bethesda North Marriott Hotel & Federal Advisory Committee Act, as Conference Center, 5701 Marinelli Road, Name of Committee: Center for Scientific amended (5 U.S.C. App.), notice is Bethesda, MD 20852. Review Special Emphasis Panel, Fellowships: Biophysical and Physiological hereby given of the following meetings. Contact Person: Aruna K Behera, Ph.D., The meetings will be closed to the Scientific Review Officer, Center for Neuroscience. Scientific Review, National Institutes of Date: October 27–28, 2011. public in accordance with the Health, 6701 Rockledge Drive, Room 4211, Time: 8 a.m. to 5 p.m. provisions set forth in sections MSC 7814, Bethesda, MD 20892, 301–435– Agenda: To review and evaluate grant 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 6809, [email protected]. applications. as amended. The grant applications and

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the discussions could disclose ACTION: Notice. rhesus reassortant rotavirus confidential trade secrets or commercial compositions were made which when property such as patentable material, SUMMARY: This is notice, in accordance administered during the first 7 to about and personal information concerning with 35 U.S.C. 209(c)(1) and 37 CFR 10 days of life, provided a composition individuals associated with the grant 404.7(a)(1)(i), that the National which was non-reactogenic followed by applications, the disclosure of which Institutes of Health, Department of booster immunizations at 16 to 18 would constitute a clearly unwarranted Health and Human Services, is weeks or 14 to 20 weeks, up to 1 year invasion of personal privacy. contemplating the grant of an exclusive of age. The immune response induced patent license to practice the inventions by the initial neonatal administration of Name of Committee: National Institute of embodied in U.S. Provisional Patent Allergy and Infectious Diseases Special the live rotavirus vaccine composition Emphasis Panel; ‘‘Combined Multipurpose Application No. 60/178,689, filed protects the infant from the Prevention Strategies for Sexual and January 28, 2000 [HHS Ref. No. E–088– reactogenicity of the composition when Reproductive Health’’. 2000/0–US–01], now expired; PCT administered as a second vaccine dose Date: October 18, 2011. Patent Application No. PCT/US01/ at or after 2 months of age. Time: 12:30 p.m. to 5 p.m. 02686 [HHS Ref. No. E–088–2000/0– Administration of the immunogenic Agenda: To review and evaluate grant PCT–02] filed January 26, 2001, which composition also is expected to ablate or applications. published as WO/2001/54718 on August Place: National Institutes of Health, 6700B significantly diminish the increase in 2, 2001, now expired; U.S. Patent No. the excess of intussusception observed 3 Rockledge Drive, Bethesda, MD 20817 7,431,931 [HHS Ref. No. E–088–2000/0– (Telephone Conference Call). to 7 days following administration of Contact Person: Jane K. Battles, PhD, US–06]; Australian Patent No. 784344 the initial dose of rotavirus vaccine at Scientific Review Officer, Scientific Review [HHS Ref. No. E–088–2000/0–AU–04]; about 2 to 4 months. Program, Division of Extramural Activities, German Patent No. 60141681.308 [HHS The prospective exclusive license will National Institutes of Health/NIAID, 6700B Ref. No. E–088–2000/0–DE–08]; French be royalty bearing and will comply with Rockledge Drive, Room 3147, Bethesda, MD Patent No. 1251869 [HHS Ref. No. E– the terms and conditions of 35 U.S.C. 20892–7616, 301–451–2744, 088–2000/0–FR–09]; United Kingdom 209 and 37 CFR 404.7. The prospective [email protected]. Patent No. 1251869 [HHS Ref. No. E– exclusive license may be granted unless Name of Committee: National Institute of 088–2000/0–GB–10]; and Canadian within thirty (30) days from the date of Allergy and Infectious Diseases Special Patent Application No. 2398428 [HHS Emphasis Panel; ‘‘Combined Multipurpose this published notice, the NIH receives Ref. No. E–088–2000/0–CA–05], entitled written evidence and argument that Prevention Strategies for Sexual and ‘‘Compositions and Method for Reproductive Health’’. establishes that the grant of the license Date: October 31, 2011. Preventing Reactogenicity Associated would not be consistent with the Time: 9 a.m. to 12 p.m. with Administration of Immunogenic requirements of 35 U.S.C. 209 and 37 Agenda: To review and evaluate grant Live Rotavirus Compositions,’’ and all CFR 404.7. applications. continuing applications to International Applications for a license in the field Place: National Institutes of Health, 6700B Medica Foundation, having a place of of use filed in response to this notice Rockledge Drive, Bethesda, MD 20817 business in Rochester, Minnesota. The will be treated as objections to the grant (Telephone Conference Call). patent rights in these inventions have of the contemplated exclusive license. Contact Person: Jane K. Battles, PhD, been assigned to the United States of Scientific Review Officer, Scientific Review Comments and objections submitted to America. this notice will not be made available Program, Division of Extramural Activities, The prospective exclusive license National Institutes of Health/NIAID, 6700B for public inspection and, to the extent Rockledge Drive, Room 3147, Bethesda, MD territory may be ‘‘worldwide’’, and the permitted by law, will not be released 20892–7616, 301–451–2744, field of use may be limited to ‘‘rhesus- under the Freedom of Information Act, [email protected]. based rotavirus therapeutic and/or 5 U.S.C. 552. prophylactic vaccines.’’ (Catalogue of Federal Domestic Assistance Dated: September 22, 2011. Program Nos. 93.855, Allergy, Immunology, DATES: Only written comments and/or and Transplantation Research; 93.856, applications for a license which are Richard U. Rodriguez, Microbiology and Infectious Diseases received by the NIH Office of Director, Division of Technology Development Research, National Institutes of Health, HHS) Technology Transfer on or before and Transfer, Office of Technology Transfer, National Institutes of Health. Dated: September 23, 2011. October 31, 2011 will be considered. [FR Doc. 2011–25098 Filed 9–28–11; 8:45 am] Jennifer S. Spaeth, ADDRESSES: Requests for copies of the BILLING CODE 4140–01–P Director, Office of Federal Advisory patent application, inquiries, comments, Committee Policy. and other materials relating to the [FR Doc. 2011–25096 Filed 9–28–11; 8:45 am] contemplated exclusive license should DEPARTMENT OF HOMELAND BILLING CODE 4140–01–P be directed to: Kevin W. Chang, Ph.D., SECURITY Senior Licensing and Patenting Manager, Office of Technology Transfer, Office of the Secretary DEPARTMENT OF HEALTH AND National Institutes of Health, 6011 HUMAN SERVICES Executive Boulevard, Suite 325, [Docket No. DHS–2011–0076] Rockville, MD 20852–3804; Telephone: National Institutes of Health (301) 435–5018; Facsimile: (301) 402– DHS Data Privacy and Integrity 0220; E-mail: [email protected]. Advisory Committee; Meeting Prospective Grant of Exclusive License: Compositions and Method for SUPPLEMENTARY INFORMATION: The AGENCY: Privacy Office, DHS. Preventing Reactogenicity Associated present invention provides ACTION: Notice. with Administration of Immunogenic compositions for making a medicament Live Rotavirus Compositions and methods for the administration of SUMMARY: On Wednesday, September vaccine compositions for protection 21, 2011, the DHS Privacy Office AGENCY: National Institutes of Health, against human rotaviral disease without announced in the Federal Register at 76 Public Health Service, HHS. significant reactogenicity. Human x FR 58524 that the Data Privacy and

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Integrity Advisory Committee would Dated: September 23, 2011. 202–372–2357, e-mail meet on October 5, 2011, in Arlington, Mary Ellen Callahan, [email protected]. If you have questions Virginia. This notice supplements that Chief Privacy Officer, Department of on viewing material in the docket, call original meeting notice. Homeland Security. Renee V. Wright, Program Manager, [FR Doc. 2011–25079 Filed 9–28–11; 8:45 am] Docket Operations, telephone 202–366– DATES: The DHS Data Privacy and BILLING CODE 9110–9L–P 9826. Integrity Advisory Committee will meet SUPPLEMENTARY INFORMATION: on Wednesday, October 5, 2011, from 1 p.m. to 5 p.m. Please note that the DEPARTMENT OF HOMELAND Public Participation meeting may end early if the Committee SECURITY You may submit comments and has completed its business. related material regarding whether to Coast Guard cancel the Able Seaman-Mobile SUPPLEMENTARY INFORMATION: Notice of [Docket No. USCG–2011–0662] Offshore Units (AB–MOU) endorsement. this meeting is given under the Federal All comments received will be posted, Advisory Committee Act, 5 U.S.C. App., Amendment of Marine Safety Manual, without change, to http:// which requires that notices of meetings Volume III www.regulations.gov and will include of advisory committees be announced in any personal information you have the Federal Register 15 days prior to the AGENCY: Coast Guard, DHS. provided. meeting date. A notice of the meeting of ACTION: Notice of proposed policy Submitting comments: If you submit a the Board was published in the Federal change and request for comments. comment, please include the docket Register on September 21, 2011, 14 days number for this notice (USCG–2011– prior to the meeting, due to the SUMMARY: The Coast Guard is 0662) and provide a reason for each mistaken delivery of the notice to considering cancelling its policy suggestion or recommendation. You another Federal agency rather than to concerning the issuance of Merchant may submit your comments and the Federal Register. The other Federal Mariner Credentials endorsed as Able material online or by fax, mail or hand agency received the notice, and the Seaman-Mobile Offshore Units. The delivery, but please use only one of Federal Register office received that policy is currently found in Chapter 16 these means. We recommend that you agency’s material. By the time the error of the Marine Safety Manual, Volume include your name and a mailing III. The Coast Guard will accept was noted by each office and DHS was address, an e-mail address, or a comments from the public on whether contacted, DHS could no longer meet telephone number in the body of your to cancel the policy and on any impacts document so that we can contact you if the 15 day requirement. During the the cancellation may have. we have questions regarding your meeting the Committee will discuss DATES: submission. draft guidance to the Department on Comments and related material must either be submitted to our online To submit your comment online, go to privacy protections for information docket via http://www.regulations.gov http://www.regulations.gov and click on sharing within DHS. The draft guidance on or before October 31, 2011 or reach the ‘‘submit a comment’’ box, which will be posted on the Committee’s web the Docket Management Facility by that will then become highlighted in blue. In site (http://www.dhs.gov/privacy) in date. the ‘‘Document Type’’ drop down menu, advance of the meeting. If you wish to select ‘‘Notices’’ and insert ‘‘USCG– ADDRESSES: You may submit comments submit comments on the draft guidance, 2011–0662’’ in the ‘‘Keyword’’ box. identified by docket number USCG– you may do so in advance of the Click ‘‘Search,’’ and then click on the 2011–0662 using any one of the balloon shape in the ‘‘Actions’’ column. meeting by forwarding them to the following methods: If you submit your comments by mail or Committee at the locations listed under (1) Federal eRulemaking Portal: hand delivery, submit them in an ADDRESSES in the original notice. Please http://www.regulations.gov. unbound format, no larger than 81⁄2; by include the Docket Number (DHS 2011– (2) Fax: 202–493–2251. 11 inches, suitable for copying and 0076) in your comments. A public (3) Mail: Docket Management Facility electronic filing. If you submit comment period will be held during the (M–30), U.S. Department of comments by mail and would like to meeting from 4 p.m. to 4:30 p.m., and Transportation, West Building Ground know that they reached the Facility, speakers are requested to limit their Floor, Room W12–140, 1200 New Jersey please enclose a stamped, self-addressed comments to 3 minutes. If you would Avenue, SE., Washington, DC 20590– postcard or envelope. like to address the Committee at the 0001. We will consider all comments and (4) Hand delivery: Same as mail meeting, we request that you register in material received during the comment address above, between 9 a.m. and advance by contacting Martha K. period. Landesberg at the address listed under 5 p.m., Monday through Friday, except Viewing the comments: To view the ADDRESSES in the original notice or sign Federal holidays. The telephone number comments, go to http:// up at the registration desk on the day of is 202–366–9329. www.regulations.gov and click on the the meeting. To avoid duplication, please use only ‘‘Read Comments’’ box, which will then one of these four methods. See the become highlighted in blue. In the FOR FURTHER INFORMATION CONTACT: ‘‘Public Participation and Request for Martha K. Landesberg, Executive ‘‘Keyword’’ box, insert ‘‘USCG–2011– Comments’’ portion of the 0662’’ and click ‘‘Search.’’ Click the Director, DHS Data Privacy and Integrity SUPPLEMENTARY INFORMATION section ‘‘Open Docket Folder’’ in the ‘‘Actions’’ Advisory Committee, Department of below for instructions on submitting column. If you do not have access to the Homeland Security, Washington, DC comments. internet, you may view the docket 20528, by telephone (703) 235–0780, by FOR FURTHER INFORMATION CONTACT: If online by visiting the Docket fax (703) 235–0442, or by e-mail to you have questions about this notice, Management Facility in Room W12–140 [email protected]. call or e-mail Luke B. Harden, Mariner on the ground floor of the Department Credentialing Program Policy Division of Transportation West Building, 1200 (CG–5434), U.S. Coast Guard, telephone New Jersey Avenue, SE., Washington,

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DC 20590, between 9 a.m. and 5 p.m., DEPARTMENT OF HOMELAND assistance to the extent allowable under the Monday through Friday, except Federal SECURITY Stafford Act. holidays. We have an agreement with The Federal Emergency Management the Department of Transportation to use Federal Emergency Management Agency (FEMA) hereby gives notice that the Docket Management Facility. Agency pursuant to the authority vested in the Privacy Act: Anyone can search the [Internal Agency Docket No. FEMA–3329– Administrator, Department of Homeland electronic form of comments received EM; Docket ID FEMA–2011–0001] Security, under Executive Order 12148, as amended, Donald L. Keldsen, of into any of our dockets by the name of Virginia; Emergency and Related FEMA is appointed to act as the Federal the individual submitting the comment Determinations Coordinating Officer for this declared (or signing the comment, if submitted emergency. AGENCY: Federal Emergency on behalf of an association, business, The following areas of the Management Agency, DHS. labor union, etc.). You may review a Commonwealth of Virginia have been Privacy Act system of records notice ACTION: Notice. designated as adversely affected by this regarding our public dockets in the SUMMARY: This is a notice of the declared emergency: January 17, 2008, issue of the Federal Presidential declaration of an Accomack, Northampton, Isle of Wight, Register (73 FR 3316). emergency for the Commonwealth of James City, Lancaster, Mathews, Middlesex, Background and Purpose Virginia (FEMA–3329–EM), dated Northumberland, Richmond, Westmoreland, August 26, 2011, and related and New Kent Counties and the independent Chapter 16 of Volume III of the determinations. cities of Chesapeake, Hampton, Newport Marine Safety Manual (MSM), Marine News, Norfolk, Poquoson, Portsmouth, DATES: Effective Date: August 26, 2011. Suffolk, Virginia Beach, and Williamsburg for Industry Personnel, COMDTINST FOR FURTHER INFORMATION CONTACT: emergency protective measures (Category B), M16000.8B, Qualified Ratings for Peggy Miller, Office of Response and including direct Federal assistance, under the Merchant Mariner’s Documents, permits Recovery, Federal Emergency Public Assistance program. the issuance of an AB–MOU Management Agency, 500 C Street, SW., The following Catalog of Federal Domestic endorsement on a mariner’s Merchant Washington, DC 20472, (202) 646–3886. Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Mariner Credential, Merchant Mariner SUPPLEMENTARY INFORMATION: Notice is License, or Merchant Mariner Community Disaster Loans; 97.031, Cora hereby given that, in a letter dated Brown Fund; 97.032, Crisis Counseling; Document. (The MSM can be found August 26, 2011, the President issued an 97.033, Disaster Legal Services; 97.034, online at: http://www.uscg.mil/ emergency declaration under the Disaster Unemployment Assistance (DUA); directives/cim/16000-16999/ authority of the Robert T. Stafford 97.046, Fire Management Assistance Grant; CIM_16000_8B.pdf.) This policy was Disaster Relief and Emergency 97.048, Disaster Housing Assistance to put in place in order to increase the Assistance Act, 42 U.S.C. 5121–5208 Individuals and Households in Presidentially number of mariners eligible to serve on Declared Disaster Areas; 97.049, (the Stafford Act), as follows: Presidentially Declared Disaster Assistance— mobile offshore units. I have determined that the emergency Disaster Housing Operations for Individuals The Coast Guard is considering conditions in certain areas of the and Households; 97.050, Presidentially whether to discontinue issuing Commonwealth of Virginia resulting from Declared Disaster Assistance to Individuals merchant mariner credentials endorsed Hurricane Irene beginning on August 26, and Households—Other Needs; 97.036, 2011, and continuing, are of sufficient Disaster Grants—Public Assistance as AB–MOU. Under the proposed severity and magnitude to warrant an (Presidentially Declared Disasters); 97.039, cancellation, mariners currently holding emergency declaration under the Robert T. Hazard Mitigation Grant. a credential endorsed as AB–MOU Stafford Disaster Relief and Emergency would be able to continue to serve Assistance Act, 42 U.S.C. 5121 et seq. (‘‘the W. Craig Fugate, under the authority of their existing Stafford Act’’). Therefore, I declare that such Administrator, Federal Emergency Management Agency. credential until that credential expires. an emergency exists in the Commonwealth of Virginia. Upon these mariners’ next renewal, the [FR Doc. 2011–25137 Filed 9–28–11; 8:45 am] You are authorized to provide appropriate BILLING CODE 9111–23–P AB–MOU endorsement would be assistance for required emergency measures, converted to one of the endorsements authorized under Title V of the Stafford Act, explicitly authorized by 46 U.S.C. to save lives and to protect property and DEPARTMENT OF HOMELAND public health and safety, and to lessen or 7306(b) and 46 CFR 12.05–1. As a SECURITY default, the endorsement would be avert the threat of a catastrophe in the designated areas. Specifically, you are converted to AB—Limited unless the authorized to provide assistance for Federal Emergency Management applicant’s training and experience emergency protective measures (Category B), Agency qualify the applicant for AB—Any including direct Federal assistance, under the [Internal Agency Docket No. FEMA–3328– Waters, Unlimited. Public Assistance program. This assistance EM; Docket ID FEMA–2011–0001] excludes regular time costs for subgrantees’ Authority regular employees. New York; Emergency and Related Consistent with the requirement that We issue this notice of cancellation Federal assistance is supplemental, any Determinations under the authority of 5 U.S.C. 552(a). Federal funds provided under the Stafford AGENCY: Federal Emergency Act for Public Assistance will be limited to Management Agency, DHS. Dated: September 16, 2011. 75 percent of the total eligible costs. In order James A. Watson, to provide Federal assistance, you are hereby ACTION: Notice. authorized to allocate from funds available Rear Admiral, U.S. Coast Guard, Director, SUMMARY: This is a notice of the Prevention Policy. for these purposes such amounts as you find necessary for Federal emergency assistance Presidential declaration of an [FR Doc. 2011–25033 Filed 9–28–11; 8:45 am] and administrative expenses. emergency for the State of New York BILLING CODE 9110–04–P Further, you are authorized to make (FEMA–3328–EM), dated August 26, changes to this declaration for the approved 2011, and related determinations.

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DATES: Effective Date: August 26, 2011. adversely affected by this declared I have determined that the emergency FOR FURTHER INFORMATION CONTACT: emergency: conditions in certain areas of the Commonwealth of Puerto Rico resulting from Peggy Miller, Office of Response and Bronx, Kings, New York, Queens, Hurricane Irene beginning on August 21, Recovery, Federal Emergency Richmond, Nassau, and Suffolk Counties for 2011, and continuing, are of sufficient Management Agency, 500 C Street, SW., emergency protective measures (Category B), severity and magnitude to warrant an Washington, DC 20472, (202) 646–3886. including Federal direct assistance, under the emergency declaration under the Robert T. Public assistance program at 75 percent SUPPLEMENTARY INFORMATION: Stafford Disaster Relief and Emergency Notice is federal funding. hereby given that, in a letter dated Assistance Act, 42 U.S.C. 5121 et seq. (‘‘the The following Catalog of Federal Domestic August 26, 2011, the President issued an Stafford Act’’). Therefore, I declare that such Assistance Numbers (CFDA) are to be used an emergency exists in the Commonwealth of emergency declaration under the for reporting and drawing funds: 97.030, Puerto Rico. authority of the Robert T. Stafford Community Disaster Loans; 97.031, Cora You are authorized to provide appropriate Disaster Relief and Emergency Brown Fund; 97.032, Crisis Counseling; assistance for required emergency measures, Assistance Act, 42 U.S.C. 5121–5208 97.033, Disaster Legal Services; 97.034, authorized under Title V of the Stafford Act, (the Stafford Act), as follows: Disaster Unemployment Assistance (DUA); to save lives and to protect property and 97.046, Fire Management Assistance Grant; public health and safety, and to lessen or I have determined that the emergency 97.048, Disaster Housing Assistance to avert the threat of a catastrophe in the conditions in certain areas of the State of Individuals and Households In Presidentially designated areas. Specifically, you are New York resulting from Hurricane Irene Declared Disaster Areas; 97.049, authorized to provide assistance for beginning on August 25, 2011, and Presidentially Declared Disaster Assistance— emergency protective measures (Category B), continuing, are of sufficient severity and Disaster Housing Operations for Individuals limited to direct Federal assistance, under magnitude to warrant an emergency and Households; 97.050, Presidentially the Public Assistance program. This declaration under the Robert T. Stafford Declared Disaster Assistance to Individuals assistance excludes regular time costs for Disaster Relief and Emergency Assistance and Households—Other Needs; 97.036, subgrantees’ regular employees. Act, 42 U.S.C. 5121 et seq. (‘‘the Stafford Disaster Grants—Public Assistance Consistent with the requirement that Act’’). Therefore, I declare that such an (Presidentially Declared Disasters); 97.039, Federal assistance is supplemental, any emergency exists in the State of New York. Hazard Mitigation Grant. Federal funds provided under the Stafford You are authorized to provide appropriate Act for Public Assistance will be limited to Dated: September 23, 2011. assistance for required emergency measures, 75 percent of the total eligible costs. In order authorized under Title V of the Stafford Act, W. Craig Fugate, to provide Federal assistance, you are hereby to save lives and to protect property and Administrator, Federal Emergency authorized to allocate from funds available public health and safety, and to lessen or Management Agency. for these purposes such amounts as you find avert the threat of a catastrophe in the [FR Doc. 2011–25133 Filed 9–28–11; 8:45 am] necessary for Federal emergency assistance designated areas. Specifically, you are and administrative expenses. BILLING CODE 9111–23–P authorized to provide assistance for Further, you are authorized to make emergency protective measures (Category B), changes to this declaration for the approved including direct Federal assistance, under the assistance to the extent allowable under the Public Assistance program. This assistance DEPARTMENT OF HOMELAND Stafford Act. excludes regular time costs for subgrantees’ SECURITY regular employees. The Federal Emergency Management Consistent with the requirement that Federal Emergency Management Agency (FEMA) hereby gives notice that Federal assistance is supplemental, any Agency pursuant to the authority vested in the Federal funds provided under the Stafford Administrator, Department of Homeland Act for Public Assistance will be limited to [Internal Agency Docket No. FEMA–3326– Security, under Executive Order 12148, EM; Docket ID FEMA–2011–0001] 75 percent of the total eligible costs. In order as amended, Justo Herna´ndez, of FEMA to provide Federal assistance, you are hereby Puerto Rico; Emergency and Related is appointed to act as the Federal authorized to allocate from funds available Coordinating Officer for this declared for these purposes such amounts as you find Determinations necessary for Federal emergency assistance emergency. AGENCY: Federal Emergency and administrative expenses. The following areas of the Further, you are authorized to make Management Agency, DHS. Commonwealth of Puerto Rico have changes to this declaration for the approved ACTION: Notice. been designated as adversely affected by assistance to the extent allowable under the this declared emergency: Stafford Act. SUMMARY: This is a notice of the Presidential declaration of an All 78 municipalities in the The Federal Emergency Management Commonwealth of Puerto Rico for emergency emergency for the Commonwealth of protective measures (Category B), limited to Agency (FEMA) hereby gives notice that Puerto Rico (FEMA–3326–EM), dated pursuant to the authority vested in the direct Federal assistance, under the Public August 22, 2011, and related Assistance program at 75 percent Federal Administrator, Department of Homeland determinations. funding. Security, under Executive Order 12148, The following Catalog of Federal Domestic as amended, Philip E. Parr, of FEMA is DATES: Effective Date: August 22, 2011. FOR FURTHER INFORMATION CONTACT: Assistance Numbers (CFDA) are to be used appointed to act as the Federal for reporting and drawing funds: 97.030, Coordinating Officer for this declared Peggy Miller, Office of Response and Community Disaster Loans; 97.031, Cora emergency. Recovery, Federal Emergency Brown Fund; 97.032, Crisis Counseling; The Federal Emergency Management Management Agency, 500 C Street, SW., 97.033, Disaster Legal Services; 97.034, Agency (FEMA) hereby gives notice that Washington, DC 20472, (202) 646–3886. Disaster Unemployment Assistance (DUA); pursuant to the authority vested in the SUPPLEMENTARY INFORMATION: Notice is 97.046, Fire Management Assistance Grant; Administrator, under Executive Order hereby given that, in a letter dated 97.048, Disaster Housing Assistance to 12148, as amended, Philip E. Parr, of August 22, 2011, the President issued an Individuals and Households In Presidentially Declared Disaster Areas; 97.049, FEMA is appointed to act as the Federal emergency declaration under the Presidentially Declared Disaster Assistance— Coordinating Officer for this major authority of the Robert T. Stafford Disaster Housing Operations for Individuals disaster. Disaster Relief and Emergency and Households; 97.050, Presidentially The following areas of the State of Assistance Act, 42 U.S.C. 5121–5208 Declared Disaster Assistance to Individuals New York have been designated as (the Stafford Act), as follows: and Households—Other Needs; 97.036,

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Disaster Grants—Public Assistance DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND (Presidentially Declared Disasters); 97.039, SECURITY SECURITY Hazard Mitigation Grant. Dated: September 23, 2011. Federal Emergency Management Federal Emergency Management W. Craig Fugate, Agency Agency Administrator, Federal Emergency Management Agency. [Internal Agency Docket No. FEMA–3339– [Internal Agency Docket No. FEMA–3318– [FR Doc. 2011–25132 Filed 9–28–11; 8:45 am] EM; Docket ID FEMA–2011–0001] EM; Docket ID FEMA–2011–0001] BILLING CODE 9111–23–P Pennsylvania; Amendment No. 3 to North Dakota; Amendment No. 6 to Notice of an Emergency Declaration Notice of an Emergency Declaration DEPARTMENT OF HOMELAND SECURITY AGENCY: Federal Emergency AGENCY: Federal Emergency Management Agency, DHS. Management Agency, DHS. Federal Emergency Management Agency ACTION: Notice. ACTION: Notice.

SUMMARY: [Internal Agency Docket No. FEMA–3341– SUMMARY: This notice amends the notice This notice amends the notice EM; Docket ID FEMA–2011–0001] of an emergency declaration for of an emergency declaration for State of Commonwealth of Pennsylvania North Dakota (FEMA–3318–EM), dated New York; Amendment No. 1 to Notice (FEMA–3339–EM), dated August 29, April 7, 2011, and related of an Emergency Declaration 2011, and related determinations. determinations.

AGENCY: Federal Emergency DATES: Effective Date: August 31, 2011. DATES: Effective Date: September 14, Management Agency, DHS. FOR FURTHER INFORMATION CONTACT: 2011. ACTION: Notice. Peggy Miller, Office of Response and FOR FURTHER INFORMATION CONTACT: Recovery, Federal Emergency Peggy Miller, Office of Response and SUMMARY: This notice amends the notice Management Agency, 500 C Street, SW., Recovery, Federal Emergency of an emergency declaration for the Washington, DC 20472, (202) 646–3886. Management Agency, 500 C Street, SW., State of New York (FEMA–3341–EM), Washington, DC 20472, (202) 646–3886. dated September 8, 2011, and related SUPPLEMENTARY INFORMATION: The determinations. Federal Emergency Management Agency SUPPLEMENTARY INFORMATION: The (FEMA) hereby gives notice that Federal Emergency Management Agency DATES: Effective Date: September 11, pursuant to the authority vested in the (FEMA) hereby gives notice that 2011. Administrator, under Executive Order pursuant to the authority vested in the FOR FURTHER INFORMATION CONTACT: 12148, as amended, Thomas J. McCool, Administrator, under Executive Order Peggy Miller, Office of Response and of FEMA is appointed to act as the 12148, as amended, Deanne Criswell, of Recovery, Federal Emergency Federal Coordinating Officer for this FEMA is appointed to act as the Federal Management Agency, 500 C Street, SW., emergency. Coordinating Officer for this emergency. Washington, DC 20472, (202) 646–3886. This action terminates the This action terminates the SUPPLEMENTARY INFORMATION: Notice is appointment of Edward Smith as appointment of Willie G. Nunn as hereby given that the incident period for Federal Coordinating Officer for this Federal Coordinating Officer for this this emergency is closed effective emergency. emergency. September 11, 2011. The following Catalog of Federal Domestic The following Catalog of Federal Domestic The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used Assistance Numbers (CFDA) are to be used Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, for reporting and drawing funds: 97.030, for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Community Disaster Loans; 97.031, Cora Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; Brown Fund; 97.032, Crisis Counseling; Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, 97.033, Disaster Legal Services; 97.034, 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); Disaster Unemployment Assistance (DUA); Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.046, Fire Management Assistance Grant; 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to 97.048, Disaster Housing Assistance to 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Individuals and Households In Presidentially Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Declared Disaster Areas; 97.049, Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance— Presidentially Declared Disaster Assistance— Presidentially Declared Disaster Assistance— Disaster Housing Operations for Individuals Disaster Housing Operations for Individuals Disaster Housing Operations for Individuals and Households; 97.050, Presidentially and Households; 97.050, Presidentially and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals Declared Disaster Assistance to Individuals Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, and Households—Other Needs; 97.036, and Households—Other Needs; 97.036, Disaster Grants—Public Assistance Disaster Grants—Public Assistance Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant. (Presidentially Declared Disasters); 97.039, (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant. Hazard Mitigation Grant. Dated: September 23, 2011. W. Craig Fugate, W. Craig Fugate, W. Craig Fugate, Administrator, Federal Emergency Administrator, Federal Emergency Administrator, Federal Emergency Management Agency. Management Agency. Management Agency. [FR Doc. 2011–25126 Filed 9–28–11; 8:45 am] [FR Doc. 2011–25156 Filed 9–28–11; 8:45 am] [FR Doc. 2011–25146 Filed 9–28–11; 8:45 am] BILLING CODE 9111–23–P BILLING CODE 9110–23–P BILLING CODE 9111–23–P

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DEPARTMENT OF HOMELAND pursuant to the authority vested in the August 24, 2011, the President issued a SECURITY Administrator, under Executive Order major disaster declaration under the 12148, as amended, Gary Stanley, of authority of the Robert T. Stafford Federal Emergency Management FEMA is appointed to act as the Federal Disaster Relief and Emergency Agency Coordinating Officer for this major Assistance Act, 42 U.S.C. 5121 et seq. [Internal Agency Docket No. FEMA–4023– disaster. (the ‘‘Stafford Act’’), as follows: DR; Docket ID FEMA–2011–0001] The following areas of the State of I have determined that the damage in Connecticut have been designated as certain areas of the State of Iowa resulting Connecticut; Major Disaster and adversely affected by this major disaster: from severe storms, straight-line winds, and Related Determinations Fairfield, Litchfield, Middlesex, New flooding during the period of July 9–14, 2011, is of sufficient severity and magnitude to AGENCY: Federal Emergency Haven, and New London Counties for Public Assistance. Direct federal assistance is warrant a major disaster declaration under Management Agency, DHS. authorized. the Robert T. Stafford Disaster Relief and ACTION: Notice. All counties within the State of Connecticut Emergency Assistance Act, 42 U.S.C. 5121 et seq. (the ‘‘Stafford Act’’). Therefore, I declare SUMMARY: This is a notice of the are eligible to apply for assistance under the that such a major disaster exists in the State Presidential declaration of a major Hazard Mitigation Grant Program. The following Catalog of Federal Domestic of Iowa. disaster for the State of Connecticut In order to provide Federal assistance, you (FEMA–4023–DR), dated September 2, Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, are hereby authorized to allocate from funds 2011, and related determinations. Community Disaster Loans; 97.031, Cora available for these purposes such amounts as DATES: Effective Date: September 2, Brown Fund; 97.032, Crisis Counseling; you find necessary for Federal disaster 2011. 97.033, Disaster Legal Services; 97.034, assistance and administrative expenses. You are authorized to provide Public FOR FURTHER INFORMATION CONTACT: Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; Assistance in the designated areas and Peggy Miller, Office of Response and 97.048, Disaster Housing Assistance to Hazard Mitigation throughout the State. Recovery, Federal Emergency Individuals and Households in Presidentially Consistent with the requirement that Federal Management Agency, 500 C Street, SW., Declared Disaster Areas; 97.049, assistance is supplemental, any Federal Washington, DC 20472, (202) 646–3886. Presidentially Declared Disaster Assistance— funds provided under the Stafford Act for SUPPLEMENTARY INFORMATION: Notice is Disaster Housing Operations for Individuals Public Assistance and Hazard Mitigation will hereby given that, in a letter dated and Households; 97.050, Presidentially be limited to 75 percent of the total eligible September 2, 2011, the President issued Declared Disaster Assistance to Individuals costs. a major disaster declaration under the and Households—Other Needs; 97.036, Further, you are authorized to make Disaster Grants—Public Assistance authority of the Robert T. Stafford changes to this declaration for the approved (Presidentially Declared Disasters); 97.039, assistance to the extent allowable under the Disaster Relief and Emergency Hazard Mitigation Grant. Assistance Act, 42 U.S.C. 5121 et seq. Stafford Act. W. Craig Fugate, (the ‘‘Stafford Act’’), as follows: The Federal Emergency Management Administrator, Federal Emergency I have declared a major disaster under the Agency (FEMA) hereby gives notice that Management Agency. Robert T. Stafford Disaster Relief and pursuant to the authority vested in the Emergency Assistance Act, 42 U.S.C. 5121 et [FR Doc. 2011–25136 Filed 9–28–11; 8:45 am] Administrator, under Executive Order seq. (the ‘‘Stafford Act’’), for the State of BILLING CODE 9111–23–P 12148, as amended, Michael R. Scott, of Connecticut due to damage resulting from Tropical Storm Irene beginning on August FEMA is appointed to act as the Federal Coordinating Officer for this major 27, 2011, and continuing. I have authorized DEPARTMENT OF HOMELAND disaster. Federal relief and recovery assistance in the SECURITY affected area. The following areas of the State of Public Assistance and Hazard Mitigation Federal Emergency Management Iowa have been designated as adversely will be provided. Consistent with the requirement that Federal assistance is Agency affected by this major disaster: supplemental, any Federal funds provided [Internal Agency Docket No. FEMA–4016– Benton, Clay Dickinson, Marshall, Story, under the Stafford Act for Public Assistance DR; Docket ID FEMA–2011–0001] and Tama Counties for Public Assistance. All and Hazard Mitigation will be limited to 75 counties within the State of Iowa are eligible percent of the total eligible costs in the Iowa; Major Disaster and Related to apply for assistance under the Hazard designated areas. Determinations Mitigation Grant Program. The Department of Homeland Security, The following Catalog of Federal Domestic Federal Emergency Management Agency AGENCY: Federal Emergency Assistance Numbers (CFDA) are to be used (FEMA), will coordinate Federal assistance Management Agency, DHS. efforts and designate specific areas eligible for reporting and drawing funds: 97.030, for such assistance. The Federal Coordinating ACTION: Notice. Community Disaster Loans; 97.031, Cora Officer will be Mr. Gary Stanley of FEMA. He Brown Fund; 97.032, Crisis Counseling; SUMMARY: This is a notice of the will consult with you and assist in the 97.033, Disaster Legal Services; 97.034, execution of the FEMA-State Agreement for Presidential declaration of a major Disaster Unemployment Assistance (DUA); disaster assistance governing the expenditure disaster for the State of Iowa (FEMA– 97.046, Fire Management Assistance Grant; of Federal funds. 4016–DR), dated August 24, 2011, and 97.048, Disaster Housing Assistance to The time period prescribed for the related determinations. Individuals and Households in Presidentially implementation of section 310(a), DATES: Effective Date: August 24, 2011. Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance— Priority to Certain Applications for FOR FURTHER INFORMATION CONTACT: Peggy Miller, Office of Response and Disaster Housing Operations for Individuals Public Facility and Public Housing and Households; 97.050, Presidentially Recovery, Federal Emergency Assistance, 42 U.S.C. 5153, shall be for Declared Disaster Assistance to Individuals a period not to exceed six months after Management Agency, 500 C Street, SW., and Households—Other Needs; 97.036, the date of this declaration. Washington, DC 20472, (202) 646–3886. Disaster Grants—Public Assistance The Federal Emergency Management SUPPLEMENTARY INFORMATION: Notice is (Presidentially Declared Disasters); 97.039, Agency (FEMA) hereby gives notice that hereby given that, in a letter dated Hazard Mitigation Grant.

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Dated: September 23, 2011. assistance to the extent allowable under the State of New York (FEMA–4031–DR), W. Craig Fugate, Stafford Act. dated September 13, 2011, and related Administrator, Federal Emergency The Federal Emergency Management determinations. Management Agency. Agency (FEMA) hereby gives notice that DATES: Effective Date: September 11, [FR Doc. 2011–25130 Filed 9–28–11; 8:45 am] pursuant to the authority vested in the 2011. BILLING CODE 9111–23–P Administrator, under Executive Order FOR FURTHER INFORMATION CONTACT: 12148, as amended, Donald L. Keldsen, Peggy Miller, Office of Response and of FEMA is appointed to act as the Recovery, Federal Emergency DEPARTMENT OF HOMELAND Federal Coordinating Officer for this Management Agency, 500 C Street, SW., SECURITY major disaster. Washington, DC 20472, (202) 646–3886. The following areas of the Federal Emergency Management Commonwealth of Virginia have been SUPPLEMENTARY INFORMATION: Notice is Agency designated as adversely affected by this hereby given that the incident period for [Internal Agency Docket No. FEMA–4024– major disaster: this disaster is closed effective September 11, 2011. DR; Docket ID FEMA–2011–0001] The counties of Essex, Isle of Wight, James City, Lancaster, Middlesex, New Kent, The following Catalog of Federal Domestic Virginia; Major Disaster and Related Richmond, Southampton, Sussex, Assistance Numbers (CFDA) are to be used Determinations Westmoreland, and York and the for reporting and drawing funds: 97.030, independent cities of Chesapeake, Emporia, Community Disaster Loans; 97.031, Cora AGENCY: Federal Emergency Brown Fund; 97.032, Crisis Counseling; Management Agency, DHS. Hampton, Hopewell, Newport News, Norfolk, Poquoson, Portsmouth, Suffolk, Virginia 97.033, Disaster Legal Services; 97.034, ACTION: Notice. Beach, and Williamsburg for Public Disaster Unemployment Assistance (DUA); Assistance. 97.046, Fire Management Assistance Grant; SUMMARY: This is a notice of the All counties and independent cities in the 97.048, Disaster Housing Assistance to Presidential declaration of a major Commonwealth of Virginia are eligible to Individuals and Households In Presidentially disaster for the Commonwealth of apply for assistance under the Hazard Declared Disaster Areas; 97.049, Virginia (FEMA–4024–DR), dated Mitigation Grant Program. Presidentially Declared Disaster Assistance— September 3, 2011, and related Disaster Housing Operations for Individuals The following Catalog of Federal Domestic and Households; 97.050, Presidentially determinations. Assistance Numbers (CFDA) are to be used Declared Disaster Assistance to Individuals DATES: Effective Date: September 3, for reporting and drawing funds: 97.030, and Households—Other Needs; 97.036, 2011. Community Disaster Loans; 97.031, Cora Disaster Grants—Public Assistance Brown Fund; 97.032, Crisis Counseling; (Presidentially Declared Disasters); 97.039, FOR FURTHER INFORMATION CONTACT: 97.033, Disaster Legal Services; 97.034, Hazard Mitigation Grant. Peggy Miller, Office of Response and Disaster Unemployment Assistance (DUA); Recovery, Federal Emergency 97.046, Fire Management Assistance Grant; Dated: September 23, 2011. Management Agency, 500 C Street, SW., 97.048, Disaster Housing Assistance to W. Craig Fugate, Washington, DC 20472, (202) 646–3886. Individuals and Households In Presidentially Administrator, Federal Emergency Declared Disaster Areas; 97.049, Management Agency. SUPPLEMENTARY INFORMATION: Notice is Presidentially Declared Disaster Assistance— [FR Doc. 2011–25127 Filed 9–28–11; 8:45 am] hereby given that, in a letter dated Disaster Housing Operations for Individuals September 3, 2011, the President issued and Households; 97.050, Presidentially BILLING CODE 9111–23–P a major disaster declaration under the Declared Disaster Assistance to Individuals authority of the Robert T. Stafford and Households—Other Needs; 97.036, Disaster Relief and Emergency Disaster Grants—Public Assistance DEPARTMENT OF HOMELAND Assistance Act, 42 U.S.C. 5121 et seq. (Presidentially Declared Disasters); 97.039, SECURITY Hazard Mitigation Grant. (the ‘‘Stafford Act’’), as follows: Federal Emergency Management September 23, 2011. I have determined that the damage in Agency certain areas of the Commonwealth of W. Craig Fugate, Virginia resulting from Hurricane Irene Administrator, Federal Emergency [Internal Agency Docket No. FEMA–4026– during the period of August 26–28, 2011, is Management Agency. DR; Docket ID FEMA–2011–0001] of sufficient severity and magnitude to [FR Doc. 2011–25131 Filed 9–28–11; 8:45 am] warrant a major disaster declaration under the Robert T. Stafford Disaster Relief and BILLING CODE 9111–23–P New Hampshire; Amendment No. 4 to Emergency Assistance Act, 42 U.S.C. 5121 et Notice of a Major Disaster Declaration seq. (the ‘‘Stafford Act’’). Therefore, I declare AGENCY: that such a major disaster exists in the DEPARTMENT OF HOMELAND Federal Emergency Commonwealth of Virginia. SECURITY Management Agency, DHS. In order to provide Federal assistance, you ACTION: Notice. are hereby authorized to allocate from funds Federal Emergency Management available for these purposes such amounts as Agency SUMMARY: This notice amends the notice you find necessary for Federal disaster of a major disaster declaration for the assistance and administrative expenses. [Internal Agency Docket No. FEMA–4031– DR; Docket ID FEMA–2011–0001] State of New Hampshire (FEMA–4026– You are authorized to provide Public DR), dated September 3, 2011, and Assistance in the designated areas and related determinations. Hazard Mitigation throughout the New York; Amendment No. 3 to Notice Commonwealth. Consistent with the of a Major Disaster Declaration DATES: Effective Date: September 23, requirement that Federal assistance is 2011. supplemental, any Federal funds provided AGENCY: Federal Emergency FOR FURTHER INFORMATION CONTACT: under the Stafford Act for Public Assistance Management Agency, DHS. and Hazard Mitigation will be limited to 75 ACTION: Notice. Peggy Miller, Office of Response and percent of the total eligible costs. Recovery, Federal Emergency Further, you are authorized to make SUMMARY: This notice amends the notice Management Agency, 500 C Street, SW., changes to this declaration for the approved of a major disaster declaration for the Washington, DC 20472, (202) 646–3886.

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SUPPLEMENTARY INFORMATION: The notice determined to have been adversely Broome, Chenango, Delaware, Otsego, and of a major disaster declaration for the affected by the event declared a major Tioga Counties for Public Assistance (already State of New Hampshire is hereby disaster by the President in his designated for Individual Assistance). amended to include the following area declaration of September 12, 2011. Tompkins County for Public Assistance. among those areas determined to have Berks, Bucks, Chester, Delaware, The following Catalog of Federal Domestic been adversely affected by the event Montgomery, Northampton, and Philadelphia Assistance Numbers (CFDA) are to be used Counties for Individual Assistance. for reporting and drawing funds: 97.030, declared a major disaster by the Community Disaster Loans; 97.031, Cora President in his declaration of The following Catalog of Federal Domestic Brown Fund; 97.032, Crisis Counseling; September 3, 2011. Assistance Numbers (CFDA) are to be used 97.033, Disaster Legal Services; 97.034, for reporting and drawing funds: 97.030, Belknap County for Public Assistance, Disaster Unemployment Assistance (DUA); Community Disaster Loans; 97.031, Cora including direct Federal assistance. 97.046, Fire Management Assistance Grant; Brown Fund; 97.032, Crisis Counseling; 97.048, Disaster Housing Assistance to The following Catalog of Federal Domestic 97.033, Disaster Legal Services; 97.034, Assistance Numbers (CFDA) are to be used Individuals and Households in Presidentially Disaster Unemployment Assistance (DUA); Declared Disaster Areas; 97.049, for reporting and drawing funds: 97.030, 97.046, Fire Management Assistance Grant; Community Disaster Loans; 97.031, Cora Presidentially Declared Disaster Assistance— 97.048, Disaster Housing Assistance to Disaster Housing Operations for Individuals Brown Fund; 97.032, Crisis Counseling; Individuals and Households In Presidentially 97.033, Disaster Legal Services; 97.034, and Households; 97.050, Presidentially Declared Disaster Areas; 97.049, Declared Disaster Assistance to Individuals Disaster Unemployment Assistance (DUA); Presidentially Declared Disaster Assistance— 97.046, Fire Management Assistance Grant; and Households—Other Needs; 97.036, Disaster Housing Operations for Individuals Disaster Grants—Public Assistance 97.048, Disaster Housing Assistance to and Households; 97.050, Presidentially Individuals and Households in Presidentially (Presidentially Declared Disasters); 97.039, Declared Disaster Assistance to Individuals Hazard Mitigation Grant. Declared Disaster Areas; 97.049, and Households—Other Needs; 97.036, Presidentially Declared Disaster Assistance— Disaster Grants—Public Assistance W. Craig Fugate, Disaster Housing Operations for Individuals (Presidentially Declared Disasters); 97.039, Administrator, Federal Emergency and Households; 97.050, Presidentially Hazard Mitigation Grant. Management Agency. Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, W. Craig Fugate, [FR Doc. 2011–25138 Filed 9–28–11; 8:45 am] Disaster Grants—Public Assistance Administrator, Federal Emergency BILLING CODE 9111–23–P (Presidentially Declared Disasters); 97.039, Management Agency. Hazard Mitigation Grant. [FR Doc. 2011–25139 Filed 9–28–11; 8:45 am] DEPARTMENT OF HOMELAND W. Craig Fugate, BILLING CODE 9111–23–P SECURITY Administrator, Federal Emergency Management Agency. Federal Emergency Management DEPARTMENT OF HOMELAND [FR Doc. 2011–25134 Filed 9–28–11; 8:45 am] Agency SECURITY BILLING CODE 9111–23–P [Internal Agency Docket No. FEMA–4032– Federal Emergency Management DR; Docket ID FEMA–2011–0001] Agency DEPARTMENT OF HOMELAND Maine; Amendment No. 1 to Notice of SECURITY [Internal Agency Docket No. FEMA–4031– a Major Disaster Declaration DR; Docket ID FEMA–2011–0001] Federal Emergency Management AGENCY: Federal Emergency Agency New York; Amendment No. 4 to Notice Management Agency, DHS. of a Major Disaster Declaration [Internal Agency Docket No. FEMA–4030– ACTION: Notice. DR; Docket ID FEMA–2011–0001] AGENCY: Federal Emergency SUMMARY: This notice amends the notice Management Agency, DHS. Pennsylvania; Amendment No. 1 to of a major disaster declaration for the Notice of a Major Disaster Declaration ACTION: Notice. State of Maine (FEMA–4032–DR), dated September 13, 2011, and related AGENCY: SUMMARY: This notice amends the notice Federal Emergency determinations. Management Agency, DHS. of a major disaster declaration for the ACTION: Notice. State of New York (FEMA–4031–DR), DATES: Effective Date: September 23, dated September 13, 2011, and related 2011. SUMMARY: This notice amends the notice determinations. FOR FURTHER INFORMATION CONTACT: of a major disaster declaration for the DATES: Effective Date: September 23, Peggy Miller, Office of Response and Commonwealth of Pennsylvania 2011. Recovery, Federal Emergency (FEMA–4030–DR), dated September 12, FOR FURTHER INFORMATION CONTACT: Management Agency, 500 C Street, SW., 2011, and related determinations. Peggy Miller, Office of Response and Washington, DC 20472, (202) 646–3886. DATES: Effective Date: September 23, Recovery, Federal Emergency SUPPLEMENTARY INFORMATION: The notice 2011. Management Agency, 500 C Street, SW., of a major disaster declaration for the FOR FURTHER INFORMATION CONTACT: Washington, DC 20472, (202) 646–3886. State of Maine is hereby amended to Peggy Miller, Office of Response and SUPPLEMENTARY INFORMATION: The notice include the following area among those Recovery, Federal Emergency of a major disaster declaration for the areas determined to have been adversely Management Agency, 500 C Street, SW., State of New York is hereby amended to affected by the event declared a major Washington, DC 20472, (202) 646–3886. include the Public Assistance program disaster by the President in his SUPPLEMENTARY INFORMATION: The notice for the following areas among those declaration of September 13, 2011. of a major disaster declaration for the areas determined to have been adversely Lincoln County for Public Assistance. Commonwealth of Pennsylvania is affected by the event declared a major The following Catalog of Federal Domestic hereby amended to include the disaster by the President in his Assistance Numbers (CFDA) are to be used following areas among those areas declaration of September 13, 2011. for reporting and drawing funds: 97.030,

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Community Disaster Loans; 97.031, Cora Declared Disaster Areas; 97.049, Disaster Grants—Public Assistance Brown Fund; 97.032, Crisis Counseling; Presidentially Declared Disaster Assistance— (Presidentially Declared Disasters); 97.039, 97.033, Disaster Legal Services; 97.034, Disaster Housing Operations for Individuals Hazard Mitigation Grant. Disaster Unemployment Assistance (DUA); and Households; 97.050, Presidentially 97.046, Fire Management Assistance Grant; Declared Disaster Assistance to Individuals W. Craig Fugate, 97.048, Disaster Housing Assistance to and Households—Other Needs; 97.036, Administrator, Federal Emergency Individuals and Households in Presidentially Disaster Grants—Public Assistance Management Agency. Declared Disaster Areas; 97.049, (Presidentially Declared Disasters); 97.039, [FR Doc. 2011–25135 Filed 9–28–11; 8:45 am] Presidentially Declared Disaster Assistance— Hazard Mitigation Grant. BILLING CODE 9111–23–P Disaster Housing Operations for Individuals Dated: September 23, 2011. and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals W. Craig Fugate, and Households—Other Needs; 97.036, Administrator, Federal Emergency DEPARTMENT OF HOMELAND Disaster Grants—Public Assistance Management Agency. SECURITY (Presidentially Declared Disasters); 97.039, [FR Doc. 2011–25128 Filed 9–28–11; 8:45 am] U.S. Customs and Border Protection Hazard Mitigation Grant. BILLING CODE 9111–23–P September 23, 2011. Notice of Discontinuation of H–2A and W. Craig Fugate, H–2B Temporary Worker Visa Exit DEPARTMENT OF HOMELAND Administrator, Federal Emergency Program Pilot CBP Dec. 11–16 Management Agency. SECURITY AGENCY: U.S. Customs and Border [FR Doc. 2011–25129 Filed 9–28–11; 8:45 am] Federal Emergency Management Protection, Department of Homeland BILLING CODE 9111–23–P Agency Security. [Internal Agency Docket No. FEMA–4029– ACTION: General notice; discontinuation DEPARTMENT OF HOMELAND DR; Docket ID FEMA–2011–0001] of program pilot. SECURITY Texas; Amendment No. 5 to Notice of SUMMARY: This Notice announces that Federal Emergency Management a Major Disaster Declaration CBP is discontinuing the H–2A and H– Agency 2B Temporary Worker Visa Exit AGENCY: Federal Emergency Program Pilot, effective September 29, [Internal Agency Docket No. FEMA–4012– Management Agency, DHS. 2011. The pilot began on December 8, DR; Docket ID FEMA–2011–0001] ACTION: Notice. 2009. It required temporary workers in H–2A or H–2B nonimmigrant Missouri; Amendment No. 3 to Notice SUMMARY: This notice amends the notice classifications who enter the United of a Major Disaster Declaration of a major disaster declaration for the States at the port of San Luis, Arizona, State of Texas (FEMA–4029–DR), dated AGENCY: Federal Emergency or the port of Douglas, Arizona, to September 9, 2011, and related Management Agency, DHS. depart (at the time of their final determinations. ACTION: Notice. departure) from these respective ports DATES: Effective Date: September 23, and to submit certain biographical and SUMMARY: This notice amends the notice 2011. biometric information at one of the of a major disaster declaration for the FOR FURTHER INFORMATION CONTACT: kiosks established for this purpose. State of Missouri (FEMA–4012–DR), Peggy Miller, Office of Response and DATES: The program pilot will be dated August 12, 2011, and related Recovery, Federal Emergency discontinued on September 29, 2011. determinations. Management Agency, 500 C Street, SW., FOR FURTHER INFORMATION CONTACT: Ms. DATES: Effective Date: September 23, Washington, DC 20472, (202) 646–3886. Erin M. McGillicuddy, Program 2011. SUPPLEMENTARY INFORMATION: The notice Manager, Admissibility and Passenger FOR FURTHER INFORMATION CONTACT: of a major disaster declaration for the Programs, Office of Field Operations, Peggy Miller, Office of Response and State of Texas is hereby amended to U.S. Customs and Border Protection, via Recovery, Federal Emergency include the following areas among those e-mail at [email protected]. Management Agency, 500 C Street, SW., areas determined to have been adversely SUPPLEMENTARY INFORMATION: On Washington, DC 20472, (202) 646–3886. affected by the event declared a major December 18, 2008, U.S. Customs and SUPPLEMENTARY INFORMATION: The notice disaster by the President in his Border Protection (CBP) published a of a major disaster declaration for the declaration of September 9, 2011. notice in the Federal Register State of Missouri is hereby amended to Harrison, Smith, and Upshur Counties for announcing that CBP was establishing a include the following area among those Individual Assistance. pilot program for a land-border exit areas determined to have been adversely The following Catalog of Federal Domestic system for H–2A temporary workers at affected by the event declared a major Assistance Numbers (CFDA) are to be used certain designated ports of entry disaster by the President in his for reporting and drawing funds: 97.030, effective August 1, 2009.1 73 FR 77049. declaration of August 12, 2011. Community Disaster Loans; 97.031, Cora The notice provided that H–2A Brown Fund; 97.032, Crisis Counseling; workers who enter the United States at Howard County for Public Assistance. 97.033, Disaster Legal Services; 97.034, either the port of San Luis, Arizona, or The following Catalog of Federal Domestic Disaster Unemployment Assistance (DUA); the port of Douglas, Arizona, as Assistance Numbers (CFDA) are to be used 97.046, Fire Management Assistance Grant; participants in the Temporary Worker for reporting and drawing funds: 97.030, 97.048, Disaster Housing Assistance to Community Disaster Loans; 97.031, Cora Individuals and Households In Presidentially 1 Brown Fund; 97.032, Crisis Counseling; Declared Disaster Areas; 97.049, The H–2A nonimmigrant classification applies 97.033, Disaster Legal Services; 97.034, Presidentially Declared Disaster Assistance— to aliens seeking to perform agricultural labor or services of a temporary or seasonal nature in the Disaster Unemployment Assistance (DUA); Disaster Housing Operations for Individuals United States. Immigration and Nationality Act sec. 97.046, Fire Management Assistance Grant; and Households; 97.050, Presidentially 101(a)(15)(H)(ii)(a), 8 U.S.C. 1101(a)(15)(H)(ii)(a); 97.048, Disaster Housing Assistance to Declared Disaster Assistance to Individuals see generally 8 CFR 214.12(h)(5)(a)(2) (describing Individuals and Households in Presidentially and Households—Other Needs; 97.036, requirements for H–2A classification).

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Visa Exit Program must depart from one The pilot also demonstrated that DHS U.S.C. 552a), the Department of the of those ports and submit certain must evaluate carefully the considerable Interior (DOI) is issuing a public notice biographical and biometric information time and resources that may be required of its intent to amend the Office of at one of the kiosks established for this by field personnel in order to Inspector General (OIG) Investigative purpose. continually support and explain Records system of records notice. The On December 19, 2008, CBP processes used infrequently by a non- amendment includes a consolidated and published a second notice in the immigrant population subject to a updated list of routine uses. The Federal Register, ‘‘Notice of Expansion program specific to that population. amended system of records is captioned of Temporary Worker Visa Exit Program Accordingly, this notice announces ‘‘Investigative Records—Interior, Office Pilot to Include H–2B Temporary that the H–2A and H–2B Temporary of Inspector General—2 (OIG–2).’’ This Workers.’’ 73 FR 77817.2 Worker Visa Exit Program Pilot is being system of records OIG–2 was first CBP published a third notice in the discontinued immediately. Any alien published in the Federal Register on Federal Register on August 25, 2009 that is admitted on an H–2A or H–2B April 11, 1977 (42 FR 19014). The announcing the postponement of the visa into the United States at the ports system was last revised on August 18, commencement date of the H–2A and of San Luis, Arizona, and Douglas, 1983 (48 FR 37536). H–2B temporary Worker Visa Exit Arizona, will no longer be subject to the DATES: Comments must be received by Program Pilot until December 8, 2009. requirements of the program pilot. November 8, 2011. This system will be 74 FR 42909. Aliens who have already been admitted effective November 8, 2011. The pilot has been operating for more on an H–2A or H–2B visa to the United ADDRESSES: Any person interested in than a year. The pilot tested the States at the ports of San Luis, Arizona commenting on this amendment may do processes and technology used to and Douglas, Arizona will not be so by any of the following methods monitor compliance and record the final required to depart the United States departures of persons admitted under from San Luis or Douglas and will not listed below. temporary worker visas as well as its have to submit the biographical or Electronic Comments general design and implementation. biometric information that was required • During this period, DHS gathered Federal eRulemaking Portal: http:// under the pilot program. www.regulations.gov. Follow the enough data to assess the pilot’s Regardless of their date or place of instructions on the Web site for technology, design and implementation admission to the U.S., all H–2 workers and to identify lessons learned that can submitting comments. are subject to the procedures governing • E-mail: [email protected]. Please be applied to programs that may have H–2 nonimmigrants generally. H–2 submit Internet comments as an ASCII similar requirements. The duration of workers are issued a Form I–94, Arrival/ file and avoid the use of special the pilot has also allowed for the Departure Record, upon admission to characters and any form of encryption. seasonal work cycle during which H–2A the U.S. The form indicates the date of and H–2B visa holders typically enter admission to the United States, the Paper Comments and depart from the United States for nonimmigrant classification, and the • Regular U.S. Mail: Sandra Evans, agricultural or other temporary authorized period of admission. Once FOIA/Privacy Act Officer, Office of employment. admitted to the United States, H–2 Inspector General, U.S. Department of Among the challenges that arose workers are required to comply with all the Interior, 1849 C Street, NW., Mail during the pilot were that the persons terms and conditions of their admission Stop—4428, Washington, DC 20240. subject to the pilot had trouble and depart the United States on or • Overnight mail, courier, or hand understanding the requirements and before the expiration of the authorized delivery: Sandra Evans, FOIA/Privacy using the kiosks; although the pilot was period of stay unless the worker Act Officer, Office of Inspector General, designed to be an automated system, properly extends his or her status or U.S. Department of the Interior, 1849 C considerable time and resources by CBP changes his or her status and extends Street, NW., Mail Stop–4428, field personnel were needed to assist his or her period of authorized Washington, DC 20240. the pilot participants in recording their admission. H–2 workers must surrender The OIG will post all comments on exit; kiosk operability was unreliable the departure portion of the Form I–94 the OIG Web site (http:// and inconsistent due in large part to the upon final exit from the United States. www.doioig.gov). Comments will be harsh desert climate; and, the physical Dated: September 21, 2011. posted without change, and therefore layout of the departure area at the Alan D. Bersin, submissions should only contain border crossing limited CBP’s ability to information that the commenter wishes ensure compliance. The pilot reinforced Commissioner, U.S. Customs and Border Protection. to make publicly available. the need to gain a full understanding of FOR FURTHER INFORMATION CONTACT: the covered population’s skill sets in [FR Doc. 2011–24716 Filed 9–28–11; 8:45 am] BILLING CODE 9111–14–P Sandra Evans, FOIA/Privacy Act order to craft effective public Officer, Office of Inspector General, U.S. information materials and to utilize Department of the Interior, 1849 C appropriate technology that will support DEPARTMENT OF THE INTERIOR Street, NW., Mail Stop—4428, a high degree of compliance. For future Washington, DC 20240, programs, DHS will seek to ensure that Privacy Act of 1974; as Amended; [email protected]. the physical requirements for software Notice To Amend an Existing System SUPPLEMENTARY INFORMATION: The Office and hardware reflect the extremes that of Records can be faced in harsh border climates. of Inspector General—Office of AGENCY: Office of Inspector General, Investigations, and Regional Offices, 2 The H–2B nonimmigrant classification applies Interior. maintain the above-entitled system of to foreign workers entering the United States to ACTION: Notice of amendment to an records. The purpose of this system is perform temporary, non-agricultural labor or to store certain investigative case files services. INA sec. 101(a)(15)(H)(ii)(b), 8 U.S.C. existing system of records. 1101(a)(15)(H)(ii)(b); see generally 8 CFR and other materials created or gathered 214.1(a)(2)(h)(62) (designation for H–2B SUMMARY: Pursuant to the provisions of in the course of an official investigation. classification). the Privacy Act of 1974, as amended (5 Records maintained in the system are

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sensitive but unclassified. The (5) Records on complainants, subjects, pay for private representation of the amendments to the system will be victims, witnesses containing the employee; effective as proposed at the end of the following data fields: name, status as (b) When: comment period (the comment period government employee, social security (i) One of the following is a party to will end 40 days after the publication of number, birth date, birth place, aliases, the proceeding or matter or has an this notice in the Federal Register), group affiliation, employment interest in the proceeding or matter: unless comments are received which information, government employment (A) DOI or any component of DOI; would require a contrary determination. information, government employee (B) Any other Federal agency DOI will publish a revised notice if type, grade, agency, address, phone appearing before the Office of Hearings changes are made based upon a review number, e-mail address, and photo. and Appeals; of the comments received. (C) Any DOI employee acting in his or AUTHORITY FOR MAINTENANCE OF THE SYSTEM: her official capacity; Dated: September 23, 2011. Inspector General Act of 1978, 5 (D) Any DOI employee acting in his Sandra Evans, U.S.C. App. 3, 1–12, as amended. or her individual capacity if DOI or DOJ FOIA/Privacy Act Officer, Office of Inspector has agreed to represent that employee or General ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND pay for private representation of the SYSTEM NAME: THE PURPOSES OF SUCH USES: employee; or (E) The United States, or a State, Investigative Records—Interior, Office The primary use of the records is to District, Tribe, Territory or other of Inspector General—2 (OIG–2). facilitate the OIG’s various government or entity vested with responsibilities under the Inspector SYSTEM LOCATIONS prosecution authority; and : General Act of 1978, as amended. The (1) U.S. Department of the Interior, (ii) OIG deems the disclosure to be: OIG is statutorily directed to conduct (A) Relevant and necessary to the Office of Inspector General, 1849 C and supervise investigations relating to Street, NW., Washington DC 20240; (2) proceeding or matter, including programs and operations of the settlement discussions; and Office of Inspector General, 12030 Department of the Interior (DOI), to Sunrise Valley Drive, Reston, VA 20191; (B) Compatible with the purpose for promote economy, efficiency, and which the records were compiled. (3) Office of Inspector General Regional effectiveness in the administration of Offices, Regional sub-offices (a current (2) To a congressional office in such programs and operations, and to response to a written inquiry that an listing of these offices may be obtained prevent and detect fraud, waste, and by writing to the System Manager); and individual covered by the system, or the abuse in such programs and operations. heir of such individual if the covered (4) Investigative site during the course Accordingly, records in this system are of an investigation. individual is deceased, has made to the used within the DOI and OIG in the office. CATEGORIES OF INDIVIDUALS COVERED BY THE course of investigating individuals and (3) To any criminal, civil, or SYSTEM: entities suspected of misconduct, waste, regulatory law enforcement authority Current former and prospective fraud, and abuse, other illegal or (whether federal, state, territorial, local, employees of the Department of the unethical acts and in conducting related tribal or foreign) when a record, either Interior (‘‘DOI’’), complainants, criminal prosecutions, civil alone or in conjunction with other witnesses, confidential and non- proceedings, and administrative actions. information, indicates a violation or confidential informants, contractors, These records are also used to fulfill potential violation of law—criminal, subcontractors, recipients of federal reporting requirements, to maintain civil, or regulatory in nature, and the assistance or funds and their contractor/ records related to the OIG’s activities, disclosure is compatible with the subcontractors and employees, alleged and to prepare and issue reports to purpose for which the records were violators of DOI rules and regulations, Congress, the DOI and its components, compiled. union officials, individuals investigated the Department of Justice, the public (4) To an official of another federal and interviewed, persons suspected of and other entities as appropriate within agency to provide information needed violations of administrative, civil and the mission of the OIG. in the performance of official duties criminal provisions, grantees, sub- DISCLOSURES OUTSIDE DOI MAY BE MADE related to reconciling or reconstructing grantees, lessees, licensees, and other WITHOUT THE CONSENT OF THE INDIVIDUAL TO data files or to enable that agency to persons engaged in business with the WHOM THE RECORD PERTAINS UNDER THE respond to an inquiry by the individual DOI or having contact with the DOI or ROUTINE USES LISTED BELOW: to whom the record pertains. geographical areas under its For purposes of these routine uses, (5) To federal, state, territorial, local, jurisdiction. references to DOI or the Department tribal, or foreign agencies that have shall include OIG. requested information relevant or CATEGORIES OF RECORDS IN THE SYSTEM: (1)(a) To any of the following entities necessary to the hiring, firing or Records related to investigations or individuals, when the circumstances retention of an employee or contractor, conducted by the OIG, including: set forth in subparagraph (b) are met: or the issuance of a security clearance, (1) Complaints, requests to (i) The U.S. Department of Justice license, contract, grant or other benefit, investigate, and administrative referrals; (DOJ); when the disclosure is compatible with (2) Records of case initiation (ii) A court or an adjudicative or other the purpose for which the records were including the following data fields: case administrative body; compiled. number, title of case, dates, offices/ (iii) A party to litigation or (6) To representatives of the National personnel assigned, summary; prosecution or anticipate litigation or Archives and Records Administration to (3) Documents, statements, and prosecution before a court or an conduct records management information of any kind gathered adjudicative or other administrative inspections under the authority of 44 through investigation; body; or U.S.C. §§ 2904 and 2906. (4) Reports, correspondence, notes (iv) Any DOI employee acting in his (7) To state and local governments and memoranda generated by OIG or her individual capacity if DOI or DOJ and tribal organizations to provide regarding investigations; has agreed to represent that employee or information needed in response to court

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order and/or discovery purposes related (17) To an authorized appeal they complained and/or of which they to litigation, when the disclosure is grievance examiner, formal complaints were a victim. compatible with the purpose for which examiner, equal employment (25) To an individual who has been the records were compiled. opportunity investigator, arbitrator or interviewed or contacted by OIG (8) To an expert, consultant, or other person properly engaged in an pursuant to an audit, investigation or contractor (including employees of the investigation or settlement of an evaluation, OIG may provide copies of contractor) of DOI, that performs administrative grievance, complaint, that individual’s statements, testimony, services requiring access to these claim, or appeal filed by an employee, or records produced. records on DOI’s behalf to carry out the special studies of the civil service and (26) To appropriate agencies, entities, purposes of the system. other merit systems, review of Human and persons when OIG determines that (9) To appropriate agencies, entities, Resources or component rules and disclosure may prevent or minimize a and persons when: regulations, investigation of alleged or risk of harm to DOI programs, personnel (a) It is suspected or confirmed that possible prohibited personnel practices, or property, including but not limited to the security or confidentiality of including administrative proceedings a risk of loss or misuse of funds granted information in the system of records has involving any individual subject of an or paid by the DOI to any other agency, been compromised; and OIG or DOI investigation, and such entity or person. (b) The Department has determined other functions promulgated in 5 U.S.C. (27) To the Council of the Inspectors that as a result of the suspected or 1205–06. General on Integrity and Efficiency confirmed compromise there is a risk of (18) To a grand jury agent pursuant to (CIGIE), any successor entity, and other harm to economic or property interest, a federal or state grand jury subpoena or Federal agencies and Offices of identity theft or fraud, or harm to the in response to a prosecution request that Inspectors General, as necessary to security or integrity of this system or such record or information is released respond to an authorized audit, other systems or programs (whether for the purpose of its introduction to a investigation or review. maintained by the Department or grand jury. (28) To the Recovery Accountability another agency or entity) that rely upon (19) To the Office of Personnel and Transparency Board as necessary the compromised information; and Management (OPM) concerning for any matters within the Board’s (c) The disclosure is made to such information on pay and leave, benefits, jurisdiction. agencies, entities and persons who are retirement deductions, or other reasonably necessary to assist in information necessary for OPM to carry POLICIES AND PRACTICES FOR STORING, connection with the Department’s RETRIEVING, ACCESSING, RETAINING AND out its personnel management functions DISPOSING OF RECORDS IN THE SYSTEM: efforts to respond to the suspected or and studies. confirmed compromise and prevent, (20) To Treasury and to the DOJ, STORAGE: minimize, or remedy such harm. when the information is subject to an ex Paper records and all other media (10) To the Office of Management and parte court order permitting the including but not limited to Budget during the coordination and disclosure of return or return (photographs, audio recordings, clearance process in connection with information (26 U.S.C. 6103(b)) by the diskettes, and CD’s) are stored in file legislative affairs as mandated by OMB Internal Revenue Service (IRS), or when cabinets in a secured area. Electronic Circular A–19. disclosure is necessary to facilitate records are maintained on a file server (11) To the Department of the obtaining such an order. that is protected with user account Treasury to recover debts owed to the (21) To the Federal Labor Relations access controls and other appropriate United States. Authority (FLRA) when requested in electronic security measures, and is (12) To the news media when the connection with investigations of physically located in locked facilities disclosure is compatible with the allegations of unfair labor practices or that are secured at all times by alarm purpose for which the records were matters before the Federal Service systems and video surveillance cameras. compiled. Impasses Panel. (13) To a consumer reporting agency (22) To the Office of Government RETRIEVABILITY: if the disclosure requirements of the Ethics (OGE) for any purpose consistent Records are retrievable by Debt Collection Act, as outlined at 31 with that office’s mission including the individual’s name, case number, or U.S.C. 3711(e)(1), have been met. compilation of statistical data. document title. (14) To an individual or entity, to the (23) To the public when the Inspector SAFEGUARDS: extent necessary in order to seek General determines that the disclosure information relevant to a decision by would not reasonably be expected to Access to paper records is restricted DOI concerning the hiring, assignment constitute an unwarranted invasion of to authorized personnel on a need-to- or retention of an individual or other personal privacy, and: know basis. During duty hours, paper personnel action, the issuance, renewal, (a) The matter under investigation or records are located in file cabinets in or retention or revocation of a security audit becomes public knowledge; or OIG space occupied by authorized clearance, the execution of a security or (b) Disclosure is necessary to: personnel. During non-duty hours, suitability investigation, the letting of a (1) Preserve confidence in the paper records and other physical media contract, or the issuance, retention or integrity of the OIG audit or are maintained in locked cabinets revocation of a license, grant, or other investigative process: or located in appropriately secured OIG benefit. (2) Demonstrate the accountability of space. Access to electronic records is (15) To an individual or entity, to the DOI officers, employees, or individuals restricted to authorized personnel who extent necessary in order to seek covered by this system. use them for official purposes. Each information or assistance relevant to an (24) To complainants and/or victims person granted access to the system OIG investigation, audit, or evaluation. to the extent necessary to provide such must be individually authorized to use (16) To a foreign government pursuant persons with information and the system. Security of the system and to an international treaty, convention, or explanations concerning the progress records therein is maintained through executive agreement entered into by the and/or results of the investigation or the use of passwords and other United States. case arising from the matters of which electronic security measures. Passwords

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are changed on a cyclical basis. These General, U.S. Department of the Interior, any of the following methods. You may computer servers are located in locked 1849 C St., NW., Mail Stop 4428, request a paper copy, a summary, or a facilities that are secured at all times by Washington, DC 20240. CD–ROM containing both. alarm systems and video surveillance You may request hard copies or a CD– cameras. During non-duty hours the RECORD SOURCE CATEGORIES: ROM of the document. alarm system provides immediate As an investigative agency focusing Agency Web Site: Download a copy of notification of any attempted intrusion on the activities of the DOI, OIG collects the document at http://alaska.fws.gov/ to OIG Information Technology information from all relevant sources. nwr/planning/plans.htm. personnel. All data exchanged between These include (1) The DOI, its bureaus E-mail: [email protected]; the servers and individual personal and components, and all employees and please include ‘‘Selawik National computers is encrypted. Backup tapes agents; (2) other federal and non-federal Wildlife Refuge CCP’’ in the subject line are stored in a locked and controlled government agencies, and their of the message. room in a secure, off-site location. employees and agents, having business Fax: Attn: Jeffrey Brooks, (907) 786– Measures have been taken to ensure that with the DOI; (3) non-government 3965, or Lee Anne Ayres, (907) 442– the handling of this information meets entities, and their employees and 3124. the requirements of the Department of agents, having business with the DOI; U.S. Mail: Jeffrey Brooks, U.S. Fish the Interior’s Privacy Act regulations, 43 (4) any entity or individual, including and Wildlife Service Regional Office, CFR 2.51. A Privacy Impact Assessment members of the public, who make 1011 E. Tudor Road Mailstop 231, was conducted and recently updated complaints to OIG regarding activities of Anchorage, AK 99503. regarding the electronic records within the DOI or who have information that is In-Person Viewing or Pickup: Call OIG–2. The assessment verified that relevant to our investigations. (907) 786–3357 to make an appointment during regular business hours at the appropriate controls and safeguards are EXEMPTIONS CLAIMED FOR THE SYSTEM: in place. Safeguards include, but are not above address; or call (907) 442–3799 to Pursuant to 5 U.S.C. 552a(j)(2) the limited to, a requirement restricting make an appointment during regular system is exempt from all of the access to the system to OIG personnel business hours at the Selawik Refuge provisions of 5 U.S.C. 552a except who have a ‘‘need to know’’ and have Headquarters in Kotzebue, AK. subsections (b), (c)(1) and (2), (e)(4)(A) been granted authority by the System FOR FURTHER INFORMATION CONTACT: through (F), (e)(6), (7), (9), (10), and (11), Manager. The records and system Jeffrey Brooks, Planning Team Leader, at and (i) and regulations implementing security plan is prepared in a way to the above address, by phone at (907) these provisions. 43 CFR 2.79(a); see reduce the impact to the individual’s 786–3839, or by e-mail at also 48 FR 37536–03 (August 18, 1983); privacy and to manage the system on a [email protected]. 48 FR 37411–01 (August 18, 1983). ‘‘need to know’’ basis according to the Pursuant to 5 U.S.C. 552a(k)(2), the SUPPLEMENTARY INFORMATION: Privacy Act. All personnel within OIG, including system is exempt from 5 U.S.C. 552a Introduction all personnel with access to records in subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I), and (f) and regulations With this notice, we finalize the OIG–2, are required to complete Privacy revised CCP for Selawik National Act, Records Management, and IT implementing these provisions. 43 CFR 2.79(b). Wildlife Refuge. We started this process Security Awareness training on an through a notice of intent in the Federal [FR Doc. 2011–25069 Filed 9–28–11; 8:45 am] annual basis. Register (73 FR 57143; October 1, 2008). BILLING CODE 4310–10–P RETENTION AND DISPOSAL: We made available our draft CCP and Records relating to persons covered Environmental Assessment (EA) and by this system are retained for ten years DEPARTMENT OF THE INTERIOR requested comments in a notice of after the completion of the investigation availability in the Federal Register (75 and/or action based thereon at the U.S. Fish and Wildlife Service FR 65026, October 21, 2010). The draft Department of the Interior, Office of CCP and EA evaluated three alternatives [FWS–R7–R–2011–N136; 70133–1265–0000– for managing the Refuge for the next 15 Inspector General, 1849 C St., NW., S3] Washington DC 20240. After ten years years. records are transferred to the National Selawik National Wildlife Refuge, The Selawik National Wildlife Refuge Archives and Records Administration. Kotzebue, AK; Revised was established by the Alaska National Subpoena log and subpoenaed records Comprehensive Conservation Plan and Interest Lands Conservation Act are destroyed or returned when no Finding of No Significant Impact for (ANILCA) in 1980. Selawik Refuge longer needed for agency use. Records Environmental Assessment straddles the Arctic Circle in are disposed of under applicable northwestern Alaska, encompassing an AGENCY: guidelines. See 384 DM 1. The records Fish and Wildlife Service, area approximately the size of control schedule and disposal standards Interior. Connecticut. Refuge boundaries may be obtained by writing to the ACTION: Notice of availability. encompass approximately 3.2 million Systems Manager at the address below. acres, of which approximately 2.5 SUMMARY: We, the Fish and Wildlife The specific records schedule covering million acres are administered by the Service (Service, USFWS), announce the the system is found in the United States U.S. Fish and Wildlife Service. Section availability of our revised Department of the Interior, Office of 302(7)(B) of ANILCA states the purposes comprehensive conservation plan (CCP) Secretary, Comprehensive Records for which the Selawik Refuge was and finding of no significant impact Disposal Schedule, Subcategory G, established: (1) To conserve fish and (FONSI) for the Selawik National Audit and Investigation, Item 2, wildlife populations and habitats in Wildlife Refuge (Refuge). In this revised Investigative Records. their natural diversity; (2) to fulfill CCP, we describe how we will manage international treaty obligations of the SYSTEM MANAGER AND ADDRESS: the Refuge for the next 15 years. United States with respect to fish and Assistant Inspector General for ADDRESSES: You may view or obtain wildlife and their habitats; (3) to Investigations, Office of Inspector copies of the revised CCP and FONSI by provide the opportunity for continued

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subsistence use by local residents; and wildlife dependent activities. for big game hunting is not authorized (4) to ensure water quality and Opportunities would have been by permit stipulation on refuge lands necessary water quantity within the maintained to pursue research activities. that are in close proximity to or Refuge. Alternative B (the Preferred intermingled with private lands in the Access to the Refuge is possible only Alternative) proposed to follow northwest portion of the refuge. by boat, float- or ski-equipped airplane, management direction described in the Alternative B was modified to authorize snowmobile, or dogsled team. 1987 CCP and record of decision as use by commercial guides and Snowmobile trails provide vital links modified by subsequent program- transporters in an additional 68,000 among the Alaska Native villages of the specific plans, but some of that acres of the refuge. In addition, region in winter and are usually management direction has been updated Alternative B was modified to indicate passable to travelers through the end of by changes in policy since the 1987 that, on a case-by-case basis, the refuge April. Several of these villages are Selawik CCP was approved. Alternative manager may authorize commercial use located within or near the Refuge B identified these specific changes in by special use permit for a part of the boundary, including Buckland, Noorvik, management direction and new goals area where guiding is not authorized Selawik, Kiana, Ambler, Kobuk, and and objectives for Refuge management upon completion of a compatibility Shungnak. that would be adopted regardless of determination and a subsistence The Draft CCP and EA for the Refuge which alternative is selected. evaluation as required by ANILCA were developed consistent with Section Alternative B proposed continuing the Section 810. 304(g) of ANILCA. Based on public policy of not making some public lands, scoping, we identified eight major which are intermingled with private The management of shelter cabins on planning issues: (1) Protection of fish, lands, available for use by commercial refuge lands in Alternative B was wildlife, habitats, and subsistence; (2) guides and transporters whose clients modified to include the following management of access to refuge lands are big game hunting. Alternative B management. A formal partnership will for community residents and the proposed that a formal partnership be be created among the Service, Selawik visiting public; (3) maintaining hunting created between the Refuge and local Refuge, Northwest Arctic Borough, opportunities; (4) addressing local entities to jointly maintain a shared NANA regional corporation, and local public use needs; (5) maintaining water facility of one or more buildings with search and rescue organizations to quality and quantity; (6) maintaining the capacity for office, meeting, and storage formalize the roles and responsibilities wild character of the Refuge and quality space in a community within the refuge. of each partner in performing regular visitor experiences; (7) proactively Alternative B proposed a study of maintenance and/or replacement of addressing the uncertainties of climate traditional access for subsistence shelter cabins on refuge lands. Members change; and (8) providing more outreach purposes. Alternative B proposed that of the formal partnership will review and better communication for the local public use and access needs be the need for additional shelter cabins public. We considered and evaluated all addressed by creating formal and appropriate location(s) for them, of these issues through the alternatives, partnerships between the Refuge and with the option of joint construction of goals, and objectives addressed or various local entities. an additional 1–2 shelter cabins or described in the draft CCP and the EA. Alternative C would have continued relocation of an existing shelter cabin on to follow management direction CCP Alternatives We Considered refuge lands. described in Alternative A as modified The draft CCP and EA described and by subsequent program-specific plans. Compliance With the National evaluated three alternatives for Alternative C would have identified any Environmental Policy Act managing the Refuge. These alternatives specific changes or updates in followed much of the same general management direction and adopted the We are furnishing this notice to management direction. Alternative A new goals and objectives for Refuge advise other agencies and the public of (the No-Action Alternative), required management. Alternative C proposed the availability of the final CCP and under the National Environmental that the Refuge manager could open or FONSI. Based on the review and Policy Act (NEPA), described close some public lands, which are evaluation of the information contained continuation of current management intermingled with private lands, to use in the draft CCP and EA, we have activities. Under Alternative A, by commercial guides and transporters determined that implementation of the management of the Refuge would have whose clients are big game hunting. final CCP does not constitute a major continued to follow direction described Alternative C proposed that the Refuge Federal action that would significantly in the 1987 CCP and record of decision independently maintain a facility of one affect the quality of the human as modified by subsequent program- or more buildings with capacity for environment within the meaning of specific plans (e.g., fisheries and fire office, meeting, and storage space in a Section 102(2)(c) of the National management plans). Alternative A community within the refuge. Environmental Policy Act (NEPA). would have continued to protect and Alternative C proposed the same study Therefore, an Environmental Impact maintain the existing wildlife values, of traditional access for subsistence Statement will not be prepared. Future natural diversity, and ecological purposes. Alternative C would address site-specific proposals discussed in the integrity of the Refuge. Human local public use and access needs final CCP requiring additional NEPA disturbances to fish and wildlife slightly differently from Alternative B compliance will be addressed in habitats and populations would have by proposing to expand or improve separate planning efforts with full been minimal. Private and commercial some opportunities for public use and public involvement. uses of the Refuge would not have access on Refuge lands. Dated: September 22, 2011. changed, and public uses employing existing access methods would have Changes Between Draft and Final Plan Geoffrey L. Haskett, continued to be allowed. Opportunities The preferred alternative (Alternative Regional Director, U.S. Fish and Wildlife would have been maintained to pursue B) was slightly modified as a result of Service, Anchorage, Alaska. traditional subsistence activities and public comments on the draft Plan. Use [FR Doc. 2011–25068 Filed 9–28–11; 8:45 am] recreational hunting, fishing, and other by commercial guides and transporters BILLING CODE 4310–55–P

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DEPARTMENT OF THE INTERIOR DEPARTMENT OF THE INTERIOR This 40-acre parcel is proposed to be transferred to Emery County for use as Bureau of Land Management Bureau of Land Management a trap shooting range and establishment of a rifle range. The BLM conducted a [LLUTG02000. L14300000. FR0000.241A.00; [LLNM004200 L13200000.GA0000] UTU–83291] Phase II Environmental Site Assessment in May of 2011. No hazardous Notice of Intent To Prepare a Resource Notice of Realty Action: Recreation substances, petroleum products, or Management Plan Amendment and and Public Purposes Act Classification recognized environmental conditions Associated Environmental and Conveyance of Public Land in were identified on the 40 acre parcel; no Assessment Addressing Four Federal Emery County, UT further inquiry is needed to assess Coal Lease Applications in Haskell and Recognized Environmental Conditions. AGENCY: Bureau of Land Management, LeFlore Counties, OK; Correction The land is not needed for any Federal Interior. purpose of National significance. The AGENCY: Bureau of Land Management, ACTION: Notice of Realty Action. classification is consistent with the BLM Interior. Price Field Office Record of Decision SUMMARY: The Bureau of Land and Approved Resource Management ACTION: Notice of Correction. Management (BLM) has examined and Plan, Lands and Realty Decision LAR– found suitable for classification and 11, dated October 31, 2008, and is in the SUMMARY: The Bureau of Land conveyance to Emery County under the public interest. An environmental Management published a Notice of provisions of the Recreation and Public assessment has been prepared to Intent in the Federal Register on June Purposes (R&PP) Act, as amended, a analyze the Emery County application 24, 2011 (76 FR 37145), concerning parcel of public land in Emery County, and proposed plans of development and preparation of the Oklahoma Resource Utah. Emery County proposes to management. A conveyance would be Management Plan Amendment and establish a public shooting range subject to the provisions of the R&PP facilities complex. associated Environmental Assessment Act, applicable regulations of the addressing Four Federal Coal Lease DATES: Interested parties may submit Secretary of the Interior, and the following reservations to the United Applications in Haskell and LeFlore written comments regarding this States: Counties, Oklahoma. The notice omitted classification and conveyance of public land until November 14, 2011. 1. A right-of-way thereon for ditches a legal land description for a portion of or canals constructed by the authority of the scoping area. ADDRESSES: Comments may be submitted to the Bureau of Land the United States, Act of August 30, FOR FURTHER INFORMATION CONTACT: Management, Price Field Office, 125 1890 (43 U.S.C. 945). 2. All minerals, together with the right Laurence Levesque or Richard Wymer, South 600 West, Price, Utah, 84501 or to prospect for, mine, and remove such Co-Team Leaders, BLM, Oklahoma Field e-mail: [email protected]. deposits from the same under applicable Office, 7906 E 33rd Street, Suite 101, Please reference ‘‘Conveyance of Federal law and such regulations as the Tulsa, Oklahoma 74145–1352, phone Land to Emery County for Establishment Secretary of the Interior may prescribe. (918) 621–4100. of a Public Shooting Range’’ on all A conveyance would also be subject correspondence. Correction: to the following terms and conditions: FOR FURTHER INFORMATION CONTACT: 1. All valid existing rights. This action corrects the land Connie Leschin, BLM Price Field Office, 2. An indemnification clause description published on June 24, 2011 by phone at (435) 636–3610 or by e-mail protecting the United States from claims (76 FR 37145) by adding the following at [email protected]. Persons arising out of the patentee’s use, information: who use a telecommunications device occupancy, or operations on the land. 3. A limited reversionary provision On page 37146, column 1, after line for the deaf (TDD) may call the Federal stating that the title shall revert to the 5, insert the following land description: Information Relay Service (FIRS) at (800) 877–8339 to contact the above United States upon a finding, after ‘‘T. 9 N., R. 21 E., individual during normal business notice and opportunity for a hearing, Sec. 5, Lots 2, 3 & 4; S1⁄2 NW1⁄4, N1⁄2 SW1⁄4, hours. The FIRS is available 24 hours a that the patentee has not substantially and NW1⁄4 SW1⁄4 NE1⁄4. day, 7 days a week, to leave a message developed the lands in accordance with T. 10 N., R. 21 E., or questions with the above mentioned the approved plan of development on or 1 1 1 Sec. 32, S ⁄2, and S ⁄2 NW ⁄4. individual. You will receive a reply before the date 5 years after the date of The area described contains 970.88 acres, during normal business hours. conveyance. No portion of the land shall under any circumstance revert to the according to the official plat of the survey of SUPPLEMENTARY INFORMATION: The BLM the said lands, on file with the BLM.’’ has examined and found the following United States if any such portion has described public land suitable for been used for solid waste disposal or for Jesse Juen, any other purpose which may result in Acting State Director. classification and conveyance under the provisions of the R&PP Act, as amended the disposal, placement, or release of Authority: 40 CFR 1501.7; 43 CFR 1610.2. (43 U.S.C. 869 et seq.) and 43 CFR part any hazardous substance. On September 29, 2011, the land 2740. The following described land is [FR Doc. 2011–25051 Filed 9–28–11; 8:45 am] described above is segregated from all hereby classified accordingly pursuant BILLING CODE 4313–AW–P other forms of appropriation under the to the Taylor Grazing Act, as amended public land laws, including the general (43 U.S.C. 315(f)): mining laws, except for conveyance Salt Lake Meridian under the R&PP Act and leasing under T. 18 S., R. 8 E. the mineral leasing laws. The grazing Sec. 9, SE1⁄4SW1⁄4. permittees have waived the 2-year The area described contains 40 acres, more notification period in accordance with or less, in Emery County. 43 CFR 4110.4(b).

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Classification Comments: Interested EIS)for Isle Royale National Park, park’s wilderness, appropriate research parties may submit comments involving Michigan (Isle Royale). projects and field methods within the suitability of the land for a shooting DATES: The final Plan/EIS will remain wilderness, and appropriate facilities complex. Comments on the available for public review for 30 days administrative actions within the classification are restricted to whether following the publishing of the notice of wilderness. The NPS will aim to make the land is physically suited for the availability in the Federal Register by better use of research and monitoring to proposal, whether the use will the Environmental Protection Agency. guide management through the creation maximize the future use (or uses) of the ADDRESSES: The Plan/EIS is available and implementation of a coordinated land, whether the use is consistent with via the Internet through the NPS monitoring plan, and will strive to local planning and zoning, or whether Planning, Environment, and Public increase staff training and the use is consistent with State and Comment Web site (http:// accountability for wilderness Federal programs. parkplanning.nps.gov/ISRO); click on management. Application Comments: Interested the link to Wilderness and Backcountry The most obvious changes from the parties may submit comments regarding Management Plan. You may also obtain public perspective are those that the specific use proposed in the a copy of the final Plan/EIS by sending address crowding and visitor application, or any other factors not a request to the Superintendent, Isle distribution, visitor information directly related to the suitability of the Royale National Park, 800 East services, and resource conditions. land for a shooting facilities complex. Lakeshore Drive, Houghton, Michigan Several issues were presented in the Before including your address, phone 49931. draft Plan/EIS with multiple alternatives number, e-mail address, or other for goals and management actions, personal identifying information in your SUPPLEMENTARY INFORMATION: The which were developed with extensive comment, you should be aware that purpose of the Plan/EIS is to serve as a public input. These issues are: (1) your entire comment—including your public document that outlines steps for Managing overnight camping and personal identifying information—may preserving Isle Royale’s wilderness boating in Isle Royale’s wilderness and be made publicly available at any time. character, natural resources, and backcountry, including permitting and While you can ask us in your comment cultural resources while also providing information services; (2) managing day to withhold your personal identifying for the use and enjoyment of the park’s use in the park’s wilderness and information from public review, we wilderness and backcountry by current backcountry; (3) managing campfires; cannot guarantee that we will be able to and future generations. It also serves as (4) maintaining or removing the fire do so. a management document that will towers in the park’s wilderness; and (5) The BLM State Director will review provide accountability, consistency, and maintaining or removing picnic tables any adverse comments. In the absence continuity for managing Isle Royale’s from wilderness campgrounds. Chapter of any adverse comments, the wilderness and backcountry and this 2 outlines the details of all of the classification will become effective on park’s place in the NPS’s wilderness previously proposed changes, and November 28, 2011. The land will not management program. identifies the NPS preferred alternative be available for conveyance until after The Plan/EIS addresses issues and (the final, approved action alternative) the classification becomes effective. An provides guidelines for managing the for each of these issues. Environmental Assessment (DOI–BLM– wilderness and backcountry areas of the The draft Plan/EIS proposed several UT–G021–2009–0083) has been park, which encompass all areas of Isle changes in how Isle Royale’s wilderness completed with a finding of no Royale outside of the Developed and and backcountry are managed. The significant impact and is available at the Open Water Zones. This Plan/EIS preferred alternatives were crafted with address listed above. addresses a wide array of management an intention of creating one cohesive issues, and identifies specific goals, Authority: 43 CFR 2741.5(h) management program, with objectives, and decisionmaking management goals for each of several Juan Palma, guidelines for administrative actions issues being complementary, not State Director. and visitor use. In many cases this Plan/ contradictory. The planning team’s [FR Doc. 2011–25059 Filed 9–28–11; 8:45 am] EIS formalizes current NPS management intention was to respond to public BILLING CODE 4310–DQ–P practices in Isle Royale’s wilderness and interest and the concerns of subject backcountry. However, several matter experts, and incorporate the best modifications and changes are proposed science available for guiding DEPARTMENT OF THE INTERIOR that are intended to bring management preservation of Isle Royale’s resources practices on Isle Royale into better and values. General goals included National Park Service compliance with NPS policies, improve improving the quality of wilderness and visitor services, or generally improve backcountry experiences for visitors Final Wilderness and Backcountry wilderness and backcountry while still providing high public access Management Plan and Environmental management in the park. This Plan/EIS to the park for appropriate types of Impact Statement for Isle Royale does not propose any changes in the recreation. Existing facilities could be National Park, MI wilderness boundaries set forth in Isle used more efficiently, while AGENCY: National Park Service, Royale’s 1976 Wilderness Legislation. unnecessary facilities would be Department of the Interior. Adopting this Plan/EIS causes some removed from the wilderness. ACTION: Notice of Availability. changes in how the NPS manages The preferred alternatives in wilderness and backcountry in Isle combination also strive to minimize SUMMARY: Pursuant to Section 102(2)(C) Royale, some of which will be readily adverse resource impacts, in many cases of the National Environmental Policy apparent to the public, while others will improving resource conditions that are Act of 1969, 42 U.S.C. 4332(2)(C), the be primarily operational. The NPS will currently showing degradation. Since National Park Service (NPS) announces institutionalize a Minimum Isle Royale is already a difficult and the availability of a Final Wilderness Requirement process to guide and expensive park to visit, the preferred and Backcountry Management Plan and document decisions on appropriate alternatives were also crafted with an Environmental Impact Statement (Plan/ tools for maintenance activities in the interest in not further restricting general

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public access to the park. The preferred DEPARTMENT OF THE INTERIOR information about the National Natural alternative for managing overnight Landmarks Program or National Natural camping and boating on Isle Royale National Park Service Landmarks designation process and the focused on more efficiently utilizing [NPS–WASO–DPOL–0911–8477; 0004–SYP] effects of designation, contact Dr. existing camping facilities through the Margaret Brooks, Program Manager, creation of a backcountry office and Meeting of the National Park System National Natural Landmarks Program, advanced permitting. The intent is to Advisory Board National Park Service, 225 N. Commerce expand visitor services for trip planning Park Loop, Tucson, Arizona 85745, AGENCY: National Park Service, e-mail [email protected]. and reduce campground crowding to Department of the Interior. SUPPLEMENTARY INFORMATION: On improve social and resource conditions ACTION: Notice of meeting. in campgrounds. This could result in a December 1, the Board will convene its decrease in visitor access to the SUMMARY: Notice is hereby given in business meeting at 8 a.m., and adjourn backcountry for camping during the accordance with the Federal Advisory for the day at 1 p.m. During the busiest weeks of the season. The Committee Act, 5 U.S.C. Appendix, and afternoon, the Board will tour sites preferred alternative for managing day Parts 62 and 65 of title 36 of the Code within Everglades National Park. On use was crafted with an intention to of Federal Regulations, that the National December 2, the Board will reconvene allow an increase in day use and Park System Advisory Board will meet the business meeting at 8 a.m., and adjourn at 5:30 p.m. During the course concessions lodging throughout the December 1–2, 2011, in Key Largo, of the two days, the Board will be visitor season. Day tours would be Florida. The agenda will include the review of proposed actions regarding addressed by National Park Service managed to concentrate the majority of the National Historic Landmarks Director Jonathan Jarvis; briefed by day visitors close to developed and Program and the National Natural other National Park Service officials frontcountry areas of the park and Landmarks Program. Interested parties regarding education, leadership minimize adverse impacts to wilderness are encouraged to submit written development and science; deliberate character and other critical resources. comments and recommendations that and make recommendations concerning The preferred alternatives in will be presented to the Board. National Historic Landmark Program combination also aimed to minimize or Interested parties also may attend the and National Natural Landmarks reduce the impacts of development in board meeting and upon request may Program proposals; and receive status the park’s wilderness. Although the address the Board concerning an area’s briefings on matters pending before preferred alternative for overnight use national significance. committees of the Board. would add one additional campsite at DATES: (a) Written comments regarding A. National Historic Landmarks (NHL) North Desor campground and a few any proposed National Historic Program rustic cabins in Rock Harbor, and the Landmarks matter or National Natural NHL Program matters will be preferred alternative for day use would Landmarks matter listed in this notice considered at the business meeting on add three to five miles of new trail, no will be accepted by the National Park the morning of December 1, during new campgrounds would be constructed Service until November 28, 2011 (b) The which the Board may consider the other than those approved in the park’s Board will meet on December 1–2, 2011. Location: The meeting will be held in following: General Management Plan, up to two the Largo Key Ballroom of the Key Largo fire towers would be removed, and Nominations for New NHL Designations Bay Marriott Beach Resort, 103800 campfire rings would be located only Overseas Highway, MM 103.8, Key Arizona where resource conditions could Largo, Florida 33037, telephone 305– • tolerate the associated impacts. Fort Apache and Theodore 453–0000. Roosevelt School, Fort Apache, AZ. The Plan/EIS involves analysis of Information: (a) For information • 1956 Grand Canyon TWA–United current conditions in the park and the concerning the National Park System Airlines Aviation Accident Site, Grand likely impacts of implementing each of Advisory Board or to request to address Canyon NP, AZ. the alternatives, considering impacts to the Board, contact Shirley Sears Smith, visitor use and experiences, wilderness Office of Policy, National Park Service, California character, natural resources, cultural 1201 I Street, NW., 12th Floor, • Carrizo Plain Archeological District, resources, socioeconomics, and NPS Washington, DC 20005, telephone 202– San Luis Obispo County, CA. operations and administration. In 354–3955, e-mail • Nuestra Sen˜ ora Reina De La Paz, _ _ general, each of the alternatives would Shirley S [email protected]. (b) To submit Kern County, CA. be expected to result in both beneficial a written statement specific to, or • Drakes Bay Historic and and adverse impacts to park resources request information about, any National Archeological District, Marin County, Historic Landmarks matter listed below, and values. CA. or for information about the National FOR FURTHER INFORMATION CONTACT: Historic Landmarks Program or National Colorado Contact Superintendent Phyllis Green, Historic Landmarks designation process • Trujillo Homesteads, Alamosa Isle Royale National Park, at the address and the effects of designation, contact J. County, CO. above or by telephone at 906–482–0984. Paul Loether, Chief, National Register of Historic Places and National Historic Florida Dated: May 17, 2011. Landmarks Program, National Park • Florida Southern College Historic Michael T. Reynolds, Service, 1849 C Street, NW. (2280), District, Lakeland, FL. Regional Director, Midwest Region. Washington, DC 20240, e-mail [FR Doc. 2011–25062 Filed 9–28–11; 8:45 am] [email protected]. (c) To submit a Indiana BILLING CODE 4312–92–P written statement specific to, or request • Akima Pinsˇiwa A Wiiki (Chief Jean- information about, any National Natural Baptiste De Richardville House), Fort Landmarks matter listed below, or for Wayne, IN.

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Michigan allotted time. Before including your Environmental Resources Division, • Meadow Brook Hall, Rochester, MI. address, telephone number, e-mail Bureau of Reclamation, P.O. Box 25007, address, or other personal identifying Denver, Colorado 80225–0007; Montana information in your comment, you telephone 303–445–2888. • Deer Medicine Rocks, Rosebud should be aware that your entire SUPPLEMENTARY INFORMATION: Consistent County, MT. comment—including your personal with section 9(f) of the Reclamation identifying information—may be made Project Act of 1939 and the rules and New Mexico publicly available at any time. While regulations published in 52 FR 11954, • Mission San Jose´ de Los Je´mez and you can ask us in your comment to April 13, 1987 (43 CFR 426.22), Gı´usewa Pueblo Site, Sandoval County, withhold your personal identifying Reclamation will publish notice of NM. information from public review, we proposed or amendatory contract cannot guarantee that we will be able to New York actions for any contract for the delivery do so. of project water for authorized uses in • Gardner Earl Memorial Chapel and Draft minutes of the meeting will be newspapers of general circulation in the Crematorium, Troy, NY. available for public inspection about 12 • affected area at least 60 days prior to Montauk Point Lighthouse, Suffolk weeks after the meeting in the 12th floor contract execution. Announcements County, NY. conference room, 1201 I Street, NW., may be in the form of news releases, • The Town Hall, New York, NY. Washington, DC. • legal notices, official letters, USS Slater, Albany, NY Dated: September 23, 2011. memorandums, or other forms of Pennsylvania Bernard Fagan, written material. Meetings, workshops, • Braddock Carnegie Library, Chief, Office of Policy. and/or hearings may also be used, as Braddock, PA. [FR Doc. 2011–25046 Filed 9–28–11; 8:45 am] appropriate, to provide local publicity. BILLING CODE 4312–52–P The public participation procedures do Puerto Rico not apply to proposed contracts for the • Bacardi Distillery, Catano, PR. sale of surplus or interim irrigation DEPARTMENT OF THE INTERIOR water for a term of 1 year or less. Either Virginia of the contracting parties may invite the • Eyre Hall, Northampton County, Bureau of Reclamation public to observe contract proceedings. All public participation procedures will VA. Status Report of Water Service, • be coordinated with those involved in Saint Peter’s Parish Church, New Repayment, and Other Water-Related complying with the National Kent County, VA. Contract Actions Environmental Policy Act. Pursuant to Proposed Amendments to Existing NHL AGENCY: Bureau of Reclamation, the ‘‘Final Revised Public Participation Designation Interior. Procedures’’ for water resource-related • Fort Benton Historic District, Fort ACTION: Notice. contract negotiations, published in 47 Benton, MT (updated documentation FR 7763, February 22, 1982, a tabulation and boundary clarification). SUMMARY: Notice is hereby given of is provided of all proposed contractual contractual actions that have been actions in each of the five Reclamation B. National Natural Landmarks (NNL) proposed to the Bureau of Reclamation regions. When contract negotiations are Program and are new, modified, discontinued, or completed, and prior to execution, each NNL Program matters will be completed since the last publication of proposed contract form must be considered at the business meeting on this notice on July 27, 2011. From the approved by the Secretary of the the morning of December 1, during date of this publication, future notices Interior, or pursuant to delegated or which the Board may consider the during this calendar year will be limited redelegated authority, the Commissioner following: to new, modified, discontinued, or of Reclamation or one of the regional completed contract actions. This notice Nominations for New NNL Designations directors. In some instances, is one of a variety of means used to congressional review and approval of a California inform the public about proposed report, water rate, or other terms and • Lake Shasta Caverns, Shasta contractual actions for capital recovery conditions of the contract may be County, CA. and management of project resources involved. and facilities consistent with section 9(f) Public participation in and receipt of West Virginia of the Reclamation Project Act of 1939. comments on contract proposals will be • Ice Mountain, Hampshire County, Additional announcements of facilitated by adherence to the following WV. individual contract actions may be procedures: The board meeting will be open to the published in the Federal Register and in 1. Only persons authorized to act on public. The order of the agenda may be newspapers of general circulation in the behalf of the contracting entities may changed, if necessary, to accommodate areas determined by Reclamation to be negotiate the terms and conditions of a travel schedules or for other reasons. affected by the proposed action. specific contract proposal. Space and facilities to accommodate the ADDRESSES: The identity of the 2. Advance notice of meetings or public are limited and attendees will be approving officer and other information hearings will be furnished to those accommodated on a first-come basis. pertaining to a specific contract parties that have made a timely written Anyone may file with the Board a proposal may be obtained by calling or request for such notice to the written statement concerning matters to writing the appropriate regional office at appropriate regional or project office of be discussed. The Board also will the address and telephone number given Reclamation. permit attendees to address the Board, for each region in the SUPPLEMENTARY 3. Written correspondence regarding but may restrict the length of the INFORMATION section. proposed contracts may be made presentations, as necessary to allow the FOR FURTHER INFORMATION CONTACT: available to the general public pursuant Board to complete its agenda within the Michelle Kelly, Water and to the terms and procedures of the

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Freedom of Information Act, as The Pacific Northwest Region has no Completed Contract Actions amended. updates to report for this quarter. 15. Montecito WD, Cachuma Project, 4. Written comments on a proposed Mid-Pacific Region: Bureau of California: Contract to transfer title of contract or contract action must be Reclamation, 2800 Cottage Way, the distribution system to the District. submitted to the appropriate regional Sacramento, California 95825–1898, Title transfer authorized by Public Law officials at the locations and within the telephone 916–978–5250. 108–315, ‘‘Carpinteria and Montecito time limits set forth in the advance New Contract Actions Water Distribution Conveyance Act of public notices. 2004.’’ Title transfer was completed on 47. Contra Costa WD, CVP, California: 5. All written comments received and May 7, 2010. Amendment to an existing O&M testimony presented at any public 18. A Canal Fish Screens, Klamath agreement to transfer O&M of the Contra hearings will be reviewed and Project, Oregon: Negotiation of an O&M Costa Rock Slough Fish Screen to the summarized by the appropriate regional contract for the A Canal Fish Screens District. Initial construction funding office for use by the contract approving with Klamath ID. Contract executed on provided through ARRA. authority. February 9, 2011. 6. Copies of specific proposed 48. San Luis and Delta-Mendota Lower Colorado Region: Bureau of contracts may be obtained from the Water Authority, CVP, California: Reclamation, P.O. Box 61470 (Nevada appropriate regional director or his or Amendment to an existing O&M Highway and Park Street), Boulder City, her designated public contact as they agreement to transfer O&M of the Delta- Nevada 89006–1470, telephone 702– become available for review and Mendota Canal California Aqueduct 293–8192. comment. Intertie Project to the Authority. Initial 7. In the event modifications are made construction funding provided through New Contract Action in the form of a proposed contract, the ARRA. 18. Verizon California Inc., BCP, appropriate regional director shall 49. Irrigation water districts, Arizona: Proposed Acknowledgement determine whether republication of the individual irrigators and M&I water No. 2 to Contract No. 14–06–300–2505 notice and/or extension of the comment users, CVP, California: Temporary water to acknowledge a name change from period is necessary. service contracts for terms not to exceed Verizon California Inc., to Frontier Factors considered in making such a 1 year for up to 100,000 acre-feet of Communications West Coast Inc. determination shall include, but are not surplus supplies of CVP water resulting Upper Colorado Region: Bureau of limited to, (i) The significance of the from an unusually large water supply, Reclamation, 125 South State Street, modification, and (ii) the degree of not otherwise storable for project Room 6107, Salt Lake City, Utah 84138– public interest which has been purposes, or from infrequent and 1102, telephone 801–524–3864. expressed over the course of the otherwise unmanaged flood flows of The Upper Colorado Region has no negotiations. At a minimum, the short duration. updates to report for this quarter. regional director will furnish revised 50. Irrigation water districts, Great Plains Region: Bureau of contracts to all parties who requested individual irrigators, M&I and Reclamation, P.O. Box 36900, Federal the contract in response to the initial miscellaneous water users, California: Building, 316 North 26th Street, public notice. Temporary Warren Act contracts for Billings, Montana 59101, telephone terms up to 5 years providing for use of 406–247–7752. Definitions of Abbreviations Used in excess capacity in CVP facilities for this Document annual quantities exceeding 10,000 New Contract Actions ARRA—American Recovery and acre-feet. 49. Southeastern Colorado Water Reinvestment Act of 2009 51. Tehama-Colusa Canal Authority, Conservancy District, Fryingpan- BCP—Boulder Canyon Project CVP, California: Proposed transfer of Arkansas Project, Colorado: Reclamation—Bureau of Reclamation O&M of the Red Bluff Fish Screen Consideration of amendatory contract CAP—Central Arizona Project Project facilities to the Authority. and/or contract amendments. CVP—Central Valley Project 52. City of Redding, CVP, California: 50. Donala Water and Sanitation CRSP—Colorado River Storage Project Proposed partial assignment of 30 acre- District, Fryingpan-Arkansas Project, FR—Federal Register feet of the City of Redding’s CVP water Colorado: Consideration of a short- or IDD—Irrigation and Drainage District supply to the City of Shasta Lake for long-term excess capacity contract. ID—Irrigation District M&I use. 51. Kensington Partners, Green LCWSP—Lower Colorado Water Supply 53. Langell Valley ID, Klamath Mountain Reservoir, Colorado-Big Project Project; Oregon: Title transfer of lands Thompson Project, Colorado: M&I—Municipal and Industrial and facilities of the Klamath Project. Consideration of an amendment to the NMISC—New Mexico Interstate Stream 54. Virginia L. Lempesis Separate existing contract to reduce the amount Commission Property Trust, CVP, California: of water service by 225 acre-feet of O&M—Operation and Maintenance Contract for the adjustment and municipal/domestic water and assign P–SMBP—Pick-Sloan Missouri Basin settlement of certain claimed water the water to the Upper Eagle Regional Program rights in the Fresno Slough tributary to Water Authority. PPR—Present Perfected Right the San Joaquin River in fulfillment of RRA—Reclamation Reform Act of 1982 such rights pursuant to contract No. I1r- Completed Contract Actions SOD—Safety of Dams 1145 for the Purchase of Miller & Lux 11. Security Water and Sanitation SRPA—Small Reclamation Projects Act Water Rights, dated July 27, 1939. District, Fryingpan-Arkansas Project, of 1956 Colorado: Consideration of a request for USACE—U.S. Army Corps of Engineers Modified Contract Action a long-term contract for the use of WD—Water District 13. Byron-Bethany ID, CVP, excess capacity in the Fryingpan- Pacific Northwest Region: Bureau of California: Long-term operational Arkansas Project. Contract executed on Reclamation, 1150 North Curtis Road, exchange contract for exchange of May 4, 2011. Suite 100, Boise, Idaho 83706–1234, nonproject water in the Delta-Mendota 12. City of Fountain, Fryingpan- telephone 208–378–5344. Canal. Arkansas Project, Colorado:

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Consideration of a request for a long- Highland Surprise Mining Company; check in that amount to the Consent term contract for the use of excess and Nevada-Stewart Mining Company. Decree Library at the stated address. capacity in the Fryingpan-Arkansas The Complaint alleges that the Robert E. Maher, Jr., Project. Contract executed May 4, 2011. Defendants are liable pursuant to 16. Pueblo West Metropolitan District, Assistant Section Chief, Environmental Section 107(a) of CERCLA for response Enforcement Section, Environment and Pueblo West, Fryingpan-Arkansas costs incurred and to be incurred by the Natural Resources Division. Project, Colorado: Consideration of a United States and for natural resources [FR Doc. 2011–25036 Filed 9–28–11; 8:45 am] request for a long-term contract for the damages in connection with releases of BILLING CODE 4410–15–P use of excess capacity in the Fryingpan- hazardous substances at or from Arkansas Project. Contract executed Operable Unit 3 of the Bunker Hill May 4, 2011. Mining and Metallurgical Complex DEPARTMENT OF JUSTICE 34. Colorado Springs Utilities, Superfund Site (‘‘Site’’) in northern Fryingpan-Arkansas Project, Colorado: Idaho. The Coeur d’Alene Tribe is a co- Notice of Lodging of Consent Decree Consideration of a request for a long- trustee of injured natural resources and Under the Comprehensive term contract for the use of excess a party to the proposed Consent Decree. Environmental Response, capacity in the Fryingpan-Arkansas The Consent Decree requires payments Compensation, and Liability Act Project and annual repayment for the totaling $208,500, based on the Notice is hereby given that on operation, maintenance, and defendant’s financial resources. The replacement costs of the single-purpose September 23, 2011, a proposed Consent Consent Decree also requires, among Decree in United States v. TRAC municipal works. Contract executed on other things, that Defendants assign May 4, 2011. Enterprises, LLC, Civil Action No. 2:11– their interests in insurance policies to a cv–00652, was lodged with the United 35. Garrison Diversion Conservancy trust, established for the benefit of EPA District, Garrison Diversion Project, States District Court for the Southern and the natural resource trustees, and District of West Virginia. North Dakota: Intent to enter into pay two percent of net smelter returns temporary or interim irrigation or In this cost recovery action, brought generated from any future mining pursuant to Section 107 of the miscellaneous use water service activities. The Consent Decree grants the Comprehensive Environmental contracts to provide up to 1,000 acre- Defendants a covenant not to sue for Response, Compensation, and Liability feet of water annually for terms of up to response costs, as well as natural Act of 1980, as amended (‘‘CERCLA’’), 5 years. Contract executed on June 9, resource damages, in connection with 42 U.S.C. 9607, the United States, on 2011. the Site. 45. Frenchman Valley ID, P–SMBP, behalf of the Administrator of the Nebraska: Consideration of a request to For thirty (30) days after the date of United States Environmental Protection amend the water service contract to this publication, the Department of Agency (‘‘EPA’’), sought reimbursement change the billing due date to better Justice will receive comments relating to of costs incurred by EPA for response account for when assessments are paid the Consent Decree. Comments should actions taken at or in connection with to the District. Contract executed on be addressed to the Assistant Attorney the release or threatened release of June 29, 2011. General, Environment and Natural hazardous substances at the Custom Resources Division, and either e-mailed Plating and Polishing Site (‘‘the Site’’) in Dated: August 17, 2011. to [email protected] or Dunbar, Kanawha County, West Roseann Gonzales, mailed to P.O. Box 7611, U.S. Virginia. Director, Policy and Administration. Department of Justice, Washington, DC The complaint alleged that EPA [FR Doc. 2011–25002 Filed 9–28–11; 8:45 am] 20044–7611. In either case, the conducted an emergency removal action BILLING CODE 4310–MN–P comments should refer to United States at the Site to address chemicals and and Coeur d’Alene Tribe v. Alice wastes used in and generated by the Consolidated Mines, Inc., et al. Civ. No. electroplating and metal refinishing DEPARTMENT OF JUSTICE 11–00446–REB, and D.J. Ref. Nos. 90– business that were found at the Site, 11–3–128/13 and 90–11–3–128/14. including ‘‘hazardous substances’’ Notice of Lodging of Consent Decree within the meaning of Section 101(14) Under the Comprehensive During the comment period, the of CERCLA, 42 U.S.C. 9601(14). Environmental Response, Consent Decree may be examined on the Under the proposed Consent Decree, Compensation, and Liability Act following Department of Justice Web TRAC Enterprises, LLC, the owner of (CERCLA) site: http://www.usdoj.gov/enrd/ the Site, will pay a total of $72,000 to Consent_Decrees.html. A copy of the the Hazardous Substance Superfund, in Notice is hereby given that on Consent Decree may also be obtained by reimbursement of EPA’s past response September 22, 2011, a proposed Consent mail from the Consent Decree Library, costs incurred through the date of entry Decree in United States and Coeur P.O. Box 7611, U.S. Department of of the Consent Decree. This amount was d’Alene Tribe v. Alice Consolidated Justice, Washington, DC 20044–7611, or determined based on an analysis of Mines, Inc., et al., Civ. No. 11–00446– by faxing or e-mailing a request to Tonia TRAC Enterprise’s ability to pay. REB, was lodged with the United States Fleetwood ([email protected]), The Department of Justice will receive District Court for the District of Idaho. fax no. (202) 514–0097, phone for a period of thirty (30) days from the Concurrently with the proposed confirmation number (202) 514–1547. In date of this publication comments Consent Decree, the United States and requesting a copy from the Consent relating to the Consent Decree. the Coeur d’Alene Tribe filed a Decree Library, please enclose a check Comments should be addressed to the complaint naming seven defendants: in the amount of $11.00 (Consent Decree Assistant Attorney General, Alice Consolidated Mines, Inc.; without attachments) or $211.25 Environment and Natural Resources Hypotheek Mining and Milling (Consent Decree with attachments) (25 Division, and either e-mailed to Company; Callahan Consolidated cents per page reproduction cost) [email protected] or Mines, Inc.; Constitution Mining payable to the United States Treasury mailed to P.O. Box 7611, U.S. Company; Golconda Mining Corp.; or, if by e-mail or fax, please forward a Department of Justice, Washington, DC

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20044–7611, and should refer to United NC; Botanical Resources Australia, Holland, OH; Precision Valve States v. TRAC Enterprises, LLC, Civil Sandy Bay, Tasmania, Australia; Corporation, Yonkers, NY; The Procter Action No. 2:11–cv–00652, D.J. Cheminova Inc., Arlington, VA; DuPont & Gamble Company, Cincinnati, OH; Reference Number 90–11–3–09958. Crop Protection, Newark, DE; FMC Reckitt Benckiser, LLC, Parsippany, NJ; During the public comment period, Corporation, Philadelphia, PA; LG Life S.C. Johnson & Son, Inc., Racine, WI; the Consent Decree may also be Sciences, Ltd., Clifton, VA; McLaughlin and Summit Packaging Systems, Inc., examined on the following Department Gormley King Company, Minneapolis, Manchester, NY. of Justice Web site, to http://www.usdoj. MN; Meghmani, c/o Chemical The general area of PARG’s planned gov/enrd/Consent_Decrees.html. A copy Consultants International, Inc., Stilwell, activity is to generate tests, studies, of the Consent Decree may also be KS; S.C. Johnson & Son, Inc., Racine, assays, analyses, compilations, and obtained by mail from the Consent WI; Sumitomo Chemical Co., Ltd., other information regarding the Decree Library, P.O. Box 7611, U.S. Tokyo, Japan; Syngenta Crop Protection, transportation, manufacturing, and Department of Justice, Washington, DC LLC, Greensboro, NC; Valent storage of plastic aerosol containers 20044–7611 or by faxing or e-mailing a BioSciences Corporation, Libertyville, used to store specialty chemical request to Tonia Fleetwood (tonia. IL; and Wellmark International (Central household, personal care, and food and [email protected]), fax no. (202) 514– Life Sciences), Schaumburg, IL. beverage products. PARG may work 0097, phone confirmation number (202) The general area of CAPHRA’s with a standard setting organization that 514–1547. If requesting a copy from the planned activity is to generate and may develop a document to meet Consent Decree Library by mail, please submit to the U.S. Environmental standardization needs for such enclose a check in the amount of $6.00 Protection Agency (‘‘EPA’’) studies containers. Any standard developed (25 cents per page reproduction cost for necessary to address EPA’s concerns for would be informational and advisory 24 pages) payable to the U.S. Treasury the potential for age-dependent only, and its use would be entirely or, if requesting by email or fax, forward sensitivity to Pyrethroids. voluntary. a check in that amount to the Consent Patricia A. Brink, Patricia A. Brink, Decree Library at the address given Director of Civil Enforcement, Antitrust Director of Civil Enforcement, Antitrust above. Division. Division. Robert D. Brook, [FR Doc. 2011–24874 Filed 9–28–11; 8:45 am] [FR Doc. 2011–24875 Filed 9–28–11; 8:45 am] Assistant Chief, Environmental Enforcement BILLING CODE 4410–11–M BILLING CODE 4410–11–M Section, Environment and Natural Resources Division. [FR Doc. 2011–25041 Filed 9–28–11; 8:45 am] DEPARTMENT OF JUSTICE FOREIGN CLAIMS SETTLEMENT BILLING CODE 4410–15–P COMMISSION Antitrust Division [F.C.S.C. Meeting and Hearing Notice No. 9–11] DEPARTMENT OF JUSTICE Notice Pursuant to the National Cooperative Research and Production Sunshine Act Meeting Antitrust Division Act of 1993—Plastic Aerosol Research Group, L.L.C. The Foreign Claims Settlement Notice Pursuant to the National Commission, pursuant to its regulations Notice is hereby given that, on August Cooperative Research and Production (45 CFR Part 503.25) and the 29, 2011, pursuant to Section 6(a) of the Act of 1993; Council for the Government in the Sunshine Act (5 National Cooperative Research and Advancement of Pyrethroid Human U.S.C. 552b), hereby gives notice in Production Act of 1993, 15 U.S.C. 4301 Risk Assessment, L.L.C. regard to the scheduling of open et seq. (‘‘the Act’’), Plastic Aerosol meetings as follows: Notice is hereby given that, on August Research Group, L.L.C. (‘‘PARG’’) has Wednesday, October 5, 2011: 10 29, 2011, pursuant to Section 6(a) of the filed written notifications a.m.—Oral hearings on objections to National Cooperative Research and simultaneously with the Attorney Commission’s Proposed Decisions in Production Act of 1993, 15 U.S.C. 4301 General and the Federal Trade Claim No. LIB–II–016; 11 a.m.—Claim et seq. (‘‘the Act’’), Council for the Commission disclosing (1) the identities Nos. LIB–II–125, LIB–II–126 and LIB–II– Advancement of Pyrethroid Human Risk of the parties to the venture and (2) the 127; 3 p.m.—LIB–II–128, LIB–II–129, Assessment, L.L.C. (‘‘CAPHRA’’) has nature and objectives of the venture. LIB–II–130 and LIB–II–131. filed written notifications The notifications were filed for the 2 p.m.—Issuance of Proposed simultaneously with the Attorney purpose of invoking the Act’s provisions Decisions in claims against Libya General and the Federal Trade limiting the recovery of antitrust Status: Open. Commission disclosing (1) The plaintiffs to actual damages under All meetings are held at the Foreign identities of the parties to the venture specified circumstances. Claims Settlement Commission, 600 E and (2) the nature and objectives of the Pursuant to Section 6(b) of the Act, Street, NW., Washington, DC. Requests venture. The notifications were filed for the identities of the parties to the for information, or advance notices of the purpose of invoking the Act’s venture are: Aerofil Technology Inc, intention to observe an open meeting, provisions limiting the recovery of Sullivan, MO; Aptar Beauty & Home, may be directed to: Judith H. Lock, antitrust plaintiffs to actual damages Cary, IL; Berry Plastics Corporation, Executive Officer, Foreign Claims under specified circumstances. Evansville, IN; Clorox Service Company, Settlement Commission, 600 E Street, Pursuant to Section 6(b) of the Act, Ocala, FL; Diversified CPC NW., Suite 6002, Washington, DC the identities of the parties to the International, Inc., Channahon, IL; 20579. Telephone: (202) 616–6975. venture are: AMVAC Chemical Formulated Solutions, LLC, Largo, FL; Corporation, Commerce, CA; BASF Graham Packaging Company, L.P., York, Jaleh F. Barrett, Corporation, Durham, NC; Bayer Animal PA; I–K–I Manufacturing Co., Inc., Chief Counsel. Science, Pittsburgh, PA; Bayer Edgerton, WI; KIK Custom Products, [FR Doc. 2011–25125 Filed 9–26–11; 4:15 pm] CropScience, Research Triangle Park, Danville, IL; Plastic Technologies, Inc., BILLING CODE 4410–BA–P

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DEPARTMENT OF JUSTICE DEPARTMENT OF LABOR the benefit of employee benefit plans whose assets are maintained in pooled Office of Justice Programs Office of the Secretary separate accounts managed by insurance companies. This exemption provides Agency Information Collection [OJP (NIJ) Docket No. 1569] relief from certain prohibitions in Activities; Submission for OMB Employee Retirement Income Security National Institute of Justice Interview Review; Comment Request; Employee Act of 1974 (ERISA) section 406(b) and Room Recording Systems and License Retirement Income Security Act from the taxes imposed by Internal Plate Readers Workshop Prohibited Transaction Exemption 86– Revenue Code of 1986 (the Code) 128 section 4975(a) and (b) by reason of AGENCY: National Institute of Justice. Code section 4975(c)(1)(E) or (F). ACTION: Notice. ACTION: Notice of the Interview Room In order to insure that the exemption Recording Systems and License Plate SUMMARY: The Department of Labor is not abused, that the rights of Readers Workshops. (DOL) is submitting the Employee participants and beneficiaries are Benefits Security Administration protected, and that the exemption’s SUMMARY: The National Institute of sponsored information collection conditions are being complied with, the Justice (NIJ) and the International request (ICR) titled, ‘‘Employee class exemption imposes the following Association of Chiefs of Police (IACP) Retirement Income Security Act information collection requirements on are hosting two workshops in Prohibited Transaction Exemption 86– fiduciaries of employee benefit plans conjunction with the 118th Annual 128,’’ to the Office of Management and that effect or execute securities IACP Conference in Chicago, Ill. The Budget (OMB) for review and approval transactions (broker-dealers) and the focus of the workshops is the for continued use in accordance with independent plan fiduciary authorizing development of NIJ performance the Paperwork Reduction Act (PRA) of the plan to engage in the transactions standards for Interview Room Recording 1995 (44 U.S.C. 3501 et seq.). with the broker-dealer (authorizing Systems and License Plate Readers used DATES: Submit comments on or before fiduciary) under the conditions by law enforcement agencies. Sessions October 31, 2011. contained in the exemption: (1) The are intended to inform manufacturers, ADDRESSES: A copy of this ICR with authorizing plan fiduciary must provide test laboratories, certification bodies and applicable supporting documentation; the broker-dealer with an advance other interested parties of these including a description of the likely written authorization for the standards development efforts. respondents, proposed frequency of transactions; (2) the broker-dealer must Attendees in each workshop will be response, and estimated total burden provide the authorizing fiduciary with provided with an overview of the NIJ may be obtained from the RegInfo.gov information necessary to determine standards development process, work to Web site, http://www.reginfo.gov/ whether an authorization should be date on the effort and a projected public/do/PRAMain, on the day made, including a copy of the timeline for completion. following publication of this notice or exemption, a form for termination, a description of the broker-dealer’s Please access the following webpage by contacting Michel Smyth by telephone at 202–693–4129 (this is not brokerage placement practices, and any to register for the Interview Room Video other reasonably available information Systems workshop: http:// a toll-free number) or sending an e-mail to [email protected]. regarding the matter that the authorizing www.surveymonkey.com/s/ fiduciary requests; (3) the broker-dealer interviewroom_workshop_reg. Submit comments about this request to the Office of Information and must provide the authorizing fiduciary Please access the following webpage Regulatory Affairs, Attn: OMB Desk with an annual termination form, at to register for the License Plate Reader Officer for the Department of Labor, least annually, explaining that the workshop: http:// Employee Benefits Security authorization is terminable at will, www.surveymonkey.com/s/ Administration, Office of Management without penalty to the plan, and that _ _ ALPR workshop reg. and Budget, Room 10235, Washington, failure to return the form will result in Note: The meeting room capacity is limited DC 20503, Telephone: 202–395–6929/ continued authorization for the broker- to 80 attendees per session and registration Fax: 202–395–6881 (these are not toll- dealer to engage in securities will close once this limit is reached. free numbers), e-mail: transactions on behalf of the plan; (4) [email protected]. the broker-dealer must provide the DATES: Both workshops will be held on authorizing fiduciary with either (a) a FOR FURTHER INFORMATION: Saturday, Oct. 22, 2011. The session for Contact conformation slip for each individual Interview Room Recording Systems will Michel Smyth by telephone at 202–693– securities transaction within 10 days of take place from 8 to 9:30 a.m. The 4129 (this is not a toll-free number) or the transaction containing the by e-mail at License Plate Reader session will take _ _ information described in Rule 10b– place from 10 to 11:30 a.m. DOL PRA [email protected]. 10(a)(1–7) under the Securities SUPPLEMENTARY INFORMATION: Prohibited Exchange Act of 1934, 17 CFR 240.10b– ADDRESSES: The workshops will take Transaction Class Exemption 86–128 10 or (b) a quarterly report containing place at the Exchange Meeting Room of permits persons who serve as fiduciaries certain financial information including the InterContinental Chicago, 505 N. for employee benefit plans to effect or the total of all transaction-related Michigan Ave., Chicago, IL 60611. execute securities transactions on behalf charges incurred by the plan; (5) the FOR FURTHER INFORMATION CONTACT: Ian of employee benefit plans. The broker-dealer must provide the Hamilton at [email protected]. exemption also allows sponsors of authorizing fiduciary with an annual pooled separate accounts and other summary of the confirmation slips or John H. Laub, pooled investment funds to use their quarterly reports, containing all security Director, National Institute of Justice. affiliates to effect or execute securities transaction-related charges, the [FR Doc. 2011–25099 Filed 9–28–11; 8:45 am] transactions for such accounts in order brokerage placement practices, and a BILLING CODE 4410–18–P to recapture brokerage commissions for portfolio turnover ratio; and (6) a

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broker-dealer who is a discretionary • Enhance the quality, utility, and may be obtained from the RegInfo.gov plan trustee must provide the clarity of the information to be Web site, http://www.reginfo.gov/ authorizing fiduciary with an annual collected; and public/do/PRAMain, on the day report showing separately the • Minimize the burden of the following publication of this notice or commissions paid to affiliated brokers collection of information on those who by contacting Michel Smyth by and non-affiliated brokers, on both a are to respond, including through the telephone at 202–693–4129 (this is not total dollar basis and a cents-per-share use of appropriate automated, a toll-free number) or sending an e-mail basis. These requirements are designed electronic, mechanical, or other to [email protected]. as appropriate safeguards to ensure the technological collection techniques or Submit comments about this request protection of the plan assets involved in other forms of information technology, to the Office of Information and the transactions, which, in the absence e.g., permitting electronic submission of Regulatory Affairs, Attn: OMB Desk of the class exemption, would not be responses. Officer for the Department of Labor, permitted. These safeguards rely on the Agency: Employee Benefits Security Office of Workers’ Compensation prior authorization and monitoring of Administration. Programs (OWCP), Office of the broker-fiduciary’s activities by a Title of Collection: Employee Management and Budget, Room 10235, second plan fiduciary that is Retirement Income Security Act Washington, DC 20503, Telephone: independent of the first. Prohibited Transaction Exemption 86– 202–395–6929/Fax: 202–395–6881 128. (these are not toll-free numbers), e-mail: This information collection is subject OMB Control Number: 1210–0059. _ to the PRA. A Federal agency generally OIRA [email protected]. Affected Public: Private Sector— For Further Information: Contact cannot conduct or sponsor a collection Businesses or other for-profits and not- of information, and the public is Michel Smyth by telephone at 202–693– for-profit institutions. 4129 (this is not a toll-free number) or generally not required to respond to an Total Estimated Number of information collection, unless it is by e-mail at Respondents: 27,900. [email protected]. approved by the OMB under the PRA Total Estimated Number of and displays a currently valid OMB Responses: 1,199,880. SUPPLEMENTARY INFORMATION: The Control Number. In addition, Total Estimated Annual Burden Miner’s Claim for Benefits Under the notwithstanding any other provisions of Hours: 63,800. Black Lung Benefits Act Form (Form law, no person shall generally be subject Total Estimated Annual Other Costs CM–911) is the standard application to penalty for failing to comply with a Burden: $736,800. form filed by the miner for benefits collection of information if the Dated: September 22, 2011. under the Black Lung Benefits Act. All collection of information does not applicants, both miners and survivors, Michel Smyth, display a valid OMB Control Number. complete the Employment History See 5 CFR 1320.5(a) and 1320.6. The Departmental Clearance Officer. (Form CM–911a) to list the coal miner’s DOL obtains OMB approval for this [FR Doc. 2011–25044 Filed 9–28–11; 8:45 am] work history. information collection under OMB BILLING CODE 4510–29–P This information collection is subject Control Number 1210–0059. The current to the PRA. A Federal agency generally OMB approval is scheduled to expire on cannot conduct or sponsor a collection September 30, 2011; however, it should DEPARTMENT OF LABOR of information, and the public is be noted that existing information Office of the Secretary generally not required to respond to an collection requirements submitted to the information collection, unless it is OMB receive a month-to-month Agency Information Collection approved by the OMB under the PRA extension while they undergo review. Activities; Submission for OMB and displays a currently valid OMB For additional information, see the Review; Comment Request; Miner’s Control Number. In addition, related notice published in the Federal Claim for Benefits Under the Black notwithstanding any other provisions of Register on May 24, 2011 (76 FR 30199). Lung Benefits Act and Employment law, no person shall generally be subject Interested parties are encouraged to History to penalty for failing to comply with a send comments to the OMB, Office of collection of information if the Information and Regulatory Affairs at ACTION: Notice. collection of information does not the address shown in the ADDRESSES display a valid OMB Control Number. SUMMARY: The Department of Labor See 5 CFR 1320.5(a) and 1320.6. The section within 30 days of publication of (DOL) is submitting the Office of this notice in the Federal Register. In DOL obtains OMB approval for this Workers’ Compensation Programs information collection under OMB order to help ensure appropriate (OWCP) sponsored information consideration, comments should Control Number 1240–0038. The current collection request (ICR) titled, ‘‘Miner’s OMB approval is scheduled to expire on reference OMB Control Number 1210– Claim for Benefits Under the Black Lung 0059. The OMB is particularly September 30, 2011; however, it should Benefits Act and Employment History,’’ be noted that existing information interested in comments that: to the Office of Management and Budget • collection requirements submitted to the Evaluate whether the proposed (OMB) for review and approval for OMB receive a month-to-month collection of information is necessary continued use in accordance with the extension while they undergo review. for the proper performance of the Paperwork Reduction Act (PRA) of 1995 For additional information, see the functions of the agency, including (44 U.S.C. 3501 et seq.). related notice published in the Federal whether the information will have DATES: Submit comments on or before Register on May 3, 2011 (76 FR 24918). practical utility; October 31, 2011. Interested parties are encouraged to • Evaluate the accuracy of the ADDRESSES: A copy of this ICR with send comments to the OMB, Office of agency’s estimate of the burden of the applicable supporting documentation; Information and Regulatory Affairs at proposed collection of information, including a description of the likely the address shown in the ADDRESSES including the validity of the respondents, proposed frequency of section within 30 days of publication of methodology and assumptions used; response, and estimated total burden this notice in the Federal Register. In

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order to help ensure appropriate collection request (ICR) titled, DOL obtains OMB approval for this consideration, comments should ‘‘Representative Payee Report, information collection under OMB reference OMB Control Number 1240– Representative Payee Report, Short Control Number 1240–0020. The current 0038. The OMB is particularly Form, Physician’s/Medical Officer’s OMB approval is scheduled to expire on interested in comments that: Statement,’’ to the Office of September 30, 2011; however, it should • Evaluate whether the proposed Management and Budget (OMB) for be noted that existing information collection of information is necessary review and approval for continued use collection requirements submitted to the for the proper performance of the in accordance with the Paperwork OMB receive a month-to-month functions of the agency, including Reduction Act (PRA) of 1995 (44 U.S.C. extension while they undergo review. whether the information will have 3501 et seq.). For additional information, see the practical utility; DATES: Submit comments on or before related notice published in the Federal • Evaluate the accuracy of the October 31, 2011. Register on May 3, 2011 (76 FR 24919). agency’s estimate of the burden of the ADDRESSES: A copy of this ICR with Interested parties are encouraged to proposed collection of information, applicable supporting documentation; send comments to the OMB, Office of including the validity of the including a description of the likely Information and Regulatory Affairs at methodology and assumptions used; respondents, proposed frequency of • the address shown in the ADDRESSES Enhance the quality, utility, and response, and estimated total burden section within 30 days of publication of clarity of the information to be may be obtained from the RegInfo.gov this notice in the Federal Register. In collected; and Web site, http://www.reginfo.gov/ • order to help ensure appropriate Minimize the burden of the public/do/PRAMain, on the day consideration, comments should collection of information on those who following publication of this notice or reference OMB Control Number 1240– are to respond, including through the by contacting Michel Smyth by 0020. The OMB is particularly use of appropriate automated, telephone at 202–693–4129 (this is not interested in comments that: electronic, mechanical, or other a toll-free number) or sending an e-mail • Evaluate whether the proposed technological collection techniques or to [email protected]. other forms of information technology, Submit comments about this request collection of information is necessary e.g., permitting electronic submission of to the Office of Information and for the proper performance of the responses. Regulatory Affairs, Attn: OMB Desk functions of the agency, including Agency: Office of Workers’ Officer for the Department of Labor, whether the information will have Compensation Programs (OWCP). Office of Workers’ Compensation practical utility; Title of Collection: Miner’s Claim for Programs (OWCP), Office of • Evaluate the accuracy of the Benefits Under the Black Lung Benefits Management and Budget, Room 10235, agency’s estimate of the burden of the Act and Employment History. Washington, DC 20503, Telephone: proposed collection of information, OMB Control Number: 1240–0038. 202–395–6929/Fax: 202–395–6881 including the validity of the Affected Public: Individuals or (these are not toll-free numbers), e-mail: methodology and assumptions used; households. [email protected]. • Enhance the quality, utility, and Total Estimated Number of FOR FURTHER INFORMATION CONTACT: clarity of the information to be Respondents: 9500. Michel Smyth by telephone at 202–693– collected; and Total Estimated Number of 4129 (this is not a toll-free number) or • Responses: 9500. Minimize the burden of the by e-mail at collection of information on those who Total Estimated Annual Burden [email protected]. Hours: 6667. are to respond, including through the Total Estimated Annual Other Costs SUPPLEMENTARY INFORMATION: The use of appropriate automated, Burden: $1771. Representative Payee Report (Form CM– electronic, mechanical, or other 623) and Representative Payee Report, technological collection techniques or Dated: September 26, 2011. Short Form (Form CM–623S) are used to other forms of information technology, Michel Smyth, ensure that benefits paid to a e.g., permitting electronic submission of Departmental Clearance Officer. representative payee are being used for responses. [FR Doc. 2011–25121 Filed 9–28–11; 8:45 am] the beneficiary’s well-being. The Agency: Office of Workers’ BILLING CODE 4510–CK–P Physician’s/Medical Officer’s Statement Compensation Programs (OWCP). (Form CM–787) is used to determine the Title of Collection: Representative beneficiary’s capability to manage Payee Report, Representative Payee DEPARTMENT OF LABOR monthly Black Lung benefits. Report, Short Form, Physician’s/ This information collection is subject Medical Officer’s Statement. Office of the Secretary to the PRA. A Federal agency generally cannot conduct or sponsor a collection OMB Control Number: 1240–0020. Agency Information Collection of information, and the public is Affected Public: Individuals or Activities; Submission for OMB generally not required to respond to an households and private sector— Review; Comment Request; information collection, unless it is businesses or other for-profits and not- Representative Payee Report, approved by the OMB under the PRA for-profit institutions. Representative Payee Report, Short and displays a currently valid OMB Form, Physician’s/Medical Officer’s Total Estimated Number of Control Number. In addition, Statement Respondents: 2100. notwithstanding any other provisions of Total Estimated Number of law, no person shall generally be subject ACTION: Notice. Responses: 2100. to penalty for failing to comply with a SUMMARY: The Department of Labor collection of information if the Total Estimated Annual Burden (DOL) is submitting the Office of collection of information does not Hours: 1642. Workers’ Compensation Programs display a valid OMB Control Number. Total Estimated Annual Other Costs (OWCP) sponsored information See 5 CFR 1320.5(a) and 1320.6. The Burden: $0.

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Dated: September 26, 2011. 50), authorizes and directs the Secretary Occupations. The certificates are issued Michel Smyth, of Labor ‘‘to formulate and promote the by the Registration Agency upon the Departmental Clearance Officer. furtherance of labor standards necessary program sponsor’s request. • [FR Doc. 2011–25094 Filed 9–28–11; 8:45 am] to safeguard the welfare of apprentices, Probation Length in hours clarifies BILLING CODE 4510–CK–P to extend the application of such that the probation period cannot exceed standards by encouraging the inclusion 25 percent of the length of the program thereof in contracts of apprenticeship, to or one year, whichever is shorter. DEPARTMENT OF LABOR bring together employers and labor for • Number of periods in the wage the formulation of programs of schedule is now based on the program Employment and Training apprenticeship, to cooperate with State sponsor’s Training Occupation Administration agencies engaged in the formulation and Approach. The Program Registration promotion of standards of Date was revised. Comment Request for Information apprenticeship, and to cooperate with • Provisional Registration, which is a Collection; Apprenticeship Programs, the Secretary of Education in one-year initial provisional approval for Labor Standards for Registration; accordance with Section 17 of Title 20.’’ a new program, is provided to programs Extension With Revisions Section 50a of the Act authorizes the that meet the required standards for Secretary of Labor to ‘‘publish program registration. Programs may AGENCY: Employment and Training Administration, Labor. information relating to existing and continue to be provisionally approved proposed labor standards of through the first training cycle until ACTION: Notice. apprenticeship,’’ and to ‘‘appoint permanent registration is granted. SUMMARY: The Department of Labor national advisory committees * * *’’ Additionally, a five-year review must be (Department), as part of its continuing (29 U.S.C. 50a). On October 29, 2008, conducted of the program to maintain effort to reduce paperwork and ETA issued a final rule in the Federal its permanent registration. respondent burden, conducts a Register that updated Title 29, CFR part Section II (Apprentice Registration) preclearance consultation program to 29. The regulations were revised for the was revised to be aligned with the provide the general public and Federal first time since 1977. The rule became changes in Section I. These changes agencies with an opportunity to effective on December 29, 2008 and included the Occupation Training comment on proposed and/or implemented changes to Title 29 CFR Approach, the Term of the continuing collections of information in part 29 that will increase flexibility, Apprenticeship, Probationary Period, accordance with the Paperwork enhance program quality and Term Remaining, and the Wage Reduction Act of 1995 (PRA95) [44 accountability, and promote Schedule. apprenticeship opportunity in the 21st U.S.C. 3506(c)(2)(A)]. This program II. Review Focus helps to ensure that requested data can century, while continuing to safeguard The Department is particularly be provided in the desired format, the welfare of apprentices. The interested in comments which: reporting burden (time and financial approved Office of Management and • Evaluate whether the proposed resources) is minimized, collection Budget (OMB) collection instrument, collection of information is necessary instruments are clearly understood, and ETA Program Registration (Section I), for the proper performance of the the impact of collection requirements on and Apprentice Registration (Section II), functions of the agency, including respondents can be properly assessed. expires January 31, 2012. Both sections whether the information will have Currently, the Employment and are available electronically to facilitate practical utility; Training Administration (ETA) is the registration of programs and apprentices. • Evaluate the accuracy of the soliciting comments concerning the The changes to the currently agency’s estimate of the burden of the collection of data about Title 20 CFR approved Section I (ETA Program proposed collection of information, part 29, Apprenticeship Programs, Labor Registration) consist of the following: including the validity of the Standards for Registration with an • Instruction Method was revised to methodology and assumptions used; expiration date of January 31, 2012. include electronic media (technology- • Enhance the quality, utility, and A copy of the proposed information based instruction and distance clarity of the information to be collection request (ICR) can be obtained learning). collected; and by contacting the office listed below in • Occupation Training Approach now • Minimize the burden of the the addresses section of this notice. includes the Hybrid Approach. collection of information on those who DATES: Written comments must be • The Competency-Based and Hybrid are to respond, including through the submitted to the office listed in the Approaches are explained in more use of appropriate automated, addresses section below on or before detail. This includes the use of Interim electronic, mechanical, or other November 28, 2011. Credentials—certificates that provide technological collection techniques or ADDRESSES: Submit written comments portable recognition of an apprentice’s other forms of information technology, to John V. Ladd, Administrator, Office accomplishments after certain e.g., permitting electronic submissions of Apprenticeship, Room N–5311 milestones are achieved during the of responses. Employment and Training training. A program sponsor who Administration, 200 Constitution chooses to use interim credentials must III. Current Actions Avenue, NW., Washington, DC 20210. identify and demonstrate how these Recordkeeping and data collection Telephone No.: 202–693–2796 (this is credentials link to the components of activities regarding registered not a toll-free number). Fax: 202–693– the apprenticeable occupation, and apprenticeship are by-products of the 3799. E-mail: [email protected]. establish a process for assessing an registration system. Organizations SUPPLEMENTARY INFORMATION: apprentice’s competency. Interim which apply for apprenticeship Credentials are voluntarily chosen by sponsorship enter into an agreement I. Background the program sponsor and are based on with the Federal government or The National Apprenticeship Act of standards applicable only to cognizant State government to operate 1937 (the Act), Section 50 (29 U.S.C. Competency-Based or Hybrid their proposed programs consistent with

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29 CFR parts 29 and 30. Apprenticeship electronically from the apprenticeship Form(s): ETA Form 671: Program sponsors are not required to file reports database to the revised Apprentice Registration—Section I and Apprentice regarding their apprentices other than Registration—Section II, Part B: Sponsor Registration—Section II. individual registration and update field area. Total Annual Respondents: 139,466. Type of Review: Extension with information as an apprentice moves Annual Frequency: 1-time basis. through their program. Program revisions. Registration, Section I, and Apprentice Title: Title 29 CFR Part 29, Total Annual Responses: 139,466. Apprenticeship Programs, Labor Registration, Section II, are used at Average Time per Response: .083 Standards for Registration. hours. different times, for different purposes, OMB Number: 1205–0223. and with different individuals or Affected Public: Program Sponsors, Estimated Total Annual Burden entities. The information is not State Apprenticeship Agencies, Hours: 15,193. duplicative. Where necessary, this Applicants, Apprentices, Tribal Total Annual Burden Cost for information will be repopulated Government. Respondents: $292,349.

Requirement ETA Form Total Annual Annual burden 671 Sec. respondents Frequency response Average response time hours

Section I ...... 29.3 1,000 1-time basis ...... 1,000 .20 hr./Sponsor ...... 200 Section II ...... 29.3 67,240 1-time basis ...... 67,240 .083 hr./Apprentice ...... 5,581 ditto ...... 29.6 69,400 1-time basis...... 69,400 .083 hr./Apprentice...... 5,760 ditto ...... 29.5 1,000 1-time basis...... 1,000 2 hrs./Sponsor...... 2,000 ...... 800 1-time basis...... 800 2 hrs./SAA...... 1,600

ditto ...... 29.13 (Have sought recognition and are awaiting final recognition; no new State agency expected during 2012– 2015)

ditto ...... 29.12 26 1-time basis...... 26 2 hrs./SAA...... 52 ditto ...... 29.14 0 1-time basis ...... 0 0 ...... 0

ditto ...... Totals 139,466 ...... 139,466 ...... 15,193

Total Respondents: 139,466 (2,000 DEPARTMENT OF LABOR submitted electronically at http:// sponsors + 136,640 apprentices + 826 www.regulations.gov, the Federal SACs). Occupational Safety and Health eRulemaking Portal. Follow the online Administration Total Burden Hours: 15,193 (2,200 instructions for submitting nominations; sponsors + 11,341 apprentices + 1,652 [Docket No. OSHA—2011–0116] Facsimile: If the nomination, including attachments, does not exceed SACs). Federal Advisory Council on 10 pages, you may fax it to the OSHA Burden estimates are experience- Occupational Safety and Health Docket Office at (202) 693–1648; based. Mail, express delivery, hand delivery, AGENCY: Comments submitted in response to Occupational Safety and Health messenger or courier service: Submit Administration (OSHA), Labor. this comment request will be three copies of nominations and summarized and/or included in the ACTION: Reopening of the record and supporting materials to the OSHA request for OMB approval of the ICR; extension of the nominations deadline. Docket Office, Docket No. OSHA–2011– 0116, Room N–2625, U.S. Department of they will also become a matter of public SUMMARY: OSHA is reopening the record record. Labor, 200 Constitution Avenue, NW., and extending the deadline for Washington, DC 20210; telephone (202) Dated: September 21, 2011. submitting nominations for membership 693–2350 (TTY number (877) 889– Jane Oates, on the Federal Advisory Council on 5627). Deliveries (hand, express mail, Occupational Safety and Health Assistant Secretary for Employment and messenger, and courier service) are Training. (FACOSH) until October 31, 2011. accepted during the Department of [FR Doc. 2011–25081 Filed 9–28–11; 8:45 am] DATES: Nominations for FACOSH must Labor’s and OSHA Docket Office’s be submitted (postmarked, sent, BILLING CODE 4510–FT–P normal business hours, 8:15 a.m.—4:45 transmitted, or received) by October 31, p.m., e.t. 2011. Instructions: All nominations for ADDRESSES: You may submit FACOSH must include the agency name nominations for FACOSH, identified by and docket number for this Federal Docket No. OSHA–2011–0116, by any Register notice (Docket No. OSHA– one of the following methods: 2011–0116). Because of security-related Electronically: Nominations, procedures, submitting nominations by including attachments, may be regular mail may result in a significant

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delay in their receipt. Please contact the membership on FACOSH until October U.S.C. 7902, the Federal Advisory OSHA Docket Office, at the address 31, 2011. OSHA is extending the Committee Act (5 U.S.C. App), above, for information about security FACOSH nominations deadline because Executive Order 12196 and 13511, 29 procedures for submitting nominations of a lack of qualified candidates being CFR part 1960 (Basic Program Elements by hand delivery, express delivery, and nominated for FACOSH membership. for Federal Employee Occupational messenger or courier service. For For instructions and information about Safety and Health Programs and Related additional information on submitting submitting nominations, see 76 FR Matters), 41 CFR part 102–3, Secretary nominations, see 76 FR 16897. 16897. of Labor’s Order 4–2010 (75 FR 55355, Submissions in response to this On July 7, 2011, OSHA published a 9/10/2010). Federal Register notice, including Federal Register notice inviting Signed at Washington, DC on September personal information provided, will be interested parties to submit nominations 26, 2011. posted without change at http:// for FACOSH membership by September David Michaels, www.regulations.gov. Therefore, OSHA 6, 2011 (76 FR 16897). OSHA requests Assistant Secretary of Labor for Occupational cautions interested parties about nominations to fill six vacancies on Safety and Health. submitting personal information such as FACOSH, three labor and three [FR Doc. 2011–25042 Filed 9–28–11; 8:45 am] social security numbers and birth dates. management members. One vacancy BILLING CODE 4510–26–P Electronic copies of this Federal occurred during CY 2010 and five Register notice as well as OSHA’s July vacancies will occur in CY 2011. The 7, 2011 notice requesting nominations Secretary of Labor will appoint new for FACOSH membership are available members to three-year terms. MILLENNIUM CHALLENGE at http://www.regulations.gov. Both FACOSH is authorized to advise the CORPORATION notices, as well as news releases and Secretary of Labor on all matters relating other relevant information, are also to the occupational safety and health of [MCC 11–09] available on OSHA’s webpage at Federal employees (Occupational Safety http://www.osha.gov. Notice of Quarterly Report (April 1, and Health Act of 1970 (29 U.S.C. 668), 2011–June 30, 2011) FOR FURTHER INFORMATION CONTACT: 5 U.S.C. 7902, Executive Orders 12196 For press inquiries: Mr. Francis and 13511). This includes providing AGENCY: Millennium Challenge Meilinger, OSHA, Office of advice on how to reduce and keep to a Corporation. Communications, Room N–3647, U.S. minimum the number of injuries and SUMMARY: The Millennium Challenge Department of Labor, 200 Constitution illnesses in the Federal workforce and Corporation (MCC) is reporting for the Avenue, NW., Washington, DC 20210; how to encourage the establishment and quarter April 1, 2011 through June 30, telephone (202) 693–1999. maintenance of effective occupational 2011, on assistance provided under For general information: Mr. Francis safety and health programs in each section 605 of the Millennium Yebesi, OSHA, Office of Federal Agency Federal department and agency. Challenge Act of 2003 (22 U.S.C. 7701 Programs, Directorate of Enforcement et seq.), as amended (the Act), and on Authority and Signature: Programs, Room N–3622, U.S. transfers or allocations of funds to other Department of Labor, 200 Constitution David Michaels, Ph.D., MPH, Federal agencies under section 619(b) of Avenue, NW., Washington, DC 20210; Assistant Secretary of Labor for the Act. The following report will be telephone (202) 693–2122; e-mail Occupational Safety and Health, made available to the public by [email protected]. directed the preparation of this notice publication in the Federal Register and SUPPLEMENTARY INFORMATION: OSHA is under the authority granted by section on the Internet Web site of the MCC reopening the record and extending the 19 of the Occupational Safety and (http://www.mcc.gov) in accordance deadline for submitting nominations for Health Act of 1970 (29 U.S.C. 668), 5 with section 612(b) of the Act.

ASSISTANCE PROVIDED UNDER SECTION 605

Cumulative Projects Obligated Objective expenditures Measures

Country: Madagascar Year: 2011 Quarter 3 Total Obligation: $87,594,779 Entity to which the assistance is provided: MCA Madagascar Total Quarterly Expenditures 1: $0

Land Tenure Project $29,560,718 Increase Land Titling and Security ...... $29,560,718 Area secured with land certificates or ti- tles in the Zones. Legal and regulatory reforms adopted. Number of land documents inventoried in the Zones and Antananarivo. Number of land documents restored in the Zones and Antananarivo. Number of land documents digitized in the Zones and Antananarivo. Average time for Land Services Offices to issue a duplicate copy of a title. Average cost to a user to obtain a dupli- cate copy of a title from the Land Services Offices. Number of land certificates delivered in the Zones during the period. Number of new guichets fonciers oper- ating in the Zones.

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ASSISTANCE PROVIDED UNDER SECTION 605—Continued

Cumulative Projects Obligated Objective expenditures Measures

The 256 Plan Local d’Occupation Foncier-Local Plan of Land Occupation (PLOFs) are completed. Financial Sector Re- $23,704,219 Increase Competition in the Financial $23,704,220 Volume of funds processed annually by form Project. Sector. the national payment system. Number of accountants and financial ex- perts registered to become CPA. Number of Central Bank branches capa- ble of accepting auction tenders. Outstanding value of savings accounts from CEM in the Zones. Number of Micro-Finance Institutions (MFIs) participating in the Refinancing and Guarantee funds. Maximum check clearing delay. Network equipment and integrator. Real time gross settlement system (RTGS). Telecommunication facilities. Retail payment clearing system. Number of CEM branches built in the Zones. Number of savings accounts from CEM in the Zones. Percent of Micro-Finance Institution (MFI) loans recorded in the Central Bank database. Agricultural Busi- $13,854,448 Improve Agricultural Projection Tech- $13,854,449 Number of farmers receiving technical ness Investment nologies and Market Capacity in Rural assistance. Project. Areas. Number of marketing contracts of ABC clients. Number of farmers employing technical assistance. Value of refinancing loans and guaran- tees issued to participating MFIs (as a measure of value of agricultural and rural loans). Number of Mniste`re de l’Agriculture,de l’Elevage et de la Peˆche-Ministry of Agriculture, Livestock, and Fishing (MAEP) agents trained in marketing and investment promotion. Number of people receiving information from Agricultural Business Center (ABCs) on business opportunities. Program Administra- $18,475,394 ...... $19,662,387 tion2 and Control, Monitoring and Evaluation. Pending subsequent ...... $0 reports 3. FY2010 Madagascar post-compact disbursement related to final payment of audit expenses.

Cumulative Projects Obligated Objective expenditures Measures

Country: Honduras Year: 2011 Quarter 3 Total Obligation: $205,000,000 Entity to which the assistance is provided: MCA Honduras Total Quarterly Expenditures 1: $0

Rural Development $68,273,380 Increase the productivity and business $68,264,510 Number of program farmers harvesting Project. skills of farmers who operate small high-value horticulture crops. and medium-size farms and their em- Number of hectares harvesting high- ployees. value horticulture crops. Number of business plans prepared by program farmers with assistance from the implementing entity, Total value of net sales. Total number of recruited farmers receiv- ing technical assistance.

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Cumulative Projects Obligated Objective expenditures Measures

Value of loans disbursed to farmers, ag- ribusiness, and other producers and vendors in the horticulture industry, in- cluding Program Farmers, cumulative to date, Trust Fund Resources. Number of loans disbursed (disaggregated by trust fund, lever- aged from trust fund, and institutions receiving technical assistance from ACDI–VOCA). Number of hectares under irrigation. Number of farmers connected to the community irrigation system. Transportation $120,591,240 Reduce transportation costs between tar- $120,584,457 Freight shipment cost from Tegucigalpa Project. geted production centers and national, to Puerto Cortes. regional and global markets. Average annual daily traffic volume- CA– 5. International roughness index (IRI)—CA– 5. Kilometers of road upgraded—CA–5. Percent of contracted road works dis- bursed—CA–5. Average annual daily traffic volume— secondary roads. International roughness index (IRI)—sec- ondary roads. Kilometers of road upgraded—secondary roads. Average annual daily traffic volume— rural roads. Average speed –Cost per journey (rural roads). Kilometers of road upgraded—rural roads. Percent disbursed for contracted studies. Value of signed contracts for feasibility, design, supervision and program man- agement contracts. Kilometers (km) of roads under design. Number of Construction works and su- pervision contracts signed. Kilometers (km) of roads under works contracts. Program Administra- $16,135,380 ...... $15,086,464 tion 2, and Control, Monitoring and Evaluation. Pending subsequent ...... $0 reports 3. The negative quarterly expenditure for Honduras is related to expense accruals. The accruals will be reversed in 2011 and applied to various projects and activities.

Cumulative Projects Obligated Objective expenditures Measures

Country: Cape Verde Year: 2011 Quarter 3 Total Obligation: $110,078,488 Entity to which the assistance is provided: MCA Cape Verde Total Quarterly Expenditures 1: $1,038,897

Watershed and Agri- $12,011,603 Increase agricultural production in three $11,602,406 Productivity: Horticulture, Paul water- cultural Support targeted watershed areas on three is- shed. Project. lands. Productivity: Horticulture, Faja water- shed. Productivity: Horticulture, Mosteiros wa- tershed. Number of farmers adopting drip irriga- tion: All intervention watersheds (Paul, Faja and Mosteiros). Hectares under improved or new irriga- tion (All Watersheds Paul, Faja, and Mosteiros).

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Cumulative Projects Obligated Objective expenditures Measures

Irrigation Works: Percent contracted works disbursed. All intervention wa- tersheds (Paul, Faja and Mosteiros). Number of reservoirs constructed in all intervention watersheds (Paul, Faja and Mosteiros) (incremental). Number of farmers trained. Infrastructure Im- $82,630,208 Increase integration of the internal mar- $82,542,708 Travel time ratio: percentage of bene- provement Project. ket and reduce transportation costs. ficiary population further than 30 min- utes from nearest market. Kilometers of roads/bridges completed. Percent of contracted road works dis- bursed (cumulative). Port of Praia: percent of contracted port works disbursed (cumulative). Private Sector De- $1,920,018 Spur private sector development on all $1,824,566 Micro-Finance Institutions portfolio at velopment Project. islands through increased investment risk, adjusted (level). in the priority sectors and through fi- nancial sector reform. Program Administra- $13,516,659 ...... $12,542,777 tion2, and Control, Monitoring and Evaluation. Pending subsequent ...... $0 reports3. Cumulative Projects Obligated Objective expenditures Measures

Country: Nicaragua Year: 2011 Quarter 3 Total Obligation: $113,500,000 Entity to which the assistance is provided: MCA Nicaragua Total Quarterly Expenditures 1: $2,462,277

Property Regulariza- $7,180,454 Increase Investment by strengthening $7,434,599 Automated database of registry and ca- tion Project. property rights. dastre installed in the 10 municipalities of Leon. Value of land, urban. Value of land, rural. Time to conduct a land transaction. Number of additional parcels with a reg- istered title, urban. Number of additional parcels with a reg- istered title, rural. Area covered by cadastral mapping. Cost to conduct a land transaction. Transportation $58,000,000 Reduce transportation costs between $57,540,040 Annual Average daily traffic volume: N1 Project. Leon and Chinandega and national, Section R1. regional and global markets. Annual Average daily traffic volume: N1 Section R2. Annual Average daily traffic volume: Port Sandino (S13). Annual Average daily traffic volume: Villanueva—Guasaule Annual. Average daily traffic volume: Somotillo- Cinco Pinos (S1). Annual average daily traffic volume: Leo´n-Poneloya-Las Pen˜itas. International Roughness Index: N–I Sec- tion R1. International Roughness Index: N–I Sec- tion R2. International Roughness Index: Port Sandino (S13. International roughness index: Villanueva—Guasaule. International roughness index: Somotillo- Cinco Pinos. International roughness index: Leo´n- Poneloya-Las Pen˜itas. Kilometers of NI upgraded: R1 and R2 and S13. Kilometers of NI upgraded: Villanueva— Guasaule.

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Cumulative Projects Obligated Objective expenditures Measures

Kilometers of S1 road upgraded. Kilometers of S9 road upgraded. Rural Development $32,875,845 Increase the value added of farms and $31,345,307 Number of beneficiaries with business Project. enterprises in the region. plans. Numbers of manzanas (1 manzana = 1.7 hectares), by sector, harvesting higher- value crops. Number of beneficiaries with business plans prepared with assistance of Rural Business Development Project. Number of beneficiaries implementing forestry business plans under Improve- ment of Water Supplies Activity. Number of Manzanas reforested. Number of Manzanas with trees planted. Program Administra- $15,443,701 ...... $14,993,362 tion2, Due Dili- gence, Monitoring and Evaluation. Pending subsequent ...... $1,759,671 reports3. Cumulative Projects Obligated Objective expenditures Measures

Country: Georgia Year: 2011 Quarter 3 Total Obligation: $395,300,000 Entity to which the assistance is provided: MCA Georgia Total Quarterly Expenditures 1: $10,992,708

Regional Infrastruc- $314,240,000 Key Regional Infrastructure Rehabilitated $308,369,918 Household savings from Infrastructure ture Rehabilitation Rehabilitation Activities. Project. Savings in vehicle operating costs (VOC). International roughness index (IRI). Annual average daily traffic (AADT). Travel Time. Kilometers of road completed. Signed contracts for feasibility and/or de- sign studies. Percent of contracted studies disbursed. Kilometers of roads under design. Signed contracts for road works. Kilometers of roads under works con- tracts. Sites rehabilitated (phases I, II, III)— pipeline. Construction works completed (phase II)—pipeline. Savings in household expenditures for all RID subprojects. Population Served by all RID sub- projects. RID Subprojects completed. Value of Grant Agreements signed. Value of project works and goods con- tracts Signed. Subprojects with works initiated. Regional Enterprise $52,040,800 Enterprises in Regions Developed ...... $51,736,506 Jobs Created by Agribusiness Develop- Development ment Activity (ADA) and by Georgia Project. Regional Development Fund (GRDF). Household net income—ADA and GRDF. Jobs created—ADA. Firm income—ADA. Household net income—ADA. Beneficiaries (direct and indirect)—ADA. Grant agreements signed—ADA. Increase in gross revenues of portfolio companies. Increase in portfolio company employ- ees. Increase in wages paid to the portfolio company employees. Portfolio companies.

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Cumulative Projects Obligated Objective expenditures Measures

Funds disbursed to the portfolio compa- nies. Program Administra- $20,577,650 ...... $24,507,904 tion 2, Due Dili- gence, Monitoring and Evaluation. Pending subsequent ...... $1,748,306 reports 3. In November 2008, MCC and the Georgian government signed a Compact amendment making up to $100 million of additional funds available to the Millennium Challenge Georgia Fund. These funds will be used to complete works in the Roads, Regional Infrastructure Development, and Energy Rehabilitation Projects contemplated by the original Compact. The amendment was ratified by the Georgian parliament and entered into force on January 30, 2009.

Cumulative Projects Obligated Objective expenditures Measures

Country: Vanuatu Year: 2011 Quarter 3 Total Obligation: $65,690,000 Entity to which the assistance is provided: MCA Vanuatu Total Quarterly Expenditures 1: $380,075

Transportation Infra- $60,127,374 Facilitate transportation to increase tour- $60,072,138 Traffic volume (average annual daily traf- structure Project. ism and business development. fic)—Efate Ring Road. Traffic Volume (average annual daily traffic)—Santo East Coast Road. Kilometers of road upgraded—Efate Ring Road. Kilometers of roads upgraded—Santo East Coast Road. Percent of MCC contribution disbursed to ‘‘adjusted’’ signed contracts of roads works; including approved variations. Program Administra- $5,562,626 ...... $5,152,780 tion 2, Due Dili- gence, Monitoring and Evaluation. Pending subsequent ...... $19,948 reports 3. Cumulative Projects Obligated Objective expenditures Measures

Country: Armenia Year: 2011 Quarter 3 Total Obligation: $235,650,000 Entity to which the assistance is provided: MCA Armenia Total Quarterly Expenditures 1: $30,753,069

Irrigated Agriculture $153,221,708 Increase agricultural productivity Improve $139,001,654 Training/technical assistance provided for Project (Agri- and Quality of Irrigation. On-Farm Water Management. culture and Water). Training/technical assistance provided for Post-Harvest Processing. Loans Provided. Value of irrigation feasibility and/or de- tailed design contracts signed. Value of irrigation feasibility and/or de- tailed design contracts disbursed. Number of farmers using better on-farm water management. Number of enterprises using improved techniques. Value of irrigation feasibility and/or de- tailed design contracts signed. Additional Land irrigated under project. Value of irrigation feasibility and/or de- tailed design contracts signed. Value of irrigation feasibility and/or de- tailed design contracts disbursed. Rural Road Reha- $67,100,000 Better access to economic and social in- $7,668,644 Average annual daily traffic on Pilot bilitation Project. frastructure. Roads. International roughness index for Pilot Roads. Road Sections Rehabilitated—Pilot Roads. Pilot Roads: Percent of Contracted Roads Works Disbursed of Works Completed.

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Cumulative Projects Obligated Objective expenditures Measures

Program Administra- $15,328,292 ...... $12,728,874 tion 2, Due Dili- gence, Monitoring and Evaluation. Pending subsequent ...... $272,768 reports 3. Cumulative Projects Obligated Objective expenditures Measures

Country: Benin Year: 2011 Quarter 2 Total Obligation: $307,298,040 Entity to which the assistance is provided: MCA Benin Total Quarterly Expenditures 1: $44,172,939

Access to Financial $16,950,000 Expand Access to Financial Services ..... $10,833,594 Value of credits granted by Micro-Fi- Services Project. nance Institutions (at the national level). Value of savings collected by MFI institu- tions (at the national level). Average portfolio at risk >90 days of microfinance institutions at the national level. Operational self-sufficiency of MFIs at the national level. Number of institutions receiving grants through the Facility. Number of MFIs inspected by Cellule Su- pervision Microfinance. Access to Justice $21,536,651 Improved Ability of Justice System to En- $13,822,337 Average time to enforce a contract. Project. force Contracts and Reconcile Claims. Percent of firms reporting confidence in the judicial system. Passage of new legal codes. Average time required for Tribunaux de premiere instance-arbitration centers and courts of first instance (TPI) to reach a final decision on a case. Average time required for Court of Ap- peals to reach a final decision on a case. Percent of cases resolved in TPI per year. Percent of cases resolved in Court of Appeals per year. Number of Courthouses completed. Average time required to register a busi- ness (socie´te´). Average time required to register a busi- ness (sole proprietorship). Access to Land $33,715,553 Strengthen property rights and increase $23,621,948 Percentage of households investing in Project. investment in rural and urban land. targeted urban land parcels. Percentage of households investing in targeted rural land parcels. Average cost required to convert occu- pancy permit to land title through sys- tematic process. Share of respondents perceiving land se- curity in the Conversions from Occu- pancy permit to land title (PH–TF) or Rural Land Plan (PFR) areas. Number of preparatory studies com- pleted. Number of Legal and Regulatory Re- forms Adopted. Amount of Equipment Purchased. Number of new land titles obtained by transformation of occupancy permit. Number of land certificates issued within MCA—Benin implementation. Number of PFRs established with MCA Benin implementation. Number of permanent stations installed. Number of stakeholders Trained. Number of communes with new cadastres.

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Cumulative Projects Obligated Objective expenditures Measures

Number of operational land market infor- mation systems. Access to Markets $188,494,824 Improve Access to Markets through Im- $162,219,275 Volume of merchandise traffic through Project. provements to the Port of Cotonou. the Port Autonome de Cotonou. Bulk ship carriers waiting times at the port. Port design-build contract awarded. Annual number of thefts cases. Average time to clear customs Port meets—international port security standards (ISPS). Program Administra- $46,601,012 ...... $34,819,037 tion2, Due Dili- gence, Monitoring and Evaluation. Pending subsequent ...... $283,061 reports3. Cumulative Projects Obligated Objective expenditures Measures

Country: Ghana Year: 2011 Quarter 3 Total Obligation: $547,009,000 Entity to which the assistance is provided: MCA Ghana Total Quarterly Expenditures 1: $67,966,816

Agriculture Project .. $211,970,412 Enhance Profitability of cultivation, serv- $157,279,409 Number of farmers trained in commercial ices to agriculture and product han- agriculture. dling in support of the expansion of Number of agribusinesses assisted. commercial agriculture among groups Number of preparatory land studies com- of smallholder farms. pleted. Legal and regulatory land reforms adopt- ed. Number of landholders reached by public outreach efforts. Number of hectares under production. Number of personnel trained. Number of buildings rehabilitated/con- structed. Value of equipment purchased. Feeder roads international roughness index. Feeder roads annualized average daily traffic. Value of signed contracts for feasibility and/or design studies of feeder roads. Percent of contracted design/feasibility studies completed for feeder roads. Value of signed works contracts for feed- er roads. Percent of contracted feeder road works disbursed. Value of loans disbursed to clients from agriculture loan fund. Value of signed contracts for feasibility and/or design studies (irrigation). Percent of contracted (design/feasibility) studies complete (irrigation). Value of signed contracts for irrigation works (irrigation). Rural hectares mapped. Percent of contracted irrigation works disbursed. Percent of people aware of their land rights in Pilot Land Registration Areas. Total number of parcels surveyed in the Pilot Land Registration Areas (PLRAs). Volume of products passing through post-harvest treatment. Rural Development $74,662,857 Strengthen the rural institutions that pro- $63,929,201 Number of students enrolled in schools Project. vide services complementary to, and affected by Education Facilities Sub- supportive of, agricultural and agri- Activity. culture business development. Number of schools rehabilitated. Number of school blocks constructed. Distance to collect water.

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Cumulative Projects Obligated Objective expenditures Measures

Time to collect water. Incidence of guinea worm. Number of people affected by Water and Sanitation Facilities Sub-Activity. Number of stand-alone boreholes/wells/ nonconventional water systems con- structed/rehabilitated. Number of small-town water systems de- signed and due diligence completed for construction. Number of pipe extension projects de- signed and due diligence completed for construction. Number of agricultural processing plants in target districts with electricity due to Rural Electrification Sub-Activity. Transportation $215,061,187 Reduce the transportation costs affecting $138,979,621 Trunk roads international roughness Project. agriculture commerce at sub-regional index. levels. N1 International roughness index. N1 Annualized average daily traffic. N1 Kilometers of road upgraded. Value of signed contracts for feasibility and/or design studies of the N1. Percent of contracted design/feasibility studies completed of the N1. Value of signed contracts for road works N1, Lot 1. Value of signed contracts for road works N1, Lot 2. Trunk roads annualized average daily traffic. Trunk roads kilometers of roads com- pleted. Percent of contracted design/feasibility studies completed of trunk roads. Percent of contracted trunk road works disbursed. Ferry Activity: annualized average daily traffic vehicles. Ferry Activity: annual average daily traffic (passengers). Landing stages rehabilitated. Ferry terminal upgraded. Rehabilitation of Akosombo Floating Dock completed. Rehabilitation of landing stages com- pleted. Percent of contracted road works dis- bursed: N1, Lot 2. Percent of contracted road works dis- bursed: N1, Lot 2. Percent of contracted work disbursed: ferry and floating dock. Percent of contracted work disbursed: landings and terminals. Value of signed contracts for feasibility and/or design studies of Trunk Roads. Value of signed contracts for trunk roads. Program Administra- $45,314,544 ...... $ 37,055,231 tion,2 Due Dili- gence, Monitoring and Evaluation. Pending subsequent ...... $2,067,683 reports.3

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Cumulative Projects Obligated Objective expenditures Measures

Country: El Salvador Year: 2011 Quarter 3 Total Obligation: $460,940,000 Entity to which the assistance is provided: MCA El Salvador Total Quarterly Expenditures 1: $29,540,735

Human Develop- $99,596,078 Increase human and physical capital of $52,179,183 Employment rate of graduates of middle ment Project. residents of the Northern Zone to take technical schools. advantage of employment and busi- Graduation rates of middle technical ness opportunities.. schools. Middle technical schools remodeled and equipped. New Scholarships granted to students of middle technical education. Students of non-formal training. Cost of water. Time collecting water. Number of households with access to improved water supply. Value of contracted water and sanitation works disbursed. Cost of electricity. Households benefiting with a connection to the electricity network. Household benefiting with the installation of isolated solar systems. Kilometers of new electrical lines with construction contracts signed. Population benefiting from strategic infra- structure. Productive Develop- $71,824,000 Increase production and employment in $26,483,228 Number of hectares under production ment Project. the Northern Zone. with MCC support. Number of beneficiaries of technical as- sistance and training—Agriculture. Number of beneficiaries of technical as- sistance and training—Agribusiness. Value of agricultural loans to farmers/ag- ribusiness. Connectivity Project $255,300,999 Reduce travel cost and time within the $138,283,173 Average annual daily traffic. Northern Zone, with the rest of the International roughness index. country, and within the region. Kilometers of roads rehabilitated. Kilometers of roads with construction ini- tiated. Productive Develop- $71,678,455 ...... $46,031,645 ment Project. Program Administra- $34,365,368 ...... $19,856,366 tion 2 and Control, Monitoring and Evaluation. Pending Subsequent ...... $0 Report 3.

Cumulative Projects Obligated Objective expenditures Measures

Country: Mali Year: 2011 Quarter 3 Total Obligation: $460,811,164 Entity to which the assistance is provided: MCA Mali Total Quarterly Expenditures 1: $53,263,586

Bamako Senou Air- $181,253,028 ...... $53,347,640 Number of full time jobs at the ADM and port Improvement firms supporting the airport. Project. Average number of weekly flights (arriv- als). Passenger traffic (annual average). Percent works complete. Time required for passenger processing at departures and arrivals. Percent works complete. Security and safety deficiencies cor- rected at the airport. Alatona Irrigation $234,884,675 Increase the agricultural production and $187,670,227 Main season rice yields. Project. productivity in the Alatona zone of the International roughness index (IRI) on ON. the Niono-Goma Coura Route. Traffic on the Niono-Diabaly road seg- ment.

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Cumulative Projects Obligated Objective expenditures Measures

Traffic on the Diabaly-Goma Coura road segment. Percentage works completed on Niono- Goma Coura road. Hectares under improved irrigation. Irrigation system efficiency on Alatona Canal. Percentage of contracted irrigation con- struction works disbursed. Number market gardens allocated in Alatona zones to PAPs or New Settler women. Net primary school enrollment rate (in Alatona zone). Percent of Alatona population with im- proved access to drinking water. Number of schools available in Alatona. Number of health centers available in the Alatona. Number of affected people who have been compensate. Number of farmers that have applied im- proved techniques. Hectares under production (rainy sea- son). Hectares under production (dry season). Number of farmers trained. Value of agricultural and rural loans. Number of active MFI clients. Loan recovery rate among Alatona farm- ers. Industrial Park $2,637,472 Terminated ...... $2,637,472 Project. Program Administra- $42,035,989 ...... $27,219,796 tion 2 and Control, Monitoring and Evaluation. Pending Subsequent ...... $1 Report 3. Cumulative Projects Obligated Objective expenditures Measures

Country: Mongolia Year: 2011 Quarter 3 Total Obligation: $284,911,363 Entity to which the assistance is provided: MCA Mongolia Total Quarterly Expenditures 1: $9,787,971

Property Rights $27,201,061 Increase security and capitalization of $7,851,214 Number of legal and regulatory frame- Project. land assets held by lower-income work or preparatory studies completed Mongolians, and increased peri-urban (Peri-Urban and Land Plots). herder productivity and incomes. Number of Legal and regulatory reforms adopted. Number of stakeholders (Peri-Urban and Land Plots). Stakeholders Trained (Peri-Urban and Land Plots). Number of Buildings Built/Rehabilitated. Equipment purchased. Rural hectares Mapped. Urban Parcels Mapped. Leaseholds Awarded. Vocational Edu- $47,355,638 Increase employment and income among $6,887,191 Rate of employment. cation Project. unemployed and underemployed Mon- Vocational school graduates in MCC- golians. supported educational facilities. Percent of active teachers receiving cer- tification training. Technical and vocational education and training (TVET) legislation passed. Health Project ...... $38,974,817 Increase the adoption of behaviors that $15,738,216 Treatment of diabetes. reduce non-communicable diseases Treatment of hypertension. (NCDIs) among target populations and Early detection of cervical cancer. improved medical treatment and con- Recommendations on road safety inter- trol of NCDIs. ventions available.

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Cumulative Projects Obligated Objective expenditures Measures

Roads Project ...... $86,740,123 More efficient transport for trade and ac- $9,368,186 Kilometers of roads completed. cess to services. Annual average daily traffic. Travel time. International Roughness Index. Kilometers of roads under design. Percent of contracted roads works dis- bursed. Energy and Environ- $46,966,205 Increased wealth and productivity $3,319,432 Household savings from decreased fuel mental Project. through greater fuel use efficiency and costs. decreasing health costs from air. Product testing and subsidy setting proc- ess adopted. Health costs from air pollution in Ulaanbaatar. Reduced particulate matter concentra- tion. Capacity of wind power generation. Rail Project...... $369,560 Terminated ...... $369,560 Terminated. Program Administra- $37,303,959 ...... $15,795,799 tion 2 and Control, Monitoring and Evaluation. Pending subsequent ...... $129,924 reports 3. In late 2009, the MCC’s Board of Directors approved the allocation of a portion of the funds originally designated for the rail project to the ex- pansion of the health, vocational education and property right projects from the rail project, and the remaining portion to the addition of a road project.

Cumulative Projects Obligated Objective expenditures Measures

Country: Mozambique Year: 2011 Quarter 3 Total Obligation: $506,924,053 Entity to which the assistance is provided: MCA Mozambique Total Quarterly Expenditures 1: $12,222,176

Water Supply and $207,385,393 Increase access to reliable and quality $18,788,444 Percent of urban population with im- Sanitation Project. water and sanitation facilities. proved water sources. Time to get to non-private water source. Percent of urban population with im- proved sanitation facilities. Percent of rural population with access to improved water sources. Number of private household water con- nections in urban areas. Number of rural water points con- structed. Number of standpipes in urban areas. Five cities: Final detailed design sub- mitted. Three cities: Final detailed design sub- mitted. Road Rehabilitation $176,307,480 Increase access to productive resources $5,762,733 Kilometers of road rehabilitated. Project. and markets. Namialo—Rio Lu´rio Road—Metoro: Per- cent of feasibility, design, and super- vision contract disbursed. Rio Ligonha-Nampula: Percent of feasi- bility, design, and supervision contract disbursed. Chimuara-Nicoadala: Percent of feasi- bility, design, and supervision contract disbursed. Namialo—Rio Lu´rio: Percent of road con- struction contract disbursed. Rio Lu´rio—Metoro: Percent of road con- struction contract disbursed. Rio Ligonha—Nampula: Percent of road construction contract disbursed. Chimuara-Nicoadala: Percent of road construction contract disbursed. Namialo-Rio Lu´rio Road: Average annual daily traffic volume. Rio Lu´rio-Metoro Road: Average annual daily traffic volume. Rio-Ligonha-Nampula Road: Average an- nual daily traffic volume.

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Cumulative Projects Obligated Objective expenditures Measures

Chimuara-Nicoadala Road: Average an- nual daily traffic volume. Namialo-Rio Lu´rio Road: Change in International Roughness Index (IRI). Rio Lu´rio-Metoro Road: Change in Inter- national Roughness Index (IRI). Rio-Ligonha-Nampula Road: Change in International Roughness Index (IRI). Chimuara-Nicoadala Road: Change in International Roughness Index (IRI). Land Tenure Project $39,068,307 Establish efficient, secure land access $12,021,164 Time to get land usage rights (DUAT), for households and investors. urban. Time to get land usage rights (DUAT), rural. Number of buildings rehabilitated or built. Total value of procured equipment and materials. Number of people trained. Rural hectares mapped in Site Specific Activity. Urban parcels mapped. Rural hectares formalized through Site Specific Activity. Urban parcels formalized. Number of communities delimited and formalized. Number of urban households having land formalized. Farmer Income Sup- $18,400,117 Improve coconut productivity and diver- $7,524,289 Number of diseased or dead palm trees port Project. sification into cash crop. cleared. Survival rate of Coconut seedlings. Hectares under production. Number of farmers trained in pest and disease control. Number of farmers trained in crop diver- sification technologies. Income from coconuts and coconut prod- ucts (estates). Income from coconuts and coconuts products (households). Program Administra- $65,782,756 ...... $18,600,247 tion 2 and Control, Monitoring and Evaluation. Pending Subsequent ...... $237,220 Report 3. Cumulative Projects Obligated Objective expenditures Measures

Country: Lesotho Year: 2011 Quarter 3 Total Obligation: $362,551,000 Entity to which the assistance is provided: MCA Lesotho Total Quarterly Expenditures 1: $24,844,746

Water Project ...... $164,027,999 Improve the water supply for industrial $31,617,648 School days lost due to water borne dis- and domestic needs, and enhance eases. rural livelihoods through improved wa- Diarrhea notification at health centers. tershed management. Households with access to improved water supply. Households with access to improved La- trines. Knowledge of good hygiene practices. Households with reliable water services. Enterprises with reliable water services. Households with reliable water services. Volume of treated water. Area re-vegetation. Health Project ...... $122,398,000 Increase access to life-extending ART $40,025,988 People with HIV still alive 12 months and essential health services by pro- after initiation of treatment. viding a sustainable delivery platform. TB notification (per 100,000 pop.). People living with HIV/AIDS (PLWA) re- ceiving Antiretroviral treatment. Deliveries conducted in the health facili- ties.

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Cumulative Projects Obligated Objective expenditures Measures

Immunization coverage rate. Private Sector De- $36,470,318 Stimulate investment by improving ac- $9,811,161 Time required to enforce a contract. velopment Project. cess to credit, reducing transaction Value of commercial cases. costs and increasing the participation Cases referred to Alternative Dispute of women in the economy. Resolution (ADR) that are successfully completed. Portfolio of loans. Loan application processing time. Performing loans. Electronic payments—salaries. Electronic payments—pensions. Debit/smart cards issued. Mortgage bonds registered. Value of registered mortgage bonds. Clearing time—Country. Clearing time—Maseru. Land transactions recorded. Land parcels regularized and registered. People trained on gender equality and economic rights. Eligible population with ID cards. Monetary cost to process a lease appli- cation. Program Administra- $39,654,682 ...... $20,812,467 tion 2 and Control, Monitoring and Evaluation. Pending Subsequent ...... $1,825,781 Report 3.

Cumulative Projects Obligated Objective expenditures Measures

Country: Morocco Year: 2011 Quarter 3 Total Obligation: $697,500,000 Entity to which the assistance is provided: MCA Morocco Total Quarterly Expenditures 1: $53,438,747

Fruit Tree Produc- $301,396,445 Reduce volatility of agricultural produc- $103,948,810 Number of farmers trained. tivity Project. tion and increase volume of fruit agri- Number of agribusinesses assisted. cultural production. Number of hectares under production. Value of agricultural production. Small Scale Fish- $116,168,028 Improve quality of fish moving through $5,355,499 Landing sites and ports rehabilitated. eries Project. domestic channels and assure the Mobile fish vendors using new equip- sustainable use of fishing resources. ment. Fishing boats using new landing sites. Average price of fish at auction markets. Average price of fish at wholesale. Average price of fish at ports. Artisan and Fez Me- $111,373,858 Increase value added to tourism and arti- $12,219,985 Average revenue of Small and Micro En- dina Project. san sectors. terprise (SME) pottery workshops. Construction and rehabilitation of Fez Medina Sites. Tourist receipts in Fez. Training of potters. Enterprise Support $33,850,000 Improved survival rate of new SMEs and $10,350,505 Value added per enterprise. Project. INDH-funded income generating activi- Survival rate after two years. ties; increased revenue for new SMEs and INDH-funded income generating activities. Financial Services $46,200,000 TBD ...... $19,643,716 Portfolio at risk at 30 days Project. Portfolio rate of return Number of clients of Microcredit Associations (AMCs) reached through mobile branches. Program Administra- $88,511,669 ...... $33,868,620 tion 2 and Control, Monitoring and Evaluation. Pending Subsequent ...... $2,951,353 Report 3.

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Cumulative Projects Obligated Objective expenditures Measures

Country: Tanzania Year: 2011 Quarter 3 Total Obligation: $698,136,011 Entity to which the assistance is provided: MCA Tanzania Total Quarterly Expenditures 1: $41,385,741

Energy Sector $206,042,428 Increase value added to businesses ...... $57,730,373 Current power customers: Morogoro D1, Project. Morogoro T1, Morogoro T2 & T3, Tanga D1, Tanga T1, Tanga T2 &T3, Mbeya D1, Mbeya T1, Mbeya T2 &T3, Iringa D1, Iringa T1, Iringa T2 & T3, Dodoma D1, Dodoma T1, Dodoma T2 & T3, Mwanza D1, Mwanza T1 and Mwanza T2 & T3. Transmission and distribution sub-station capacity: Morogoro, Tanga, Mbeya, Iringa, Dodoma and Mwanza. Collection efficiency (Morogoro). Collection efficiency (Tanga). Collection efficiency (Mbeya). Collection efficiency (Iringa). Collection efficiency (Dodoma). Collection efficiency (Mwanza). Technical and nontechnical losses (Morogoro). Technical and nontechnical losses (Tanga). Technical and nontechnical losses (Mbeya). Technical and nontechnical losses (Iringa). Technical and nontechnical losses (Dodoma). Technical and nontechnical losses (Mwanza). Transport Sector $368,847,429 Increase cash crop revenue and aggre- $121,978,880 International roughness index: Tunduma Project. gate visitor spending. Sumbawanga. International roughness index: Tanga Horohoro. International roughness index: Namtumbo Songea. International roughness index: Peramiho Mbinga. Annual average daily traffic: Tunduma Sumbawanga. Annual average daily traffic: Tanga Horohoro. Annual average daily traffic: Namtumbo Songea. Annual average daily traffic: Peramiho Mbinga. Kilometers upgraded/completed: Tunduma Sumbawanga. Kilometers upgraded/completed: Tanga Horohoro. Kilometers upgraded/completed: Namtumbo Songea. Kilometers upgraded/completed: Peramiho Mbinga. Percent disbursed on construction works: Tunduma Sumbawanga. Percent disbursed on construction works: Tanga Horohoro. Percent disbursed on construction works: Namtumbo Songea. Percent disbursed on construction works: Peramiho Mbinga. Percent disbursed for feasibility and/or design studies: Tunduma Sumbawanga. Percent disbursed for feasibility and/or design studies: Tanga Horohoro. Percent disbursed for feasibility and/or design studies: Namtumbo Songea. Percent disbursed for feasibility and/or design studies: Peramiho Mbinga.

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Cumulative Projects Obligated Objective expenditures Measures

International roughness index: Pemba. Average annual daily traffic: Pemba. Kilometers upgraded/completed: Pemba. Percent disbursed on construction works: Pemba. Signed contracts for construction works (Zanzibar Rural Roads). Percent disbursed on signed contracts for feasibility and/or design studies: Pemba. Passenger arrivals: Mafia Island. Percentage of upgrade complete: Mafia Island. Percent disbursed on construction works: Mafia Island. Water Sector Project $65,692,144 Increase investment in human and phys- $17,615,173 Number of domestic customers (Dar es ical capital and to reduce the preva- Salaam). lence of water-related disease. Number of domestic customers (Morogoro). Number of non-domestic (commercial and institutional) customers (Dar es Salaam). Number of non-domestic (commercial and institutional) customers (Morogoro). Volume of water produced (Lower Ruvu). Volume of water produced (Morogoro). Percent disbursed on feasibility design update contract Lower Ruvu Plant Ex- pansion. Program Administra- $57,554,000 ...... $22,416,473 tion 2 and Control, Monitoring and Evaluation. Pending Subsequent ...... $99,857 Report 3. Cumulative Projects Obligated Objective expenditures Measures

Country: Burkina Faso Year: 2011 Quarter 3 Total Obligation: $480,943,569 Entity to which the assistance is provided: MCA Burkina Faso Total Quarterly Expenditures 1: $1,123,783

Roads Project ...... $194,130,681 Enhance access to markets through in- $3,899,270 Annual average daily traffic: Dedougou- vestments in the road network. Nouna. Annual average daily traffic: Nouna- Bomborukuy. Annual average daily traffic: Bomborukuy-Mali border. Kilometers of road under works contract. Kilometers of road under design/feasi- bility contract. Access time to the closest market via paved roads in the Sourou and Comoe (minutes). Kilometers of road under works contract. Kilometers of road under design/feasi- bility contract. Personnel trained in procurement, con- tract management and financial sys- tems. Periodic road maintenance coverage rate (for all funds) (percentage). Rural Land Govern- $59,934,615 Increase investment in land and rural $10,413,294 Trend in incidence of conflict over land ance Project. productivity through improved land ten- rights reported in the 17 pilot com- ure security and land management. munes (Annual percentage rate of change in the occurrence of conflicts over land rights). Number of legal and regulatory reforms adopted. Number of stakeholders reached by pub- lic outreach efforts. Personnel trained.

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Cumulative Projects Obligated Objective expenditures Measures

Number of Services Fonciers Ruraux (rural land service offices) installed and functioning. Rural hectares formalized. Number of parcels registered in Ganzourou project area. Agriculture Develop- $141,910,059 Expand the productive use of land in $7,337,544 New irrigated perimeters developed in Di ment Project. order to increase the volume and (Hectares). value of agricultural production in Technical water management core teams project zones. (noyaux techniques) installed and operational in the two basins (Sourou and Comoe). Number of farmers trained. Number of agro-sylvo-pastoral groups which receive technical assistance. Number of loans provided by the rural fi- nance facility. Volume of loans intended for agro-sylvo- pastoral borrowers (million CFA). Bright II Schools $28,829,669 Increase primary school completion rates $27,785,257 Number of girls/boys graduating from Project. BRIGHT II primary schools. Percent of girls regularly attending (90% attendance) BRIGHT schools. Number of girls enrolled in the MCC/ USAID-supported BRIGHT schools. Number of additional classrooms con- structed. Number of teachers trained through 10 provincial workshops. Program Administra- $56,138,545 ...... $18,025,810 tion 2 and Control, Monitoring and Evaluation. Pending Subsequent ...... $0 Report 3.

Cumulative Projects Obligated Objective expenditures Measures

Country: Namibia Year: 2011 Quarter 3 Total Obligation: $304,477,815 Entity to which the assistance is provided: MCA Namibia Total Quarterly Expenditures 1: $2,528,498

Education Project .... $144,976,556 Improve the quality of the workforce in $14,487,534 Percentage of students who are new en- Namibia by enhancing the equity and trants in grade 5 for 47 schools. effectiveness of basic. Percent of contracted construction works disbursed for 47 schools Percent disbursed against design/super- visory contracts for 47 schools. Percentage of schools with a learner- textbook ration of 1 to 1 in science, math, and English. Number of textbooks delivered. Number of teachers and managers trained in textbook management, utili- zation, and storage. Percent disbursed against works con- tracts for Regional Study Resource Centers Activity (RSRCS). Percent disbursed against design/super- visory contracts for RSRCs. Number of vocational trainees enrolled through the MCA–N grant facility. Value of vocational training grants awarded through the MCA–N grant fa- cility. Percent disbursed against construction, rehabilitation, and equipment contracts for Community Skills and Development Centres (COSDECS). Percent disbursed against design/super- visory contracts for COSDECS.

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Cumulative Projects Obligated Objective expenditures Measures

Tourism Project ...... $66,959,292 Grow the Namibian tourism industry with $7,502,274 Percent of condition precedents and per- a focus on increasing income to formance targets met for Etosha Na- households in communal. tional Park (ENP) activity. Number of game translocated with MCA– N support. Number of unique visits on Namibia Tourism Board (NTB) website. Number of North American tourism busi- nesses (travel agencies and tour oper- ators) that offer Namibian tours or tour packages. Value of grants issued by the conser- vancy grant fund (Namibian dollars). Amount of private sector investment se- cured by MCA–N assisted conser- vancies (Namibian dollars). Number of annual general meetings with financial reports submitted and benefit distribution plans discussed. Agriculture Project .. $47,550,008 Enhance the health and marketing effi- $9,660,832 Number of participating households reg- ciency of livestock in the NCAs of Na- istered in the Community-based mibia and to increase income. Rangeland and Livestock Management (CBRLM) sub-activity. Number of grazing area management im- plementation agreements established under CBRLM sub-activity. Number of community land board mem- bers and traditional authority members trained. Number of cattle tagged with radio fre- quency identification (RFID) tags. Percent disbursed against works con- tracts for State Veterinary Offices. Percent disbursed against design/super- visory contracts for State Veterinary Offices. Value of grant agreements signed under Livestock Market Efficiency Fund. Number of Indigenous Natural Product (INP) producers selected and mobi- lized. Value of grant agreements signed under INP Innovation Fund. Program Administra- $44,991,959 ...... $10,511,378 tion 2 and Control, Monitoring and Evaluation. Pending Subsequent ...... $3,189,460 Report 3.

Cumulative Projects Obligated Objective expenditures Measures

Country: Moldova Year: 2011 Quarter 3 Total Obligation: $262,000,000 Entity to which the assistance is provided: MCA Moldova Total Quarterly Expenditures 1: $5,987,216

Road Rehabilitation $132,840,000 Enhance transportation conditions ...... $318,427 Reduced cost for road users. Project. Average annual daily traffic. Road maintenance expenditure. Kilometers of roads completed. Percent of contracted roads works dis- bursed. Kilometers of roads under works con- tracts. Resettlement Action Plan (RAP) imple- mented. Final design. Kilometers of roads under design.

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Cumulative Projects Obligated Objective expenditures Measures

Transition to High $101,773,402 Increase incomes in the agricultural sec- $5,484,912 Hectares under improved or new irriga- Value Agriculture tor; Create models for transition to tion. Project. HVA in CIS areas and an enabling en- Centralized irrigation systems rehabili- vironment (legal, financial and market) tated. for replication. Percent of contracted irrigation feasibility and/or design studies disbursed. Value of irrigation feasibility and/or de- tailed design contracts signed. Water user associations (WUA) achiev- ing financial sustainability. WUA established under new law. Revised water management policy framework—with long-term water rights defined—established. Contracts of association signed. Irrigation Sector Reform (ISRA) Con- tractor mobilized. Additionally factor of Access to Agricul- tural Finance (AAF) investments. Value of agricultural and rural loans. Number of all loans. Number of all loans (female). High value agriculture (HVA) Post-Har- vest Credit Facility launched. HVA Post-Harvest Credit Facility Policies and Procedures Manual (PPM) Final- ized. Number of farmers that have applied im- proved techniques (Growing High Value Agriculture Sales [GSH]). Number of farmers that have applied im- proved techniques (GHS) (female). Number of farmers trained. Number of farmers trained (female). Number of enterprises assisted. Number of enterprises assisted (female). GHS activity launched. Program Administra- $27,386,598 ...... $1,473,847 tion 2 and Moni- toring and Evalua- tion. Pending Subsequent ...... $1,395 Report 3.

Cumulative Projects Obligated Objective expenditures Measures

Country: Philippines Year: 2011 Quarter 3 Total Obligation: $433,910,000 Entity to which the assistance is provided: MCA Philippines Total Quarterly Expenditures 1: $4,679,902

Revenue Adminis- $54,300,000 To be determined (tbd) ...... tbd. tration Reform Project. Community Devel- $120,000,000 tbd ...... $19,836 tbd. opment Grant. Roads Project ...... $214,493,000 tbd ...... $4,328,660 tbd. Program Administra- $45,117,000 ...... tbd. tion 2 and Moni- toring and Evalua- tion. Pending Subsequent ...... $2,885,141 Report 3.

Cumulative Projects Obligated Objective expenditures Measures

Country: Senegal Year: 2011 Quarter 3 Total Obligation: $540,000,000 Entity to which the assistance is provided: MCA Senegal Total Quarterly Expenditures 1: $2,083,818

Road Rehabilitation $324,712,499 Expand Access to Markets and Services $1,112,254 Tons of irrigated rice production. Project. Kilometers of roads rehabilitated on the RN#2.

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Cumulative Projects Obligated Objective expenditures Measures

Annual average daily traffic Richard- Toll—Ndioum. Percentage change in travel time on the RN # 2. International Roughness Index on the RN#2 (Lower number = smoother road). Kilometers (km) of roads covered by the contract for the studies, the super- vision and management of the RN#2. Kilometers of roads rehabilitated on the RN#6. Annual average daily traffic Ziguinchor— Tanaff. Annual average daily traffic Tanaff— Kolda. Annual average daily traffic Kolda— Kounkane´. Percentage change in travel time on the RN # 6. International Roughness Index on the RN#6 (Lower number = smoother road). Kilometers (km) of roads covered by the contract for the studies, the super- vision and management of the RN#6. Irrigation and Water $170,008,860 Improve productivity of the agricultural $23,857 Tons of irrigated rice production. Resources Man- sector. Potentially irrigable lands area (Delta and agement Project. Ngallenka). Hectares under production. Total value of feasibility, design and en- vironmental study contracts signed for the Delta and the Ngallenka (including RAPs). Cropping intensity (hectares under pro- duction per year/cultivable hectares). Number of hectares mapped to clarify boundaries and land use types. Percent of new conflicts resolved. Number of people trained on land secu- rity tools. Program Administra- $45,278,641 ...... $3,753,535 tion 2 and Moni- toring and Evalua- tion. Pending Subsequent ...... $81,202 Report 3. 1 Expenditures are the sum of cash outlays and quarterly accruals for work completed but not yet paid or invoiced. 2 Program administration funds are used to pay items such as salaries, rent, and the cost of office equipment. 3 These amounts represent disbursements made that will be allocated to individual projects in the subsequent quarter(s) and reported as such in subsequent quarterly report(s).

619(b) Transfer or Allocation of Funds U.S. Agency to which Funds were Transferred or Allocated Amount Description of program or project

USAID ...... $0 Threshold Program

Dated: September 26, 2011. NATIONAL AERONAUTICS AND continuing effort to reduce paperwork T. Charles Cooper, SPACE ADMINISTRATION and respondent burden, invites the Vice President, Congressional and Public general public and other Federal Affairs, Millennium Challenge Corporation. Notice of Information Collection agencies to take this opportunity to [FR Doc. 2011–25119 Filed 9–28–11; 8:45 am] AGENCY: National Aeronautics and comment on proposed and/or BILLING CODE 9211–03–P Space Administration (NASA). continuing information collections, as required by the Paperwork Reduction ACTION: Notice of information collection. Act of 1995 (Pub. L. 104–13, 44 U.S.C. Notice: (11–086). 3506(c)(2)(A)). SUMMARY: The National Aeronautics and Space Administration, as part of its

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DATES: All comments should be is necessary for the proper performance information containing trade secrets or submitted within 60 calendar days from of the functions of NASA, including confidential commercial or financial the date of this publication. whether the information collected has information who have been notified that ADDRESSES: All comments should be practical utility; (2) the accuracy of the NRC has made an initial addressed to Lori Parker, Office of the NASA’s estimate of the burden determination that the information Chief Information Officer, Mail Suite (including hours and cost) of the should be disclosed. 2S65, National Aeronautics and Space proposed collection of information; (3) 7. An estimate of the number of Administration, Washington, DC 20546– ways to enhance the quality, utility, and annual responses: 3,870. 0001. clarity of the information to be 8. The estimated number of annual FOR FURTHER INFORMATION CONTACT: collected; and (4) ways to minimize the respondents: 3,870. Requests for additional information or burden of the collection of information 9. An estimate of the total number of copies of the information collection on respondents, including automated hours needed annually to complete the instrument(s) and instructions should collection techniques or the use of other requirement or request: 1,042.5. be directed to Lori Parker, Office of the forms of information technology. 10. Abstract: Title 10 of the Code of Chief Information Officer, NASA Federal Regulations (10 CFR) part 9, Lori Parker, prescribes procedures for individuals Headquarters, 300 E Street, SW., Mail NASA PRA Clearance Officer. Suite 2S65, Washington, DC 20546, making requests for records under the [FR Doc. 2011–25030 Filed 9–28–11; 8:45 am] (202) 358–1351, [email protected]. FOIA or PA, and through the PDR. It BILLING CODE P contains information collection SUPPLEMENTARY INFORMATION: requirements for requests to waive or I. Abstract reduce fees for searching for and The purpose of this project is to assess NUCLEAR REGULATORY reproducing records in response to if National Park Service (NPS) visitors, COMMISSION FOIA requests; appeals of denied as well as visitors to other public lands, [Docket No. NRC–2011–0032] requests; and requests for expedited are benefiting from an interagency processing. The information required partnership, known as Earth to Sky, by Agency Information Collection from the public is necessary to justify measuring awareness and Activities: Submission for the Office of requests for waivers or reductions in understanding of global climate change Management and Budget (OMB) searching or copying fees; or to justify in visitors to NPS and other public land Review; Comment Request expedited processing. Section 9.28(b) locations. An on-site survey will be provides that if the submitter of AGENCY: Nuclear Regulatory administered to park visitors to assess information designated to be trade Commission. their awareness and understanding of secrets or confidential commercial or global climate change; meaning of and ACTION: Notice of the OMB review of financial information objects to the connection to park resources; and information collection and solicitation disclosure, he must provide a written perception of trust in sources of of public comment. statement within 30 days that specifies information regarding global climate all grounds why the information is a SUMMARY: The U.S. Nuclear Regulatory trade secret or commercial or financial change. Data will be collected in a Commission (NRC) has recently variety of NPS and other sites from information that is privileged or submitted to OMB for review the confidential. June–Aug, 2010. Results will help following proposal for the collection of NASA and other managers of the Earth The public may examine and have information under the provisions of the copied for a fee publicly available to Sky partnership assess the success of Paperwork Reduction Act of 1995 (44 the partnership efforts and help refine documents, including the final U.S.C. chapter 35). The NRC hereby supporting statement, at the NRC’s PDR, and encourage the continued informs potential respondents that an collaboration. Room O1–F21, One White Flint North, agency may not conduct or sponsor, and 11555 Rockville Pike, Rockville, II. Method of Collection that a person is not required to respond Maryland 20852. OMB clearance to, a collection of information unless it An on-site survey will be requests are available at the NRC Web displays a currently valid OMB control administered to visitors in order to site: http://www.nrc.gov/public-involve/ number. The NRC published a Federal collect the data. doc-comment/omb/index.html. The Register notice with a 60-day comment document will be available on the NRC III. Data period on this information collection on home page site for 60 days after the Title: An assessment of global climate July 7, 2011 (76 FR 39906). signature date of this notice. change in visitors to National Park 1. Type of submission, new, revision, Comments and questions should be Service sites and other public lands. or extension: Revision. directed to the OMB reviewer listed OMB Number: 2700–0146. 2. The title of the information below by October 31, 2011. Comments Type of Review: Renewal. collection: 10 CFR part 9, Public received after this date will be Affected Public: Individuals or Records. considered if it is practical to do so, but 3. Current OMB approval number: households. assurance of consideration cannot be 3150–0043. Estimated Number of Respondents: given to comments received after this 4. The form number if applicable: 1,200. date. Estimated Time per Response: NRC Forms 509 and 509A. Chad Whiteman, Desk Officer, Office of Voluntary. 5. How often the collection is Estimated Total Annual Burden required: On occasion. Information and Regulatory Affairs Hours: 322.5. 6. Who will be required or asked to (3150–0043), NEOB–10202, Office of Estimated Total Annual Cost: $0. report: Individuals requesting access to Management and Budget, records under the Freedom of Washington, DC 20503. IV. Requests for Comments Information (FOIA) or Privacy Acts Comments can also be e-mailed to Comments are invited on: (1) Whether (PA), through the Public Document [email protected] or submitted the proposed collection of information Room (PDR), and submitters of by telephone at 202–395–4718.

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The NRC Clearance Officer is 9. An estimate of the total number of NUCLEAR REGULATORY Tremaine Donnell, 301–415–6258. hours needed annually to complete the COMMISSION Dated at Rockville, Maryland, this 23rd day requirement or request: 32,690. of September, 2011. 10. Abstract: Part 36 contains [NRC–2011–0225] requirements for the issuance of a For the Nuclear Regulatory Commission. Closure of the U.S. Nuclear Regulatory Tremaine Donnell, license authorizing the use of sealed sources containing radioactive materials Commission’s Two White Flint North NRC Clearance Officer, Office of Information Building Entrance Services. in irradiators used to irradiate objects or materials for a variety of purposes in [FR Doc. 2011–25024 Filed 9–28–11; 8:45 am] AGENCY: Nuclear Regulatory research, industry, and other fields. The Commission. BILLING CODE 7590–01–P subparts cover specific requirements for ACTION: Notice of closure. obtaining a license or license NUCLEAR REGULATORY exemption, design and performance SUMMARY: The U.S. Nuclear Regulatory COMMISSION criteria for irradiators; and radiation Commission (NRC) is providing notice safety requirements for operating that beginning Monday, October 3, irradiators, including requirements for [Docket No. NRC–2011–0122] 2011, all visitors to the NRC White Flint operator training, written operating and Complex headquarters shall be required Agency Information Collection emergency procedures, personnel to enter through the recently renovated Activities: Submission for the Office of monitoring, radiation surveys, One White Flint North (OWFN) building Management and Budget (OMB) inspection, and maintenance. Part 36 entrance lobby. Only NRC badged Review; Comment Request also contains the recordkeeping and employees and contractors shall be reporting requirements that are permitted to use the Two White Flint AGENCY: Nuclear Regulatory necessary to ensure that the irradiator is North (TWFN) building entrance. NRC Commission. being safely operated so that it does not staff shall meet visitors in the OWFN ACTION: Notice of the OMB review of pose any danger to the health and safety lobby waiting area and escort them to information collection and solicitation of the general public and the irradiator their destination. of public comment. employees. DATES: The TWFN building entrance The public may examine and have shall be closed to all NRC visitors SUMMARY: The U.S. Nuclear Regulatory copied for a fee publicly available beginning Monday, October 3, 2011. Commission (NRC) has recently documents, including the final ADDRESSES: One White Flint North is submitted to OMB for review the supporting statement, at the NRC’s located at 11555 Rockville Pike, following proposal for the collection of Public Document Room, Room O1–F21, Rockville, MD 20852–2738. Two White information under the provisions of the One White Flint North, 11555 Rockville Flint North is located at 11545 Rockville Paperwork Reduction Act of 1995 (44 Pike, Rockville, Maryland 20852. OMB Pike, Rockville, MD 20852–2738. U.S.C. Chapter 35). The NRC hereby clearance requests are available at the informs potential respondents that an NRC Web site: http://www.nrc.gov/ FOR FURTHER INFORMATION CONTACT: Gary agency may not conduct or sponsor, and public-involve/doc-comment/omb/ Simpler, Office of Administration, U.S. that a person is not required to respond index.html. The document will be Nuclear Regulatory Commission, to, a collection of information unless it available on the NRC home page site for Washington, DC 20555–0001; telephone: displays a currently valid OMB control 60 days after the signature date of this 301–415–5002, e-mail: Gary.Simpler@ number. The NRC published a Federal notice. nrc.gov. Register notice with a 60-day comment Comments and questions should be Dated at Rockville, Maryland, this 23rd day period on this information collection on directed to the OMB reviewer listed of September, 2011. July 5, 2011 (76 FR 39132). below by October 28, 2011. Comments For the U.S. Nuclear Regulatory 1. Type of submission, new, revision, received after this date will be Commission. or extension: Extension. considered if it is practical to do so, but Cindy Bladey, 2. The title of the information assurance of consideration cannot be Acting Director, Division of Administrative collection: 10 CFR part 36—Licenses given to comments received after this Services, Office of Administration. and Radiation Safety Requirements for date. [FR Doc. 2011–25061 Filed 9–28–11; 8:45 am] Irradiators. OMB Reviewer: Chad Whiteman, Desk BILLING CODE 7590–01–P 3. Current OMB approval number: Officer, Office of Information and 3150–0158. Regulatory Affairs (3150–0158), NEOB– 4. The form number if applicable: 10202, Office of Management and NUCLEAR REGULATORY N/A. Budget, Washington, DC 20503. COMMISSION 5. How often the collection is Comments can also be e-mailed to required: Annually. [email protected] or submitted [Docket No. 70–0036; NRC–2009–0278] 6. Who will be required or asked to by telephone at 202–395–4718. report: Irradiator licensees licensed by Environmental Assessment and The NRC Clearance Officer is Finding of No Significant Impact for a NRC or an Agreement State. Tremaine Donnell, 301–415–6258. 7. An estimate of the number of License Amendment to Materials annual responses: 79 (9 for reporting Dated at Rockville, Maryland, this 23rd day License No. SNM–33; Westinghouse [1.3 NRC licensee and 7.8 Agreement of September, 2011. Electric Company, LLC, Hematite State licensees] and 70 for For the Nuclear Regulatory Commission. Decommissioning Project, Hematite, recordkeepers [10 NRC licensees and 60 Tremaine Donnell, MO Agreement State licensees]). NRC Clearance Officer, Office of Information AGENCY: Nuclear Regulatory 8. The estimated number of annual Services. Commission. respondents: 70 (10 NRC licensees and [FR Doc. 2011–25025 Filed 9–28–11; 8:45 am] ACTION: Notice of availability. 60 Agreement State licensees). BILLING CODE 7590–01–P

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FOR FURTHER INFORMATION CONTACT: John contingent upon the NRC staff’s site and inhales potentially J. Hayes, Senior Project Manager, approval of the licensee’s final status contaminated air. The specific release Decommissioning and Uranium survey report and making the findings criteria for all environmental pathways Recovery Licensing Directorate, required by the Commission’s at the site is 25 mrem/yr expressed as Division of Waste Management and regulations following completion of the the total effective dose equivalent Environmental Protection, Office of licensee’s decommissioning activate. (TEDE). The NRC has independently Federal and State Materials and The WEC’s request for the proposed confirmed the WEC calculations Environmental Management Programs, amendment was previously noticed in contained in the site’s DP demonstrate U.S. Nuclear Regulatory Commission, the Federal Register on December 8, that the release criteria have been met Washington, DC 20555, telephone: 301– 2009 with a notice of an opportunity to and have documented in the NRC SER 415–5928; fax number: 301–415–5369; request a hearing. that the actions associated with the e-mail: [email protected]. The NRC staff has prepared an decommissioning can be done safely. SUPPLEMENTARY INFORMATION: environmental assessment (EA) (Agency The offsite transport of radioactively Documents Access and Management contaminated material by rail car to an I. Introduction System (ADAMS) ML111020620) in offsite facility located in Idaho was also The U.S. Nuclear Regulatory support of this amendment. The NRC confirmed in the NRC evaluations and Commission (NRC) is considering the evaluated whether there are significant is of such low activity that it meets the issuance of a license amendment to environment impacts related to the NRC criteria for disposal at a non-NRC Special Nuclear Material (SNM) License proposed action and considered or Agreement State LLRM licensed number SNM–33, issued to whether the impacts were adverse or disposal facility. Westinghouse Electric Company, LLC positive and evaluated the cumulative The results of these calculations (WEC) to authorize decommissioning of impacts. The proposed action is to confirm that the radiological the former Hematite Fuel Cycle Facility excavate and remove an estimated environmental impacts from the in Hematite, Missouri for unrestricted 3 3 23,000 m (30,000 yd ) of contaminated proposed amendment are bounded by use and termination of this license. The waste and soil from known and the impacts evaluated in NUREG–1496, NRC has prepared an Environmental suspected burial sites as well as ‘‘Generic Environmental Impact Assessment (EA) in support of this contamination beneath building floor Statement in Support of Rulemaking on amendment in accordance with the slabs and the site’s evaporation pond. Radiological Criteria for License requirements of Title 10 of the Code of The waste will be shipped out of the Termination of NRC–Licensed Federal Regulations (10 CFR) part 51. state by train for disposal at an Facilities,’’ Vols. 1, 2, and 3, dated July Based on the EA, the NRC has approved facility. 1997 (ADAMS ML042310492, concluded that a Finding of No The EA evaluated the environmental ML042320379, and ML042330385) and Significant Impact (FONSI) is impact that would result from the NUREG–0170, ‘‘Final Environmental appropriate. The amendment will be removal of concrete building slabs that Statement on the Transportation of issued following the publication of this remained from the previously approved Radioactive Materials by Air and Other Notice. building demolition phase of the site’s Modes,’’ Vols. 1 and 2, dated December decommissioning, the removal of buried II. EA Summary 1977 (ADAMS ML022590355 and waste, the removal of surface, ML022590511). The staff has also found The purpose of the proposed subsurface soil and contaminated that the non-radiological impacts amendment is to authorize the sediments. The primary areas of concern associated with the proposed decommissioning of the licensee’s expressed by members of the public amendment are not significant. On the Hematite, Missouri facility for were the potential for ground and basis of the EA, the NRC has concluded unrestricted use to allow for license surface water contamination, the that there are no significant termination. The original special potential for exposure to members of the environmental impacts from the nuclear material license for the public to contamination and local proposed amendment and has Hematite facility was issued to impacts on transportation and traffic determined not to prepare an Mallinckrodt Chemical Works (MCW) congestion. Other areas evaluated environmental impact statement. on June 18, 1956. In April 2000, the included impacts to ecological Hematite facility was purchased by resources, air quality, socioeconomic, IV. Further Information British Nuclear Fuels Limited (BNFL). noise, historical and cultural sites and At the time of the purchase, BNFL was visual and scenic areas. Documents related to this action, the parent corporation to WEC and the including the application for Hematite operations were consolidated III. Finding of No Significant Impact amendment and supporting into the WEC nuclear operations. On The regulatory basis for the documentation, are available online in August 12, 2009, WEC requested that unrestricted use is found in 10 CFR the NRC Library at http://www.nrc.gov/ NRC approve the decommissioning plan 20.1402 and is based on the total reading-rm/adams.html. From this page, for the facility which, when completed, exposure to the average member of the the public can gain entry into ADAMS, would permit the site to be released for most critical group. For the WEC site the which provides text and image files of unrestricted use. Final approval for most critical group is that of a resident the NRC’s public documents. The release of the site for unrestricted use farmer who lives on the site and obtains ADAMS accession numbers for the and license termination would be his food and drinking water from the documents related to this notice are:

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Document ADAMS No.

Decommissioning Plan ...... ML092330123, ML092330125, ML092330127, ML092330129, ML092330131, and ML092330132. Environmental Report ...... ML092870403 and ML092870405. Radiological Characterization Report ...... ML092870496 and ML092870506. Supplemental Characterization Report ...... ML093430818, ML093430819, ML093430821, and ML093430822. Historical Site Assessment ...... ML092870417, and ML092870418. Site Specific Soil Parameters ...... ML093430808. Determination of Distribution Coefficients for Radionuclides of Concern at the Westinghouse Hema- ML093430811. tite Facility. Supplemental Analysis of Hydrogeologic Conditions in Overburden at Westinghouse Hematite Facil- ML093430807. ity, Hematite, Missouri. NRC Staff Environmental Assessment ...... ML111020620. NUREG–0170, ‘‘Final Environmental Statement on the Transportation of Radioactive Materials by Air ML022590355 and Other Modes,’’ Vols. 1 and 2, dated December 1977. and ML022590511. NUREG–1496, ‘‘Generic Environmental Impact Statement in Support of Rulemaking on Radiological ML042310492, Criteria for License Termination of NRC–Licensed Facilities,’’ Vols. 1, 2, and 3, dated July 1997. ML042320379, and ML042330385.

If you do not have access to ADAMS STATUS: Hearing OPEN to the Public at made available, upon written request to or if there are problems in accessing the 2 p.m. OPIC’s Corporate Secretary, at the cost documents located in ADAMS, contact PURPOSE: Public Hearing in conjunction of reproduction. the NRC Public Document Room (PDR) with each meeting of OPIC’s Board of Written summaries of the projects to reference staff at 1–800–397–4209, 301– Directors, to afford an opportunity for be presented at the October 27, 2011 415–4737 or by e-mail to any person to present views regarding Board meeting will be posted on OPIC’s [email protected]. the activities of the Corporation web site on or about Friday, October 7, These documents may also be viewed PROCEDURES: 2011. electronically on the public computers Individuals wishing to address the CONTACT PERSON FOR INFORMATION: located at the NRC’s Public Document hearing orally must provide advance Information on the hearing may be Room (PDR), O 1 F21, One White Flint notice to OPIC’s Corporate Secretary no obtained from Connie M. Downs at (202) North, 11555 Rockville Pike, Rockville, later than 5 PM Friday, October 14, 336–8438, via facsimile at (202) 408– MD 20852. The PDR reproduction 2011. The notice must include the 0297, or via e-mail at contractor will copy documents for a individual’s name, title, organization, [email protected]. fee. address, and telephone number, and a Dated: September 26, 2011. Dated at Rockville, Maryland this 23rd day concise summary of the subject matter of September, 2011. to be presented. Connie M. Downs, For the Nuclear Regulatory Commission. Oral presentations may not exceed ten OPIC Corporate Secretary. Paul Michalak, (10) minutes. The time for individual [FR Doc. 2011–25124 Filed 9–26–11; 4:15 pm] Acting Deputy Director, Decommissioning presentations may be reduced BILLING CODE 3210–01–P and Uranium Recovery Licensing Directorate, proportionately, if necessary, to afford Division of Waste Management and all participants who have submitted a Environmental Protection, Office of Federal timely request an opportunity to be POSTAL REGULATORY COMMISSION and State Materials and Environmental heard. Management Programs. Participants wishing to submit a [Docket No. A2011–78; Order No. 867] [FR Doc. 2011–25063 Filed 9–28–11; 8:45 am] written statement for the record must BILLING CODE 7590–01–P submit a copy of such statement to Post Office Closing OPIC’s Corporate Secretary no later than 5 PM Friday, October 14, 2011. Such AGENCY: Postal Regulatory Commission. OVERSEAS PRIVATE INVESTMENT statement must be typewritten, double- ACTION: Notice. CORPORATION spaced, and may not exceed twenty-five (25) pages. SUMMARY: This document informs the Sunshine Notice, Public Hearing, Upon receipt of the required notice, public that an appeal of the closing of October 19, 2011 OPIC will prepare an agenda, which the Smyrna, New York post office has will be available at the hearing, that been filed. It identifies preliminary TIME AND DATE: 2 p.m., Wednesday, identifies speakers, the subject on which steps and provides a procedural October 19, 2011. each participant will speak, and the schedule. Publication of this document PLACE: Offices of the Corporation, time allotted for each presentation. will allow the Postal Service, Twelfth Floor Board Room, 1100 New A written summary of the hearing will petitioners, and others to take York Avenue, NW., Washington, DC. be compiled, and such summary will be appropriate action.

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DATES: Administrative record due (from Commission reviews it, the Commission rights from documents filed in this Postal Service): October 6, 2011; may find that there are more legal issues proceeding. deadline for notices to intervene: than the one set forth above, or that the Intervention. Persons, other than October 18, 2011. See the Procedural Postal Service’s determination disposes Petitioner and respondent, wishing to be Schedule in the SUPPLEMENTARY of one or more of those issues. The heard in this matter are directed to file INFORMATION section for other dates of deadline for the Postal Service to file the a notice of intervention. See 39 CFR interest. applicable administrative record with 3001.111(b). Notices of intervention in ADDRESSES: Submit comments the Commission is October 6, 2011. See this case are to be filed on or before electronically by accessing the ‘‘Filing 39 CFR 3001.113. In addition, the due October 18, 2011. A notice of Online’’ link in the banner at the top of date for any responsive pleading by the intervention shall be filed using the the Commission’s Web site (http://www. Postal Service to this Notice is October Internet (Filing Online) at the prc.gov) or by directly accessing the 6, 2011. Commission’s Web site unless a waiver Commission’s Filing Online system at Availability; Web site posting. The is obtained for hardcopy filing. See 39 https://www.prc.gov/prc-pages/filing- Commission has posted the appeal and CFR 3001.9(a) and 3001.10(a). online/login.aspx. Commenters who supporting material on its Web site at Further procedures. By statute, the cannot submit their views electronically http://www.prc.gov. Additional filings Commission is required to issue its should contact the person identified in in this case and participants’ decision within 120 days from the date the FOR FURTHER INFORMATION CONTACT submissions also will be posted on the it receives the appeal. See 39 U.S.C. section as the source for case-related Commission’s Web site, if provided in 404(d)(5). A procedural schedule has information for advice on alternatives to electronic format or amenable to been developed to accommodate this electronic filing. conversion, and not subject to a valid statutory deadline. In the interest of FOR FURTHER INFORMATION CONTACT: protective order. Information on how to expedition, in light of the 120-day Stephen L. Sharfman, General Counsel, use the Commission’s Web site is decision schedule, the Commission may at 202–789–6820 (case-related available online or by contacting the request the Postal Service or other information) or [email protected] Commission’s webmaster via telephone participants to submit information or (electronic filing assistance). at 202–789–6873 or via electronic mail memoranda of law on any appropriate SUPPLEMENTARY INFORMATION: Notice is at [email protected]. issue. As required by the Commission hereby given that, pursuant to 39 U.S.C. The appeal and all related documents rules, if any motions are filed, responses 404(d), on September 21, 2011, the are also available for public inspection are due 7 days after any such motion is Commission received a petition for in the Commission’s docket section. filed. See 39 CFR 3001.21. Docket section hours are 8 a.m. to 4:30 review of the Postal Service’s It is ordered: determination to close the Smyrna post p.m., eastern time, Monday through 1. The Postal Service shall file the office in Smyrna, New York. The Friday, except on Federal government applicable administrative record petition was filed by Marie Whaley holidays. Docket section personnel may regarding this appeal no later than (Petitioner) and is postmarked be contacted via electronic mail at prc- October 6, 2011. September 13, 2011. The Commission [email protected] or via telephone at hereby institutes a proceeding under 39 202–789–6846. 2. Any responsive pleading by the U.S.C. 404(d)(5) and establishes Docket Filing of documents. All filings of Postal Service to this notice is due no No. A2011–78 to consider Petitioner’s documents in this case shall be made later than October 6, 2011. appeal. If Petitioner would like to using the Internet (Filing Online) 3. The procedural schedule listed further explain her position with pursuant to Commission rules 9(a) and below is hereby adopted. supplemental information or facts, 10(a) at the Commission’s Web site, 4. Pursuant to 39 U.S.C. 505, Emmett Petitioner may either file a Participant http://www.prc.gov, unless a waiver is Rand Costich is designated officer of the Statement on PRC Form 61 or file a brief obtained. See 39 CFR 3001.9(a) and Commission (Public Representative) to with the Commission no later than 3001.10(a). Instructions for obtaining an represent the interests of the general October 26, 2011. account to file documents online may be public. found on the Commission’s Web site or Categories of issues apparently raised. 5. The Secretary shall arrange for by contacting the Commission’s docket Petitioner contends that the Postal publication of this notice and order in section at [email protected] or via Service failed to consider the effect of the Federal Register. the closing on the community. See 39 telephone at 202–789–6846. U.S.C. 404(d)(2)(A)(i). The Commission reserves the right to By the Commission. After the Postal Service files the redact personal information which may Ruth Ann Abrams, administrative record and the infringe on an individual’s privacy Acting Secretary.

PROCEDURAL SCHEDULE

September 21, 2011 ...... Filing of Appeal. October 6, 2011 ...... Deadline for the Postal Service to file the applicable administrative record in this appeal. October 6, 2011 ...... Deadline for the Postal Service to file any responsive pleading. October 18, 2011 ...... Deadline for notices to intervene (see 39 CFR 3001.111(b)). October 26, 2011 ...... Deadline for Petitioners’ Form 61 or initial brief in support of petition (see 39 CFR 3001.115(a) and (b)). November 15, 2011 ...... Deadline for answering brief in support of the Postal Service (see 39 CFR 3001.115(c)). November 30, 2011 ...... Deadline for reply briefs in response to answering briefs (see 39 CFR 3001.115(d)). December 7, 2011 ...... Deadline for motions by any party requesting oral argument; the Commission will schedule oral argument only when it is a necessary addition to the written filings (see 39 CFR 3001.116). January 11, 2012 ...... Expiration of the Commission’s 120-day decisional schedule (see 39 U.S.C. 404(d)(5)).

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[FR Doc. 2011–25013 Filed 9–28–11; 8:45 am] Categories of issues apparently raised. 10(a) at the Commission’s Web site, BILLING CODE 7710–FW–P Petitioner contends that: (1) The Postal http://www.prc.gov, unless a waiver is Service failed to consider the effect of obtained. See 39 CFR 3001.9(a) and the closing on the community (see 39 3001.10(a). Instructions for obtaining an POSTAL REGULATORY COMMISSION U.S.C. 404(d)(2)(A)(i)); (2) the Postal account to file documents online may be [Docket No. A2011–81; Order No. 870] Service failed to consider whether or found on the Commission’s Web site or not it will continue to provide a by contacting the Commission’s docket Post Office Closing maximum degree of effective and section at [email protected] or via regular postal services to the community telephone at 202–789–6846. AGENCY: Postal Regulatory Commission. (see 39 U.S.C. 404(d)(2)(A)(iii)); and (3) The Commission reserves the right to ACTION: Notice. the Postal Service failed to adequately redact personal information which may consider the economic savings resulting infringe on an individual’s privacy SUMMARY: This document informs the from the closure (see 39 U.S.C. rights from documents filed in this public that an appeal of the closing of 404(d)(2)(A)(iv)). proceeding. the Clarksville, New York post office After the Postal Service files the Intervention. Persons, other than has been filed. It identifies preliminary administrative record and the steps and provides a procedural Petitioner and respondent, wishing to be Commission reviews it, the Commission heard in this matter are directed to file schedule. Publication of this document may find that there are more legal issues will allow the Postal Service, a notice of intervention. See 39 CFR than those set forth above, or that the 3001.111(b). Notices of intervention in petitioners, and others to take Postal Service’s determination disposes appropriate action. this case are to be filed on or before of one or more of those issues. The October 18, 2011. A notice of DATES: Administrative record due (from deadline for the Postal Service to file the intervention shall be filed using the Postal Service): October 6, 2011; applicable administrative record with Internet (Filing Online) at the deadline for notices to intervene: the Commission is October 6, 2011. See Commission’s Web site unless a waiver October 18, 2011. See the Procedural 39 CFR 3001.113. In addition, the due is obtained for hardcopy filing. See 39 Schedule in the SUPPLEMENTARY date for any responsive pleading by the CFR 3001.9(a) and 3001.10(a). INFORMATION section for other dates of Postal Service to this Notice is October Further procedures. By statute, the interest. 6, 2011. Application for Suspension of Commission is required to issue its ADDRESSES: Submit comments decision within 120 days from the date electronically by accessing the ‘‘Filing Determination. In addition to his Petition, Peter Henner, et al. filed an it receives the appeal. See 39 U.S.C. Online’’ link in the banner at the top of 404(d)(5). A procedural schedule has the Commission’s Web site (http:// application for suspension of the Postal Service’s determination (see 39 CFR been developed to accommodate this www.prc.gov) or by directly accessing statutory deadline. In the interest of the Commission’s Filing Online system 3001.114). Commission rules allow for the Postal Service to file an answer to expedition, in light of the 120-day at https://www.prc.gov/prc-pages/filing- decision schedule, the Commission may online/login.aspx. Commenters who such application within 10 days after the application is filed. The Postal request the Postal Service or other cannot submit their views electronically participants to submit information or should contact the person identified in Service shall file an answer to the application no later than October 3, memoranda of law on any appropriate the FOR FURTHER INFORMATION CONTACT issue. As required by the Commission section as the source for case-related 2011. Availability; Web site posting. The rules, if any motions are filed, responses information for advice on alternatives to Commission has posted the appeal and are due 7 days after any such motion is electronic filing. supporting material on its Web site at filed. See 39 CFR 3001.21. FOR FURTHER INFORMATION CONTACT: http://www.prc.gov. Additional filings It is ordered: Stephen L. Sharfman, General Counsel, in this case and participants’ 1. The Postal Service shall file an at 202–789–6820 (case-related submissions also will be posted on the answer to the application for suspension information) or [email protected] Commission’s Web site, if provided in of the Postal Service’s determination no (electronic filing assistance). electronic format or amenable to later than October 3, 2011. SUPPLEMENTARY INFORMATION: Notice is conversion, and not subject to a valid 2. The Postal Service shall file the hereby given that, pursuant to 39 U.S.C. protective order. Information on how to applicable administrative record 404(d), on September 21, 2011, the use the Commission’s Web site is regarding this appeal no later than Commission received a petition for available online or by contacting the October 6, 2011. review of the Postal Service’s Commission’s webmaster via telephone 3. Any responsive pleading by the determination to close the Clarksville at 202–789–6873 or via electronic mail Postal Service to this Notice is due no post office in Clarksville, New York. at [email protected]. later than October 6, 2011. The petition was filed online by Peter The appeal and all related documents 4. The procedural schedule listed Henner, et al. (Petitioner) and included are also available for public inspection below is hereby adopted. an application for suspension. The in the Commission’s docket section. 5. Pursuant to 39 U.S.C. 505, Patricia Commission hereby institutes a Docket section hours are 8 a.m. to 4:30 A. Gallagher is designated officer of the proceeding under 39 U.S.C. 404(d)(5) p.m., eastern time, Monday through Commission (Public Representative) to and establishes Docket No. A2011–81 to Friday, except on Federal government represent the interests of the general consider Petitioner’s appeal. If holidays. Docket section personnel may public. Petitioner would like to further explain be contacted via electronic mail at prc- 6. The Secretary shall arrange for his position with supplemental [email protected] or via telephone at publication of this Notice and Order in information or facts, Petitioner may 202–789–6846. the Federal Register. either file a Participant Statement on Filing of documents. All filings of PRC Form 61 or file a brief with the documents in this case shall be made By the Commission. Commission no later than October 26, using the Internet (Filing Online) Shoshana M. Grove, 2011. pursuant to Commission rules 9(a) and Secretary.

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PROCEDURAL SCHEDULE

September 21, 2011 ...... Filing of Appeal. October 3, 2011 ...... Deadline for the Postal Service to file an answer responding to application for suspension. October 6, 2011 ...... Deadline for the Postal Service to file the applicable administrative record in this appeal. October 6, 2011 ...... Deadline for the Postal Service to file any responsive pleading. October 18, 2011 ...... Deadline for notices to intervene (see 39 CFR 3001.111(b)). October 26, 2011 ...... Deadline for Petitioners’ Form 61 or initial brief in support of petition (see 39 CFR 3001.115(a) and (b)). November 15, 2011 ...... Deadline for answering brief in support of the Postal Service (see 39 CFR 3001.115(c)). November 30, 2011 ...... Deadline for reply briefs in response to answering briefs (see 39 CFR 3001.115(d)). December 7, 2011 ...... Deadline for motions by any party requesting oral argument; the Commission will schedule oral argument only when it is a necessary addition to the written filings (see 39 CFR 3001.116). January 19, 2012 ...... Expiration of the Commission’s 120-day decisional schedule (see 39 U.S.C. 404(d)(5)).

[FR Doc. 2011–25065 Filed 9–28–11; 8:45 am] post office in Tariffville, Connecticut. Docket section hours are 8 a.m. to 4:30 BILLING CODE 7710–FW–P The first petition was filed by Mary A. p.m., eastern time, Monday through Glassman on behalf of the Town of Friday, except on Federal government Simsbury. The second petition was filed holidays. Docket section personnel may POSTAL REGULATORY COMMISSION by Theresa Salb. Both petitions are be contacted via electronic mail at prc- postmarked September 9, 2011. The [email protected] or via telephone at [Docket No. A2011–80; Order No. 869] Commission hereby institutes a 202–789–6846. Post Office Closing proceeding under 39 U.S.C. 404(d)(5) Filing of documents. All filings of and establishes Docket No. A2011–80 to documents in this case shall be made AGENCY: Postal Regulatory Commission. consider Petitioners’ appeal. If using the Internet (Filing Online) ACTION: Notice. Petitioners would like to further explain pursuant to Commission rules 9(a) and their position with supplemental 10(a) at the Commission’s Web site, SUMMARY: This document informs the information or facts, Petitioners may http://www.prc.gov, unless a waiver is public that an appeal of the closing of either file a Participant Statement on obtained. See 39 CFR 3001.9(a) and the Tarrifville, Connecticut post office PRC Form 61 or file a brief with the 3001.10(a). Instructions for obtaining an has been filed. It identifies preliminary Commission no later than October 26, account to file documents online may be steps and provides a procedural 2011. found on the Commission’s Web site or schedule. Publication of this document Categories of issues apparently raised. by contacting the Commission’s docket will allow the Postal Service, Petitioners contend that the Postal section at [email protected] or via petitioners, and others to take Service failed to consider the effect of telephone at 202–789–6846. appropriate action. the closing on the community. See 39 The Commission reserves the right to DATES: Administrative record due (from U.S.C. 404(d)(2)(A)(i). redact personal information which may Postal Service): October 6, 2011; After the Postal Service files the infringe on an individual’s privacy deadline for notices to intervene: administrative record and the rights from documents filed in this October 18, 2011. See the Procedural Commission reviews it, the Commission proceeding. Schedule in the SUPPLEMENTARY may find that there are more legal issues Intervention. Persons, other than INFORMATION section for other dates of than the one set forth above, or that the Petitioners and respondent, wishing to interest. Postal Service’s determination disposes be heard in this matter are directed to of one or more of those issues. The file a notice of intervention. See 39 CFR ADDRESSES: Submit comments deadline for the Postal Service to file the 3001.111(b). Notices of intervention in electronically by accessing the ‘‘Filing applicable administrative record with this case are to be filed on or before Online’’ link in the banner at the top of the Commission is October 6, 2011. See October 18, 2011. A notice of the Commission’s Web site (http:// 39 CFR 3001.113. In addition, the due intervention shall be filed using the www.prc.gov) or by directly accessing date for any responsive pleading by the Internet (Filing Online) at the the Commission’s Filing Online system Postal Service to this Notice is October Commission’s Web site unless a waiver at https://www.prc.gov/prc-pages/filing- 6, 2011. is obtained for hardcopy filing. See 39 online/login.aspx. Commenters who Availability; Web site posting. The CFR 3001.9(a) and 3001.10(a). cannot submit their views electronically Commission has posted the appeal and Further procedures. By statute, the should contact the person identified in supporting material on its Web site at Commission is required to issue its FOR FURTHER INFORMATION CONTACT the http://www.prc.gov. Additional filings decision within 120 days from the date section as the source for case-related in this case and participants’ it receives the appeal. See 39 U.S.C. information for advice on alternatives to submissions also will be posted on the 404(d)(5). A procedural schedule has electronic filing. Commission’s Web site, if provided in been developed to accommodate this FOR FURTHER INFORMATION CONTACT: electronic format or amenable to statutory deadline. In the interest of Stephen L. Sharfman, General Counsel, conversion, and not subject to a valid expedition, in light of the 120-day at 202–789–6820 (case-related protective order. Information on how to decision schedule, the Commission may information) or [email protected] use the Commission’s Web site is request the Postal Service or other (electronic filing assistance). available online or by contacting the participants to submit information or SUPPLEMENTARY INFORMATION: Notice is Commission’s webmaster via telephone memoranda of law on any appropriate hereby given that, pursuant to 39 U.S.C. at 202–789–6873 or via electronic mail issue. As required by the Commission 404(d), on September 21, 2011, the at [email protected]. rules, if any motions are filed, responses Commission received two petitions for The appeal and all related documents are due 7 days after any such motion is review of the Postal Service’s are also available for public inspection filed. See 39 CFR 3001.21. determination to close the Tariffville in the Commission’s docket section. It is ordered:

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1. The Postal Service shall file the 3. The procedural schedule listed 5. The Secretary shall arrange for applicable administrative record below is hereby adopted. publication of this notice and order in regarding this appeal no later than 4. Pursuant to 39 U.S.C. 505, the Federal Register. October 6, 2011. Cassandra L. Hicks is designated officer 2. Any responsive pleading by the of the Commission (Public By the Commission. Postal Service to this notice is due no Representative) to represent the Shoshana M. Grove, later than October 6, 2011. interests of the general public. Secretary.

PROCEDURAL SCHEDULE

September 21, 2011 ...... Filing of Appeal. October 6, 2011 ...... Deadline for the Postal Service to file the applicable administrative record in this appeal. October 6, 2011 ...... Deadline for the Postal Service to file any responsive pleading. October 18, 2011 ...... Deadline for notices to intervene (see 39 CFR 3001.111(b)). October 26, 2011 ...... Deadline for Petitioners’ Form 61 or initial brief in support of petition (see 39 CFR 3001.115(a) and (b)). November 15, 2011 ...... Deadline for answering brief in support of the Postal Service (see 39 CFR 3001.115(c)). November 30, 2011 ...... Deadline for reply briefs in response to answering briefs (see 39 CFR 3001.115(d)). December 7, 2011 ...... Deadline for motions by any party requesting oral argument; the Commission will schedule oral argument only when it is a necessary addition to the written filings (see 39 CFR 3001.116). January 9, 2012 ...... Expiration of the Commission’s 120-day decisional schedule (see 39 U.S.C. 404(d)(5)).

[FR Doc. 2011–25045 Filed 9–28–11; 8:45 am] SUPPLEMENTARY INFORMATION: Notice is conversion, and not subject to a valid BILLING CODE 7710–FW–P hereby given that, pursuant to 39 U.S.C. protective order. Information on how to 404(d), on September 21, 2011, the use the Commission’s Web site is Commission received a petition for available online or by contacting the POSTAL REGULATORY COMMISSION review of the Postal Service’s Commission’s webmaster via telephone [Docket No. A2011–79; Order No. 868] determination to close the Algoma post at 202–789–6873 or via electronic mail office in Algoma, Mississippi. The at [email protected]. Post Office Closing petition was filed by Phyllis McGregor The appeal and all related documents (Petitioner) and is postmarked are also available for public inspection AGENCY: Postal Regulatory Commission. September 13, 2011. The Commission in the Commission’s docket section. ACTION: Notice. hereby institutes a proceeding under 39 Docket section hours are 8 a.m. to 4:30 U.S.C. 404(d)(5) and establishes Docket p.m., eastern time, Monday through SUMMARY: This document informs the No. A2011–79 to consider Petitioner’s Friday, except on Federal government public that an appeal of the closing of appeal. If Petitioner would like to holidays. Docket section personnel may the Algoma, Mississippi post office has further explain her position with be contacted via electronic mail at prc- been filed. It identifies preliminary supplemental information or facts, [email protected] or via telephone at steps and provides a procedural Petitioner may either file a Participant 202–789–6846. schedule. Publication of this document Statement on PRC Form 61 or file a brief will allow the Postal Service, Filing of documents. All filings of with the Commission no later than petitioners, and others to take documents in this case shall be made October 26, 2011. appropriate action. using the Internet (Filing Online) Categories of issues apparently raised. pursuant to Commission rules 9(a) and DATES: Administrative record due (from Petitioner contends that the Postal 10(a) at the Commission’s Web site, Postal Service): October 6, 2011; Service failed to consider the effect of http://www.prc.gov, unless a waiver is deadline for notices to intervene: the closing on the community. See 39 obtained. See 39 CFR 3001.9(a) and October 18, 2011. See the Procedural U.S.C. 404(d)(2)(A)(i). 3001.10(a). Instructions for obtaining an SUPPLEMENTARY Schedule in the After the Postal Service files the account to file documents online may be INFORMATION section for other dates of administrative record and the found on the Commission’s Web site or interest. Commission reviews it, the Commission by contacting the Commission’s docket ADDRESSES: Submit comments may find that there are more legal issues section at [email protected] or via electronically by accessing the ‘‘Filing than the one set forth above, or that the telephone at 202–789–6846. Online’’ link in the banner at the top of Postal Service’s determination disposes The Commission reserves the right to the Commission’s Web site (http://www. of one or more of those issues. The redact personal information which may prc.gov) or by directly accessing the deadline for the Postal Service to file the infringe on an individual’s privacy Commission’s Filing Online system at applicable administrative record with rights from documents filed in this https://www.prc.gov/prc-pages/filing- the Commission is October 6, 2011. See proceeding. online/login.aspx. Commenters who 39 CFR 3001.113. In addition, the due Intervention. Persons, other than cannot submit their views electronically date for any responsive pleading by the Petitioner and respondent, wishing to be should contact the person identified in Postal Service to this Notice is October heard in this matter are directed to file the FOR FURTHER INFORMATION CONTACT 6, 2011. a notice of intervention. See 39 CFR section as the source for case-related Availability; Web site posting. The 3001.111(b). Notices of intervention in information for advice on alternatives to Commission has posted the appeal and this case are to be filed on or before electronic filing. supporting material on its Web site at October 18, 2011. A notice of FOR FURTHER INFORMATION CONTACT: http://www.prc.gov. Additional filings intervention shall be filed using the Stephen L. Sharfman, General Counsel, in this case and participants’ Internet (Filing Online) at the at 202–789–6820 (case-related submissions also will be posted on the Commission’s Web site unless a waiver information) or [email protected] Commission’s Web site, if provided in is obtained for hardcopy filing. See 39 (electronic filing assistance). electronic format or amenable to CFR 3001.9(a) and 3001.10(a).

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Further procedures. By statute, the rules, if any motions are filed, responses 4. Pursuant to 39 U.S.C. 505, Jeremy Commission is required to issue its are due 7 days after any such motion is L. Simmons is designated officer of the decision within 120 days from the date filed. See 39 CFR 3001.21. Commission (Public Representative) to it receives the appeal. See 39 U.S.C. It is ordered: represent the interests of the general 404(d)(5). A procedural schedule has 1. The Postal Service shall file the public. been developed to accommodate this applicable administrative record 5. The Secretary shall arrange for statutory deadline. In the interest of regarding this appeal no later than publication of this notice and order in expedition, in light of the 120-day October 6, 2011. decision schedule, the Commission may 2. Any responsive pleading by the the Federal Register. request the Postal Service or other Postal Service to this notice is due no By the Commission. participants to submit information or later than October 6, 2011. Ruth Ann Abrams, memoranda of law on any appropriate 3. The procedural schedule listed Acting Secretary. issue. As required by the Commission below is hereby adopted.

PROCEDURAL SCHEDULE

September 21, 2011 ...... Filing of Appeal. October 6, 2011 ...... Deadline for the Postal Service to file the applicable administrative record in this appeal. October 6, 2011 ...... Deadline for the Postal Service to file any responsive pleading. October 18, 2011 ...... Deadline for notices to intervene (see 39 CFR 3001.111(b)). October 26, 2011 ...... Deadline for Petitioners’ Form 61 or initial brief in support of petition (see 39 CFR 3001.115(a) and (b)). November 15, 2011 ...... Deadline for answering brief in support of the Postal Service (see 39 CFR 3001.115(c)). November 30, 2011 ...... Deadline for reply briefs in response to answering briefs (see 39 CFR 3001.115(d)). December 7, 2011 ...... Deadline for motions by any party requesting oral argument; the Commission will schedule oral argument only when it is a necessary addition to the written filings (see 39 CFR 3001.116). January 11, 2012 ...... Expiration of the Commission’s 120-day decisional schedule (see 39 U.S.C. 404(d)(5)).

[FR Doc. 2011–25023 Filed 9–28–11; 8:45 am] competitiveness in the 21st century. To for public inspection, including being BILLING CODE 7710–FW–P ensure that the United States attracts posted on the PCAST Web site. manufacturing activity and remains a FOR FURTHER INFORMATION CONTACT: leader in knowledge production, PCAST Information regarding the meeting OFFICE OF SCIENCE AND recommended in its June 2011 ‘‘Report agenda, time, location, and how to TECHNOLOGY POLICY to the President on Ensuring American register for the meeting is available on Leadership in Advanced the PCAST Web site at: http:// President’s Council of Advisors on Manufacturing’’ that the Federal whitehouse.gov/ostp/pcast/amp. Science and Technology; Notice of government create a fertile environment Questions about the meeting agenda Meeting: Open Regional Meeting of the for innovation and make investments to should be directed to [email protected]. President’s Council of Advisors on ensure that new technologies and design For questions regarding the facility and Science and Technology, Working methodologies are developed in the location-focused questions, please Group on Advanced Manufacturing United States, and that technology- contact those listed at http:// based enterprises have the infrastructure advancedmanufacturing.gatech.edu/ ACTION: Public Notice. to flourish here. contact. Please note that public seating On the basis of that report, President SUMMARY: This notice sets forth the for this meeting is limited and is Obama established PCAST’s AMP schedule and summary agenda for an available on a first-come, first-served Steering Committee to provide open regional meeting of the President’s basis. additional advice to the government on Council of Advisors on Science and how to catalyze investment in and SUPPLEMENTARY INFORMATION: The Technology (PCAST), Working Group deployment of emerging technologies President’s Council of Advisors on on Advanced Manufacturing, and with the potential to transform U.S. Science and Technology (PCAST) is an describes the functions of the Council manufacturing. In addition, the AMP advisory group of the nation’s leading and its Working Group. Steering Committee is to identify the scientists and engineers, appointed by DATES: October 14, 2011. collaborative approaches needed to the President to augment the science ADDRESSES: The meeting will be held at realize these opportunities. During this and technology advice available to him the Georgia Tech Hotel and Conference regional meeting, members of the public from inside the White House and from Center, 800 Spring Street, NW., Atlanta, will have an opportunity to provide cabinet departments and other Federal GA 30308. their thoughts on: agencies. See the Executive Order at Type of Meeting: Open. • Technology development. http://www.whitehouse.gov/ostp/pcast. Proposed Schedule and Agenda: The PCAST is consulted about and provides • Education and workforce President’s Council of Advisors on analyses and recommendations development. Science and Technology (PCAST), • concerning a wide range of issues where Working Group on Advanced Facility and infrastructure sharing. understandings from the domains of Manufacturing will hold its first • Policies that could create a fertile science, technology, and innovation regional meeting at the Georgia Institute innovation environment. may bear on the policy choices before of Technology in Atlanta, Georgia from Please note that because PCAST the President. PCAST is administered 8 a.m. to 2 p.m. on October 14, 2011. operates under the provisions of FACA, by the Office of Science and Technology Advanced manufacturing will provide all public comments and/or Policy (OSTP). PCAST is co-chaired by the basis for high-quality jobs for presentations will be treated as public Dr. John P. Holdren, Assistant to the Americans and sustain U.S. documents and will be made available President for Science and Technology,

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and Director, Office of Science and carry or clear customer accounts that Notice is hereby given that, pursuant Technology Policy, Executive Office of also have bank loans) that require an to the Paperwork Reduction Act of 1995 the President, The White House; and Dr. aggregate total of 2,295 hours to comply (44 U.S.C. 3501 et seq.) the Securities Eric S. Lander, President, Broad with the rule. Each of these and Exchange Commission (the Institute of the Massachusetts Institute approximately 102 registered broker- ‘‘Commission’’) is soliciting comments of Technology and Harvard. dealers makes an estimated 45 annual on the collection of information Meeting Accomodations: Individuals responses. Each response takes summarized below. The Commission requiring special accommodation to approximately 0.5 hours to complete. plans to submit this existing collection access this public meeting should e-mail Thus, the total compliance burden per of information to the Office of [email protected] at least ten business days year is 2,295 burden hours. Management and Budget for extension prior to the meeting so that appropriate Written comments are invited on: (a) and approval. arrangements can be made. Whether the proposed collection of The title for the collection of information is necessary for the proper information is ‘‘Form N–PX (17 CFR Ted Wackler, 274.129) under the Investment Deputy Chief of Staff. performance of the functions of the Commission, including whether the Company Act of 1940, Annual Report of [FR Doc. 2011–25000 Filed 9–28–11; 8:45 am] information shall have practical utility; Proxy Voting Record.’’ Rule 30b1–4 (17 BILLING CODE P (b) the accuracy of the Commission’s CFR 270.30b1–4) under the Investment estimates of the burden of the proposed Company Act of 1940 (15 U.S.C. 80a–1 collection of information; (c) ways to et seq.) requires every registered SECURITIES AND EXCHANGE enhance the quality, utility, and clarity management investment company, other COMMISSION of the information on respondents; and than a small business investment (d) ways to minimize the burden of the company registered on Form N–5 Proposed Collection; Comment (‘‘Funds’’), to file Form N–PX not later Request collection of information on respondents, including through the use than August 31 of each year. Funds use Form N–PX to file annual reports with Upon Written Request, Copies Available of automated collection techniques or the Commission containing their From: Securities and Exchange other forms of information technology. complete proxy voting record for the Commission, Office of Investor Consideration will be given to most recent twelve-month period ended Education and Advocacy, comments and suggestions submitted in Washington, DC 20549–0213. June 30. writing within 60 days of this The Commission estimates that there Extension: publication. are approximately 2,500 Funds Rule 15c2–1; SEC File No. 270–418; The Commission may not conduct or registered with the Commission, OMB Control No. 3235–0485. sponsor a collection of information representing approximately 10,000 Notice is hereby given that pursuant unless it displays a currently valid Fund portfolios, which are required to to the Paperwork Reduction Act of 1995 control number. No person shall be file Form N–PX.1 The 10,000 portfolios (44 U.S.C. 3501 et seq.), the Securities subject to any penalty for failing to are comprised of 6,200 portfolios and Exchange Commission comply with a collection of information holding equity securities and 3,800 (‘‘Commission’’) is soliciting comments subject to the PRA that does not display portfolios holding no equity securities. on the existing collection of information a valid Office of Management and The staff estimates that portfolios provided for in Rule 15c2–1, (17 CFR Budget (OMB) control number. holding no equity securities require 240.15c2–1), under the Securities Please direct your written comments approximately a 0.17 hour burden per Exchange Act of 1934 (15 U.S.C. 78a et to: Thomas Bayer, Director/Chief response and those holding equity seq.). The Commission plans to submit Information Officer, Securities and securities require 7.2 hours per this existing collection of information to Exchange Commission, c/o Remi Pavlik- response. The overall estimated annual the Office of Management and Budget Simon, 6432 General Green Way, burden is therefore approximately for extension and approval. Alexandria, Virginia 22312 or send an 45,300 hours ((6,200 responses × 7.2 Rule 15c2–1 prohibits the e-mail to: [email protected]. hours per response for equity holding commingling under the same lien of × Dated: September 23, 2011. portfolios) + (3,800 responses 0.17 securities of margin customers (a) with hours per response for non-equity Elizabeth M. Murphy, other customers without their written holding portfolios)). Based on the consent and (b) with the broker or Secretary. estimated wage rate, the total cost to the dealer. The rule also prohibits the [FR Doc. 2011–25077 Filed 9–28–11; 8:45 am] industry of the hour burden for rehypothecation of customers’ margin BILLING CODE 8011–01–P complying with Form N–PX would be securities for a sum in excess of the approximately $14.5 million. customer’s aggregate indebtedness. The Commission also estimates that Pursuant to Rule 15c2–1, respondents SECURITIES AND EXCHANGE portfolios holding equity securities will must collect information necessary to COMMISSION bear an external cost burden of $1,000 prevent the rehypothecation of customer per portfolio to prepare and update Proposed Collection; Comment securities in contravention of the rule, Form N–PX. Based on this estimate, the Request issue and retain copies of notices of hypothecation of customer securities in Upon Written Request, Copy Available 1 The estimate of 2,500 Funds is based on the accordance with the rule, and collect number of management investment companies From: Securities and Exchange currently registered with the Commission. We written consents from customers in Commission, Office of Investor estimate, based on data from the Investment accordance with the rule. The Education and Advocacy, Company Institute and other sources, that there are information is necessary to ensure Washington, DC 20549–0213. approximately 5,700 Fund portfolios that invest compliance with the rule, and to advise primarily in equity securities, 500 ‘‘hybrid’’ or bond Extension: portfolios that may hold some equity securities, customers of the rule’s protections. 3,200 bond Funds that hold no equity securities, There are approximately 102 Form N–PX, SEC File No. 270–524, and 600 money market Funds, for a total of 10,000 respondents (i.e., broker-dealers that OMB Control No. 3235–0582. portfolios required to file Form N–PX.

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Commission estimates that the total 19b–4 thereunder,2 a proposed rule Exchange approved proprietary systems annualized cost burden for Form N–PX change to allow Streaming Quote of members that interface with the is $6.2 million (6,200 responses × Traders (‘‘SQTs’’) and Remote Exchange’s electronic interface.6 $1,000 per response = $6,200,000). Streaming Quote Traders (‘‘RSQTs’’) to Currently, proprietary non-SQT ROT The collection of information under enter day limit orders. The proposed orders with a size of less than 10 Form N–PX is mandatory. The rule change was published for comment contracts have to be submitted as IOC information provided under the form is in the Federal Register on August 11, and larger orders may be submitted as not kept confidential. An agency may 2011.3 The Commission received no day limit and other order types; while not conduct or sponsor, and a person is comments on the proposal. This order proprietary SQT and RSQT orders may not required to respond to, a collection approves the proposal. only be submitted as IOC. of information unless it displays a currently valid OMB control number. II. Description of the Proposal The Exchange is proposing to put all Written comments are invited on: (a) The purpose of the proposal is to the ROTs (SQTs, RSQTs and non-SQT Whether the proposed collection of amend two subsections of Exchange ROTs) on an equal footing. Specifically, information is necessary for the proper Rule 1080 to allow entry of day limit the Exchange proposes to state in performance of the functions of the orders for the proprietary accounts of Commentary .04 that orders for the agency, including whether the SQTs and RSQTs. proprietary account(s) of SQTs, RSQTs, information will have practical utility; Current Rule 1080 (Phlx XL and XL II) and non-SQT ROTs with a size of less (b) the accuracy of the agency’s estimate discusses the Exchange’s enhanced than 10 contracts shall be submitted as of the burden of the collection of electronic order, trading, and execution IOC only. Thus, where SQT and RSQT information; (c) ways to enhance the system (the ‘‘electronic interface’’). The orders under the current rule could only quality, utility, and clarity of the current iteration of the Exchange’s be submitted as IOC, the proposed information collected; and (d) ways to electronic interface is known as Phlx XL change to Commentary .04 would allow minimize the burden of the collection of II.4 Rule 1080 states that it governs the these SQTs and RSQTs to enter non IOC information on respondents, including orders, execution reports and orders (e.g. day orders) in proprietary through the use of automated collection administrative order messages accounts if they are for 10 or more techniques or other forms of information transmitted between the offices of contracts. technology. Consideration will be given member organizations and the trading III. Discussion to comments and suggestions submitted floors of the Exchange. Rule 1080 also in writing within 60 days of this discusses what agency and proprietary After careful review, the Commission publication. orders are eligible for entry into the finds that the proposed rule change is Please direct your written comments Exchange’s electronic interface. consistent with the requirements of the to Thomas Bayer, Director/Chief Subsection (b)(i)(B)(2) states that the Act and the rules and regulations Information Officer, Securities and following types of orders for the thereunder applicable to a national proprietary account(s) of SQTs and Exchange Commission, c/o Remi Pavlik- securities exchange 7 and, in particular, RSQTs are eligible for entry via Simon, 6432 General Green Way, the requirements of Section 6 of the electronic interface: limit on opening, Alexandria, VA 22312; or send an Act.8 Specifically, the Commission finds _ IOC, and ISO. Currently, there is no e-mail to: PRA [email protected]. that the proposal is consistent with ability for SQTs and RSQTs to enter day Dated: September 23, 2011. Section 6(b)(5) of the Act,9 in that the limit orders in their proprietary Elizabeth M. Murphy, proposal has been designed to promote accounts. The proposal allows day limit just and equitable principles of trade, Secretary. orders for the proprietary account(s) of and to protect investors and the public [FR Doc. 2011–25076 Filed 9–28–11; 8:45 am] SQTs and RSQTs to be entered pursuant interest. The Commission believes that BILLING CODE 8011–01–P to subsection (b)(i)(B)(2). The proposed it is consistent with the Act for SQTs change will promote consistency among ROTs by allowing SQTs and RSQTs to and RSQTs to enter non IOC orders (e.g. SECURITIES AND EXCHANGE do what Rule 1080 and Commentary .04 day orders) in proprietary accounts if COMMISSION now allow non-SQT ROTs to do: enter they are for 10 or more contracts. The Commission believes that allowing [Release No. 34–65389; File No. SR–Phlx– certain day limit orders (10 or more 2011–101] contracts) in their proprietary accounts.5 these order types should help to Commentary .04 of Rule 1080 states enhance liquidity on the Exchange. The Self-Regulatory Organizations; that orders for the proprietary accounts Commission notes that SQTs and NASDAQ OMX PHLX LLC; Order of SQTs, RSQTs and non-SQT ROTs RSQTs would still be required to Approving Proposed Rule Change may be entered for delivery via comply with their electronic quoting Regarding Streaming Quote Traders electronic interface through the use of obligations. and Remote Streaming Quote Traders IV. Conclusion Entering Certain Option Day Limit 2 17 CFR 240.19b–4. Orders 3 See Securities Exchange Act Release No. 65050 It Is Therefore Ordered, pursuant to (August 5, 2011), 76 FR 49816. Section 19(b)(2) of the Act,10 that the September 23, 2011. 4 See Securities Exchange Act Release No. 59995 (May 28, 2009), 74 FR 26750 (June 3, 2009) (SR– proposed rule change (SR–PHLX– I. Introduction Phlx–2009–32) (order approving Phlx XL II). Phlx 20011–101) is approved. On July 17, 2011, NASDAQ OMX XL II is the Exchange’s electronic order delivery and reporting system, which provides for the 6 Such orders have to be for a minimum of one PHLX LLC (‘‘Phlx’’ or ‘‘Exchange’’) filed automatic entry and routing of Exchange-listed with the Securities and Exchange equity options, index options and U.S. dollar- (1) contract. 7 Commission (‘‘Commission’’), pursuant settled foreign currency options orders to the The Commission has considered the proposed rule change’s impact on efficiency, competition and to Section 19(b)(1) of the Securities Exchange trading floor. Rule 1080(a). 5 capital formation. 15 U.S.C. 78c(f). 1 For example, subsection (b)(i)(B)(1) allows non- Exchange Act of 1934 (‘‘Act’’) and Rule SQTs and specialists to enter certain day limit 8 15 U.S.C. 78f. orders (10 or more contracts) in their proprietary 9 15 U.S.C. 78f(b)(5). 1 15 U.S.C. 78s(b)(1). accounts. 10 15 U.S.C. 78s(b)(2).

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For the Commission, by the Division of II. Self-Regulatory Organization’s where all of the conditions set forth in Trading and Markets, pursuant to delegated Statement of the Purpose of, and the proposed rule are satisfied. authority.11 Statutory Basis for, the Proposed Rule First, trades must be between ATS Elizabeth M. Murphy, Change subscribers that are both FINRA Secretary. In its filing with the Commission, members. For any trades between non- members or a FINRA member and a [FR Doc. 2011–25071 Filed 9–28–11; 8:45 am] FINRA included statements concerning non-member, the exemption will not BILLING CODE 8011–01–P the purpose of and basis for the proposed rule change and discussed any apply, and the ATS will have the trade comments it received on the proposed reporting obligation under FINRA rules. The ATS also must demonstrate that rule change. The text of these statements SECURITIES AND EXCHANGE it meets the following criteria. First, the may be examined at the places specified COMMISSION member subscribers must be fully in Item IV below. FINRA has prepared disclosed to one another at all times on summaries, set forth in sections A, B, [Release No. 34–65388; File No. SR–FINRA– the ATS. Second, although the system and C below, of the most significant 2011–051] brings together the orders of buyers and aspects of such statements. sellers and uses established, non- Self-Regulatory Organizations; A. Self-Regulatory Organization’s discretionary methods under which Financial Industry Regulatory Statement of the Purpose of, and such orders interact with each other, the Authority, Inc.; Notice of Filing of Statutory Basis for, the Proposed Rule system does not permit automatic Proposed Rule Change To Create an Change execution. A member subscriber must Exemption From Certain Reporting take affirmative steps beyond the 1. Purpose Obligations Under the Equity Trade submission of an order to agree to a Reporting Rules for Certain Alternative FINRA trade reporting rules require trade with another member subscriber. Trading Systems that over-the-counter (‘‘OTC’’) Third, the trade does not pass through transactions in equity securities 3 any ATS account, and the ATS does not September 23, 2011. between members be reported to FINRA in any way hold itself out to be a party by the ‘‘executing party.’’ 4 ‘‘Executing Pursuant to Section 19(b)(1) of the to the trade. Fourth, the ATS does not party’’ is defined as the member that Securities Exchange Act of 1934 exchange shares or funds on behalf of 1 2 receives an order for handling or the member subscribers, take either side (‘‘Act’’) and Rule 19b–4 thereunder, execution or is presented an order notice is hereby given that on of the trade for clearing or settlement against its quote, does not subsequently purposes, including, but not limited to, September 16, 2011, the Financial re-route the order, and executes the at DTC or otherwise, or in any other way Industry Regulatory Authority, Inc. transaction. An ATS, which term insert itself into the trade. (‘‘FINRA’’) filed with the Securities and includes electronic communications In addition, the ATS and the member Exchange Commission (‘‘SEC’’ or networks, is the ‘‘executing party’’ and subscribers must acknowledge and agree ‘‘Commission’’) the proposed rule has the trade reporting obligation where in writing that the ATS shall not be change as described in Items I, II, and the transaction is executed on the ATS.5 deemed a party to the trade for purposes III below, which Items have been FINRA is proposing to adopt new of trade reporting and that trades shall prepared by FINRA. The Commission is Rules 6183 and 6625 to provide FINRA be reported by the member subscriber publishing this notice to solicit with authority to exempt, upon that, as between the two member comments on the proposed rule change application and subject to specified subscribers, would satisfy the definition from interested persons. terms and conditions, a member ATS of ‘‘executing party’’ under FINRA trade from the trade reporting obligation reporting rules. An ATS that is granted I. Self-Regulatory Organization’s under certain limited circumstances. an exemption must obtain such written Statement of the Terms of Substance of FINRA will only grant an exemption agreements from all of its member the Proposed Rule Change subscribers prior to relying on the 3 Specifically, these transactions are: (1) 6 FINRA is proposing to adopt new exemption. Transactions in NMS stocks, as defined in SEC Rule Finally, the ATS must agree to Rules 6183 and 6625 to provide FINRA 600(b) of Regulation NMS, effected otherwise than provide to FINRA on a monthly basis, with authority to exempt a member on an exchange, which are reported through the Alternative Display Facility or a Trade Reporting or such other basis as prescribed by alternative trading system (‘‘ATS’’) that Facility; and (2) transactions in OTC Equity FINRA, data relating to the volume of meets the specified criteria from the Securities and Restricted Equity Securities, as those trades by security executed by the ATS’s terms are defined in Rule 6420, which are reported trade reporting obligation under the member subscribers using the ATS’s equity trade reporting rules. In addition, through the OTC Reporting Facility. FINRA notes that the proposed rule change system (e.g., number of trades, number FINRA is proposing a conforming applies to OTC transactions in equity securities of shares traded and total settlement change to Rule 9610 to specify that only. It does not apply to TRACE-eligible securities, value for each security traded). FINRA has exemptive authority under nor does it impact the reporting rules applicable to transactions in TRACE-eligible securities, which are Importantly, although an ATS exempted proposed Rules 6183 and 6625. subject to a separate reporting structure under the under the proposed rule will not have The text of the proposed rule change Rule 6700 Series. trade reporting obligations under FINRA is available on FINRA’s Web site at 4 See Rules 6282(b), 6380A(b), 6380B(b) and rules, the trading occurring through the 6622(b). For transactions between a member and a ATS is still considered volume of the http://www.finra.org, at the principal non-member or customer, the member must report office of FINRA and at the the trade. ATS for purposes of, among other Commission’s Public Reference Room. 5 See Securities Exchange Act Release No. 58903 (November 5, 2008), 73 FR 67905 (November 17, 6 FINRA reminds members of their books and 2008) (Order Approving File No. SR–FINRA–2008– records obligations under FINRA rules, the 011); and Regulatory Notice 09–08 (January 2009). Exchange Act and applicable Exchange Act rules. See also, e.g., Trade Reporting Frequently Asked Thus, any ATS that is granted an exemption under 11 17 CFR 200.30–3(a)(12). Questions, Sections 307 and 308, available at http:// the proposed rule change would be required to 1 15 U.S.C. 78s(b)(1). www.finra.org/Industry/Regulation/Guidance/ retain the written agreements and be able to 2 17 CFR 240.19b–4. P038942. produce them to FINRA upon request.

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things, the recordkeeping requirements will continue to report, as ‘‘executing IV. Solicitation of Comments of Rule 302 of SEC Regulation ATS 7 party,’’ trades that are matched and and determining whether the ATS executed on their systems. Interested persons are invited to triggers the Fair Access requirements FINRA also is proposing a conforming submit written data, views, and under Rule 301(b)(5) of Regulation ATS change to Rule 9610 to add proposed arguments concerning the foregoing, or the Capacity, Integrity and Security of Rules 6183 and 6625 to the list of rules including whether the proposed rule Automated Systems requirements of pursuant to which FINRA has change is consistent with the Act. Rule 301(b)(6) of Regulation ATS. The exemptive authority. Comments may be submitted by any of ATS also must acknowledge that failure FINRA is proposing that the proposed the following methods: to report such data to FINRA, in rule change will be effective on the date addition to constituting a violation of Electronic Comments of Commission approval. FINRA rules, will result in revocation of • Use the Commission’s Internet any exemption granted pursuant to the 2. Statutory Basis comment form (http://www.sec.gov/ proposed rule change. rules/sro.shtml); or Where an exemption is granted, the FINRA believes that the proposed rule ATS will not be deemed a party to the change is consistent with the provisions • Send an e-mail to rule- 9 trade for purposes of FINRA trade of Section 15A(b)(6) of the Act, which [email protected]. Please include File reporting rules and will not be requires, among other things, that Number SR–FINRA–2011–051 on the identified in trade reports submitted to FINRA rules be designed to prevent subject line. FINRA. As expressly stated in the fraudulent and manipulative acts and Paper Comments proposed rule, the trade must be practices, to promote just and equitable principles of trade, and, in general, to reported to FINRA by the member • Send paper comments in triplicate subscriber that, as between the two protect investors and the public interest. FINRA believes that the proposed rule to Elizabeth M. Murphy, Secretary, member subscribers, satisfies the Securities and Exchange Commission, definition of ‘‘executing party’’ under change will reduce potential confusion and possible misreporting and enhance 100 F Street, NE., Washington, DC paragraph (b) of Rules 6282, 6380A, 20549–1090. 6380B or 6622.8 For example, FINRA market transparency by clearly member BD1 displays a quote through identifying the member with the trade All submissions should refer to File ATS X and member BD2 routes an order reporting obligation (i.e., the party to the Number SR–FINRA–2011–051. This file to BD1 for the price and size of BD1’s trade that meets the definition of number should be included on the quote using a messaging system ‘‘executing party’’ for purposes of trade subject line if e-mail is used. To help the provided by ATS X. BD1 does not reporting to FINRA). Commission process and review your subsequently re-route the order and B. Self-Regulatory Organization’s comments more efficiently, please use executes the trade. Assuming that ATS Statement on Burden on Competition only one method. The Commission will X meets all of the criteria set forth in the post all comments on the Commission’s FINRA does not believe that the proposed rule and has been granted an Internet Web site (http://www.sec.gov/ exemption by FINRA, it will not be proposed rule change will result in any burden on competition that is not rules/sro.shtml). Copies of the deemed a party to the trade for trade submission, all subsequent reporting purposes and should not be necessary or appropriate in furtherance of the purposes of the Act. amendments, all written statements identified as such in the trade report with respect to the proposed rule submitted to FINRA. In this example, C. Self-Regulatory Organization’s change that are filed with the BD1 is the ‘‘executing party’’ and has Statement on Comments on the Commission, and all written the obligation to report the trade Proposed Rule Change Received From communications relating to the between BD1 and BD2. Members, Participants, or Others FINRA believes that the proposed rule proposed rule change between the change will reduce potential confusion Written comments were neither Commission and any person, other than and possible misreporting by clearly solicited nor received. those that may be withheld from the identifying the member with the trade public in accordance with the III. Date of Effectiveness of the provisions of 5 U.S.C. 552, will be reporting obligation in this instance. Proposed Rule Change and Timing for available for Web site viewing and FINRA believes that an ATS that Commission Action satisfies all conditions of the proposed printing in the Commission’s Public rule change has a more limited Within 45 days of the date of Reference Room, 100 F Street, NE., involvement in the trade execution than publication of this notice in the Federal Washington, DC 20549, on official the member subscribers and therefore Register or within such longer period (i) business days between the hours of 10 the proposed exemption is appropriate as the Commission may designate up to a.m. and 3 p.m. Copies of such filing in this narrow instance. FINRA expects 90 days of such date if it finds such also will be available for inspection and that a large majority of ATSs will not longer period to be appropriate and copying at the principal office of qualify for the exemption, and the publishes its reasons for so finding or FINRA. All comments received will be proposed rule change will not result in (ii) as to which the self-regulatory posted without change; the Commission a change to their reporting. These ATSs organization consents, the Commission does not edit personal identifying will: information from submissions. You 7 17 CFR 242.300–303. (A) By order approve or disapprove should submit only information that 8 FINRA notes that where an ATS has been such proposed rule change, or granted an exemption under the proposed rule, the you wish to make available publicly. All member subscribers, as the parties identified in the (B) Institute proceedings to determine submissions should refer to File trade report, will be assessed regulatory transaction whether the proposed rule change Number SR–FINRA–2011–051 and fees under Section 3 of Schedule A to the FINRA should be disapproved. By-Laws and the Trading Activity Fee under FINRA should be submitted on or before By-Laws, Schedule A, § 1(b)(2). The ATS will not October 20, 2011. be assessed such fees. 9 15 U.S.C. 78o–3(b)(6).

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For the Commission, by the Division of (the ‘‘Facilitation Price’’), will be sent to the Agency Order. At the end of the one Trading and Markets, pursuant to delegated Options Participants giving them one second period for the entry of 10 authority. second to enter responses Responses, the Agency Order will be Elizabeth M. Murphy, (‘‘Responses’’) 4 with the prices and automatically executed in full or Secretary. sizes at which they would be willing to cancelled. [FR Doc. 2011–25072 Filed 9–28–11; 8:45 am] participate in the facilitation opposite The Agency Order will be executed BILLING CODE 8011–01–P the Agency Order. At the end of the one against the Solicited Order at the second period for the entry of proposed execution price unless (a) Responses, the Agency Order will be There is sufficient size to execute the SECURITIES AND EXCHANGE automatically executed, as follows: entire Agency Order at a better price or COMMISSION Unless there is sufficient size to prices, or (b) there is a Public Customer [Release No. 34–65387; File No. SR–BX– execute the entire Agency Order at a order resting on the BOX Book at a price 2011–034] price better than the Facilitation Price, equal to or better than the proposed Public Customer bids (offers) and Public execution price within the depth of the Self-Regulatory Organizations; Customer Responses on BOX at the time BOX Book that would have traded with NASDAQ OMX BX, Inc.; Order the Agency Order is executed that are the Agency Order if the Agency Order Approving Proposed Rule Change priced higher (lower) than the had been submitted to the BOX Book Amending Chapter V, Section 31 of the Facilitation Price will be executed at the instead of to the mechanism (a ‘‘Book Rules of the Boston Options Exchange facilitation price. Non-Public Customer Priority Public Customer Order’’).7 Group, LLC To Establish Facilitation and Market Maker bids (offers) and Non- If there is sufficient size to execute the and Solicitation Auction Mechanisms Public Customer and Market Maker entire Agency Order at a better price or Responses on BOX at the time the September 23, 2011. prices at the time of execution, the Agency Order is executed that are Agency Order will be executed at the I. Introduction priced higher (lower) than the improved price(s) and the Solicited On June 17, 2011, NASDAQ OMX BX, Facilitation Price will be executed Order will be cancelled. The aggregate Inc. (‘‘BX’’ or ‘‘Exchange’’) filed with the against the Agency Order at their stated size of all bids (offers) and Responses at Securities and Exchange Commission price. each price will be used to determine (‘‘Commission’’), pursuant to Section The facilitating OFP will execute at whether the entire Agency Order can be 19(b)(1) of the Securities Exchange Act least forty percent of the original size of executed at an improved price (or of 1934 (‘‘Act’’) 1 and Rule 19b-4 the Facilitation Order, but only after prices).8 thereunder,2 a proposed rule change to better-priced bids (offers) and Responses If there is not sufficient size to amend Chapter V (Doing Business on on BOX, as well as Public Customer execute the entire Agency Order at a BOX), Section 31 (Block Trading) of the bids (offers) and Responses at the better price or prices, whether the Rules of the Boston Options Exchange facilitation price, are executed in full. Agency Order will be executed against Group, LLC (‘‘BOX’’), to establish After the facilitating OFP has executed the Solicited Order at the proposed facilitation and solicitation auction its forty percent, Non-Public Customer execution price depends on whether mechanisms. The proposed rule change and Market Maker bids (offers) and there is one or more Book Priority was published for comment in the Responses on BOX at the Facilitation Public Customer Order(s) on the BOX Federal Register on June 29, 2011.3 The Price will participate in the execution of Book at the time of execution. If no such Commission received no comments on the Agency Order based upon price and Book Priority Public Customer Orders the proposal. This order approves the time priority.5 are on the BOX Book at the time of proposed rule change. Solicitation Auction—The Solicitation execution, the Agency Order will be Auction will allow OFPs to attempt to executed against the Solicited Order at II. Description of the Proposal execute Agency Orders of 500 or more the proposed execution price.9 Facilitation Auction—The Facilitation contracts against contra orders that the However, if there is one or more Book Auction will allow Order Flow OFP has solicited (‘‘Solicited Orders’’).6 Priority Public Customer Orders on the Providers (‘‘OFPs’’) on BOX to enter Executions will occur only if the price Book, then BOX will calculate whether crossing transactions in which an OFP is at or between the national best bid or sufficient size exists to execute the represents, as agent, an order (‘‘Agency offer (‘‘NBBO’’). Each Agency Order Agency Order at its proposed price. In Order’’) of 50 contracts or more and (a) entered into the Solicitation Auction making this calculation, the Exchange is trading against the Agency Order as must be an all-or-none order. will include the aggregate size of all principal, and/or (b) has solicited an When a proposed solicited cross is bids (offers) on the BOX Book at or order to take the opposite side of the entered into the Solicitation Auction, better than the proposed execution price Agency Order. To utilize the Facilitation BOX will broadcast a message, which but exclude Responses.10 Auction, an OFP must be willing to will include the proposed execution execute the entire size of the Agency price of the cross, to Options 7 See chapter V, Section 31(b)(ii)(1) of the BOX Order through the submission of a Participants, and they will have one Rules. contra ‘‘Facilitation Order.’’ second to enter Responses with the 8 See chapter V, section 31(b)(ii)(3) of the BOX Upon the entry of an Agency Order prices and sizes at which they would be Rules. willing to participate in the execution of 9 See chapter V, section 31(b)(ii)(1) of the BOX and Facilitation Order into the Rules. In addition, the Agency Order will not be Facilitation Auction, a broadcast executed against the Solicited Order unless the message, which will include the 4 Responses are permitted to be entered on behalf execution price is equal to or better than the NBBO proposed execution price of the cross of any customer. at the time of execution. If an execution would take 5 The Exchange provided a more detailed place at a price that is inferior to the best bid or explanation regarding the Facilitation Auction in offer on BOX or the NBBO, both the Solicited Order 10 17 CFR 200.30–3(a)(12). the Notice. See Notice, supra note 3. and Agency Order will be cancelled. Id. Thus, a 1 15 U.S.C. 78s(b)(1). 6 The Exchange provided a more detailed Solicited Order cannot trade through a better price 2 17 CFR 240.19b–4. explanation of how the Solicitation Auction will on an away market or on the BOX Book. 3 See Securities Exchange Act Release No. 64734 work, with examples, in the Notice. See Notice, 10 See chapter V, section 31(b)(ii)(2) of the BOX (June 23, 2011), 76 FR 38226 (‘‘Notice’’). supra note 3. Rules.

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After this calculation, if there is Surrender Quantity—i.e., such interest cancel a Facilitation Order to avoid sufficient size available on the BOX represents no more than the maximum execution of the order at a better price. Book, including non-public customer quantity that the OFP is willing to Also, Options Participants will be interest, to execute the entire Agency surrender—the Agency Order will first prohibited from using the Solicitation Order at the proposed price, the Agency execute against all such Book Priority Auction to circumvent chapter V, Order will be executed against the BOX Public Customer Orders and all other section 17, which limits principal Book.11 If there is not sufficient size interest on the BOX Book at a better transactions.18 Such prohibited actions available on the BOX Book, including price,15 and then against the Solicited may include, but are not limited to, non-public customer interest, to execute Order. Options Participants entering the entire Agency Order at the proposed • When a Book Priority Public Solicitation Orders that are solicited price, the Agency Order and the Customer Order(s) is resting on the BOX from (i) Affiliated broker-dealers, or (ii) Solicited Order will be cancelled and no Book at a price equal to or better than broker-dealers with which the Options executions will occur.12 the proposed execution price but there Participant has an arrangement that BOX’s Solicitation Auction proposal is otherwise insufficient quantity on the allows the Options Participant to realize includes a ‘‘Surrender Quantity’’ BOX Book to execute the entire Agency similar economic benefits from the function for Solicitation Auctions. An Order the Solicited Order is not solicited transaction as it would achieve OFP may use this function when permitted to bypass the Book Priority by executing the customer order in starting a Solicitation Auction by Public Customer(s) on the BOX Book, whole or in part as principal. Any designating, for the Solicited Order, the and both the Solicited Order and the Solicited Orders entered by Options quantity of contracts of the Agency Agency Order are cancelled.16 With the Participants to trade against Agency Order for which the OFP is willing to Surrender Quantity, however, the Book Orders may not be for the account of a ‘‘surrender’’ to the BOX Book Priority Public Customer Order(s) will BOX market maker that is assigned to (‘‘Surrender Quantity’’). In effect, the be executed first (assuming that it is not the options class. Surrender Quantity reduces the size of larger than the Surrender Quantity) and In addition, the Supplementary the Solicited Order in order to permit (a) the remainder of the Agency Order will Material provides that the proposed rule Book Priority Public Customer Orders be executed against the Solicited Order. change will allow orders and Responses on the BOX Book at the proposed price • When the proposed execution price to be entered into the BOX Facilitation or better, and/or (b) any bids (offers) on is inferior to the best bid or offer on the and Solicitation Auctions and receive the BOX Book at any price better than BOX Book, the Solicited Order is not executions at penny increments. the proposed execution price, to execute permitted to trade through the better- Finally, the proposed rule change adds against the Agency Order.13 The priced order(s) on the BOX Book, and references to the Facilitation and surrender of contracts to the interest both the Solicited Order and the Agency Solicitation Auction mechanisms to described in (a) and (b) of the prior Order are cancelled.17 With the Chapter V, Section 17 (Customer Orders sentence permits the Solicited Order to Surrender Quantity, however, the better and Order Flow Providers), and to execute against the balance of contracts priced order(s) on the BOX Book will be Chapter III, Section 4(f) (Prevention of remaining in the Agency Order when executed first (assuming that the size of the Misuse of Material Nonpublic otherwise the Solicited Order would not such order(s) is not larger than the Information). participate in the transaction at all or Surrender Quantity) and the remainder III. Discussion and Commission the Agency Order and Solicited Order of the Agency Order will be executed Findings both would be cancelled. against the Solicited Order. The following examples describe how The proposed rule change also will After careful review, the Commission a Solicitation Auction could be require OFPs to deliver to customers a finds that the proposed rule change is impacted by the presence of a Surrender written notification (in a form approved consistent with the Act and the rules Quantity: by the Exchange) describing the terms and regulations thereunder applicable to • When a Book Priority Public and conditions of the Solicitation Customer Order(s) is resting on the BOX Auction before executing Agency Orders 18 As amended by the proposed rule change, using the Solicitation Auction. Chapter V, Section 17, among other things, contains Book at a price equal to or better than provisions that (a) Prohibit an Options Participant the proposed price, and, when Proposed Supplementary Material to from executing agency orders to increase its aggregating all other interest on the BOX Section 31 states that it will be a economic gain from trading against the order Book (i.e. including non-public violation of an Options Participant‘s without first giving other trading interest; (b) duty of best execution if it were to provide that it will be a violation of the BOX Rules customer interest but not including for an Options Participant to cause the execution of Responses), there is sufficient size to an order it represents as agent on BOX through the execute against the Agency Order at 15 Public Customer bids (offers) on the BOX Book use of orders it solicited from Options Participants least at the proposed price, the Agency at the time of Surrender Quantity execution that are and/or non-Participant broker-dealers to transact priced higher (lower) than the proposed execution with such orders, whether such solicited orders are Order is executed against the BOX Book price will be executed at the proposed execution entered into the BOX market directly by the 14 and the Solicited Order is cancelled. price. Non-Public Customer and Market Maker bids Options Participant or by the solicited party (either However, if the OFP has designated a (offers) on the BOX Book at the time of Surrender directly or through another Participant), unless (i) Surrender Quantity, and the aggregate Quantity execution that are priced higher (lower) The agency order is first exposed to the BOX Book than the proposed execution price will be executed for at least one (1) Second, (ii) the Options size of Book Priority Public Customer at their stated price, See Chapter V, Section Participant utilizes the Solicitation Auction, or (iii) Orders, and other interest on the BOX 31(b)(ii)(4)(b) of the BOX Rules. The Surrender the Options Participant utilizes the Price Book at prices better than the proposed Quantity does not need to accommodate non-Public Improvement Period; and (c) provides that the price, is equal to or less than the Customer interest at the proposed price, which agency order be first exposed to the BOX Book for would not, in itself, block a transaction with the at least one (1) second, (ii) the OFP has been Solicited Order. The Surrender Quantity also does bidding or offering on BOX for a least one (1) 11 Id. not need to accommodate Responses even at a Second prior to receiving an agency order that is 12 See chapter V, section 31(b)(ii)(1) of the BOX better price. (Responses at a better price are executable against such bid or offer, (iii) the OFP Rules. aggregated only to determine if the entire Agency sends the agency order to the Price Improvement 13 See chapter V, section 31(b)(ii)(4) of the BOX Order can be executed at a better price.) Period or Universal Price Improvement Period, or Rules. 16 See supra note 12. (iv) the Options Participant utilizes the Solicitation 14 See supra notes 10–11 and accompanying text. 17 See supra note 9. Auction.

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a national securities exchange.19 In auction, in part to reflect its price-time Responses with orders only if such particular, the Commission finds that priority system, and the Commission Responses are at an improved price over the proposed rule change is consistent believes that these changes are also the price proposed for the transaction. with Section 6(b) of the Act,20 in consistent with the Act. Responses are not aggregated with general, and Section 6(b)(5) of the Act,21 The first modification relates to the orders on the BOX Book when in particular, which requires that the interaction between Public Customer determining whether sufficient size rules of an exchange be designed, Orders and the Solicitation Auction. exists to execute the entire Agency among other things, to prevent Specifically, in BOX’s proposed Order at the proposed solicitation fraudulent and manipulative acts and Solicitation Auction, a Public Customer price.27 practices, to promote just and equitable Order resting on the BOX Book within Regarding the differential treatment of principles of trade, to remove the depth that would have traded with Responses in these two scenarios, the impediments to, and perfect the the Agency Order had the Solicitation Commission notes that the solicitation mechanism of, a free and open market Auction not been in place (i.e., a Book mechanisms on other exchanges, on and a national market system, and, in Priority Public Customer Order) would which BOX’s proposed Solicitation general, to protect investors and the prevent the Solicited Order from Auction generally is modeled, assure public interest. executing against the Agency Order, that when sufficient interest can be The Exchange’s proposed Facilitation while a Public Customer Order resting attracted through the exposure of an Auction is substantially similar to the on the BOX Book below a depth that agency order to obtain a price better facilitation mechanism currently would be traded with the Agency Order than the proposed execution price for operative at the International Securities had the Solicitation Auction not been in the entire agency order, the agency Exchange, Inc. (‘‘ISE’’), which the place (i.e., a public customer order that order should receive that price Commission has found consistent with is not a Book Priority Public Customer improvement.28 On the other hand, in the Act.22 The Commission notes, Order) would not prevent such the case where price improvement is not however, that, on BOX, should any execution. Similar to ISE’s solicitation elicited for the entire agency order, such portion of Agency Order remain mechanism, BOX’s Solicitation Auction solicitation mechanisms provide for the available for execution against Non- will not permit Public Customer orders execution to the solicited order against Public Customer and Market Maker bids to be bypassed, but, unlike ISE’s the agency order, even when non-public (offers), such Non-Public Customer and mechanism, BOX’s Solicitation Auction customer interest (including responses) Market Maker bids (offers) will be will only preclude the bypassing of in the aggregate would provide enough executed against the Agency Order on a Public Customers orders to the extent size to fill the entire agency order.29 It price-time priority basis, instead of on a that such orders would have been is only the presence of a public pro-rata priority basis, as is done on ISE. entitled to participate in the execution customer order at the proposed price The use of price-time priority on BOX of the Agency Order had the Agency that prevents the execution of the is consistent with the priority rules of Order been sent to the BOX Book.25 solicited order against the agency order, BOX’s trading system, whereas the use The differential treatment of Public so as not to bypass that public customer. of pro-rata priority on ISE is consistent Customers orders that are not Book Responses exist only as a result of a with the principles generally of that Priority Public Customer Orders and solicitation auction and only for the exchange. The Commission believes that Book Priority Public Customer Orders is possibility of eliciting a better price for this functionality is consistent with the consistent with the price-time priority an agency order in its entirety. Act. structure of the BOX market.26 In Responses were not designed to elicit The proposed Solicitation Auction on particular, Public Customer orders that interest to fill the agency order at the BOX also is modeled on similar are not Book Priority Public Customer same price as that proposed by the mechanisms on other exchanges. The Orders would not have been executed solicited order. In particular, a Commission previously has found such against the Agency Order had it been distinctive feature of solicitation mechanisms consistent with the Act,23 sent to the BOX Book. Thus, the mechanisms is that the solicited order is stating that they should allow for greater Commission believes that it is executed against the agency order even flexibility in pricing large-sized orders reasonable for BOX and consistent with when non-public customer orders could and may provide a greater opportunity the Act not to provide for the execution fill the agency order at the proposed for price improvement.24 BOX has made of such orders against the Agency Order price, so long as those orders do not certain modifications to its solicitation and not to allow such orders to prevent improve the price for the entire size of the execution of a Solicited Order with the agency order. On BOX, Public 19 In approving this proposed rule change, the an Agency Order. Customer orders generally are not Commission has considered the proposed rule’s The second modification relates to granted any more deference than other impact on efficiency, competition, and capital orders on the BOX Book. Nonetheless, formation. See 15 U.S.C. 78c(f). how Responses are aggregated with 20 15 U.S.C. 78f(b). orders on the BOX Book. Specifically, in its Solicitation Auction, consistent 21 15 U.S.C. 78f(b)(5). the ISE’s solicitation mechanism always with the operation of solicitation 22 See Securities Exchange Act Release No. 42455 aggregates Responses with orders when mechanisms at other exchanges, BOX (February 24, 2000), 65 FR 11388 (March 2, 2000) determining whether sufficient size will not permit a Solicited Order to (concerning registration of the ISE, and, among exists to execute the entire Agency trade against the Agency Order when it other features of the exchange, the ISE’s facilitation mechanism). Order. BOX, however, aggregates would bypass a Public Customer Order 23 See id., and see Securities Exchange Act Release Nos. 49141 (January 28, 2004), 69 FR 5625 25 See Notice, supra note 3, at note 8. 27 See supra note 10. (February 5, 2004) (SR–ISE–2001–22) (approval of 26 The consistency with the Act of a price-time 28 See supra note 23. ISE Solicited Order Mechanism) and 57610 (April priority system that gives Public Customers no 29 For a more complete discussion of the rationale 3, 2008), 73 FR 19535 (April 10, 2008) (SR–CBOE– priority in trading rights is discussed, in the context for these aspects of the Solicited Order Mechanism, 2008–14) (approval of CBOE Solicitation Auction of BOX, in Securities Exchange Act Release No. see generally Securities Exchange Act Release Nos. Mechanism). 49068 (January 13, 2004), 69 FR 2775 (January 20, 49141 (January 28, 2004), 69 FR 5625 (February 5, 24 See Securities Exchange Act Release No. 57610 2004) (SR–BSE–2002–15) (Order Establishing 2004) (SR–ISE–2001–22) (Notice); and 49943 (June (April 3, 2008), 73 FR 19535 (April 10, 2008) (File Trading Rules for the Boston Options Exchange 30, 2004), 69 FR 41317 (July 8, 2004) (SR–ISE– No. SR–CBOE–2008–14). facility). 2001–22) (Approval Order).

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at the same price, so long as that order the Exchange to establish procedures to For the Commission, by the Division of was on the Book within the depth of surveil for violations of this best Trading and Markets, pursuant to delegated 34 interest that would have traded with the execution obligation.31 authority. Elizabeth M. Murphy, Agency Order had the Agency Order Finally, the Commission believes that been submitted unmatched. If other Secretary. it is reasonable and consistent with the interest on the Book can fill the balance [FR Doc. 2011–25073 Filed 9–28–11; 8:45 am] Act for orders and Responses to be of the Agency Order, BOX further will BILLING CODE 8011–01–P permit the Public Customer Order, entered into the Exchange’s Facilitation together with such other interest, to fill and Solicitation Auctions and receive the Agency Order. The Commission executions at penny increments (the SECURITIES AND EXCHANGE believes that it is reasonable and ‘‘Penny Increment functionality’’). The COMMISSION Commission notes that the Exchange is consistent with the Act for BOX to not [Release No. 34–65386; File No. SR–OCC– aggregate Responses in this case because not restricting the ability of any Options 2011–10] the sole purpose in eliciting Responses Participant to enter orders and Reponses in the Solicitation Auction is to explore in penny increments into the Self-Regulatory Organizations; The whether any possibility exists to obtain Exchange’s Facilitation and Solicitation Options Clearing Corporation; Order price improvement for the entire Auctions on its own behalf or on behalf Approving Proposed Rule Change To Agency Order. of any other person, including Revise Its By-Laws and Rules To Regarding BOX’s introduction of the customers. The Commission believes Establish a Clearing Fund Amount Surrender Quantity, the Commission that the Penny Increment functionality Intended To Support Losses Under a believes that this function could help could provide greater flexibility in Defined Set of Default Scenarios facilitate the execution of block-sized pricing for block-size orders and could September 23, 2011. orders, while avoiding trade-throughs of provide enhanced opportunities for better priced bids (offers) on the BOX block-sized orders to benefit from price I. Introduction Book and not bypassing Public improvement, while ensuring broad On August 3, 2011, The Options Customer orders that would have traded access to persons that would like to Clearing Corporation (‘‘OCC’’) filed with with the Agency Order if the Agency participate in a one-cent increment. In the Securities and Exchange Order had been submitted to the BOX addition, the Commission notes that it Commission (‘‘Commission’’) proposed Book. rule change SR–OCC–2011–10 pursuant The Exchange has adopted an has previously approved rules relating to Section 19(b)(1) of the Securities interpretive provision to make clear that to exchange crossing mechanisms that Exchange Act of 1934 (‘‘Act’’) 1 and Rule it would be a violation of an Options allow orders and executions in penny 32 19b–4 thereunder.2 The proposed rule Participant’s duty of best execution to increments. change was published for comment in its customer if it were to cancel a IV. Conclusion the Federal Register on August 17, facilitation order to avoid execution of 2011.3 The Commission received no the order at the better price. Use of the It Is Therefore Ordered, pursuant to comment letters. This order approves Facilitation Auction does not modify an 33 Section 19(b)(2) of the Act, that the the proposed rule change.4 Options Participant’s best execution proposed rule change (SR–BX–2011– duty to obtain the best price for its 034) be, and it hereby is, approved. II. Description of the Proposal customer. Accordingly, while This proposed rule change would Facilitation Orders may be canceled revise OCC’s By-Laws and Rules to during the facilitation timeframe, if an establish the size of OCC’s clearing fund Options Participant was to cancel a ‘‘Competitive Developments in the Options as the amount that is required within a facilitation order when there was a Markets’’), citing In the Matter of the Application confidence level selected by OCC to superior price available on the Exchange of the International Securities Exchange, LLC For sustain the possible loss under a defined and subsequently re-enter the Registration as a National Securities Exchange, facilitation order at the same facilitation Release No. 42455 (Feb. 24, 2000). 34 17 CFR 200.30–3(a)(12). price after the better price was no longer 31 The Commission realizes that ensuring that 1 15 U.S.C. 78s(b)(1). available without attempting to obtain Options Participations do not re-enter facilitated 2 17 CFR 240.19b–4. that better price for its customer, there orders on markets other than the Exchange may be 3 Securities Exchange Act Release No. 34–65119 would be a presumption that the difficult. Nevertheless, the Commission expects the (August 12, 2011), 76 FR 51087 (August 17, 2011). Exchange to work with the other options markets 4 member did so to avoid execution of its This proposed rule change replaced a previously through the Intermarket Surveillance Group to filed and later withdrawn proposed rule change by customer order by other market develop methods and procedures to monitor their OCC regarding clearing fund sizing. File No. SR– participants. Options Participants trading on other markets for OCC–2010–04, Securities Exchange Act Release 34– The Commission believes that this possible best execution violations in this context. 62371 (June 24, 2010), 75 FR 37864 (June 30, 2010) (Notice of Filing of Proposed Rule Change To interpretation is important to ensure 32 See Securities Exchange Act Release Nos. Revise its By-Laws and Rules To Establish a that brokers proposing to facilitate 49068 (January 14, 2003), 68 FR 3062 (January 22, Clearing Fund Amount Intended to Support Losses orders as principal fulfill their best 2003) (Commission approval establishing trading Under a Defined Set of Default Scenarios). OCC execution duties to their customers. In rules for BOX, including rules for the Price withdrew its earlier proposed rule change in order the Commission’s view, withdrawing a Improvement Period); 49323 (February 26, 2004), 69 that it could: incorporate amendments that had FR 10087 (March 3, 2004) (Commission approval been proposed for the previous proposed rule facilitated order that may be price establishing rules for ISE’s Price Improvement change; discuss the adaptation of the methodology improved simply to avoid execution of Mechanism); and 53222 (February 3, 2006), 71 FR underlying the formula to take into account the the order at the superior price is a 7089 (February 10, 2006) (Commission approval effects of implementing its ‘‘Collateral in Margins’’ violation of a broker’s duty of best establishing rules for CBOE’s Automated rule change (Securities Exchange Act Release No. 34–58158 (July 15, 2008), 73 FR 42646 (July 22, 30 Improvement Mechanism). These mechanisms execution. The Commission expects 2008) (SR–OCC–2007–20)); give itself time to allow for the execution of orders at penny prepare updated comparative data about the impact 30 See, e.g., Securities Exchange Act Release No. increments even when the standard minimum of the proposed clearing fund sizing formula; and 49175 (February 3, 2004), 69 FR 6124 (February 9, trading increment is greater than one penny. make additional changes to improve the overall 2004) (Commission concept release on 33 15 U.S.C. 78s(b)(2). readability of the proposed rule text.

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set of scenarios as determined by OCC. Commissioners. Among the methodology underlying the revised Currently the size of the clearing fund recommendations in the publication are formula was adapted to incorporate the is calculated each month and is equal to that a clearing organization ‘‘maintain effects of the implementation of the a fixed percentage of the average total sufficient financial resources to changes described in its Collateral in daily margin requirement for the withstand, at a minimum, a default by Margins rule change.11 Under those preceding month provided that this the clearing member to which it has the changes, certain types of securities calculation results in a clearing fund of largest exposure in extreme but accepted as collateral are analyzed for $1 billion or more.5 plausible market conditions.’’ The margin purposes together with positions Under the revised formula for publication further advises clearing in cleared products as a single portfolio determining the size of the clearing organizations to plan for the possibility to afford a more accurate measurement fund, the amount of the fund will be of a default by two or more clearing of risk. During the period February 2008 equal to the larger of the amount of the members in a short time frame.9 through January 2010 (i.e., prior to the charge to the fund that would result In considering whether to revise the implementation of the Collateral in from (i) a default by the single ‘‘clearing current formula for determining the size Margins Filing) for which comparative member group’’ 6 whose default would of the clearing fund, OCC compared the data is available, the size of the clearing be likely to result in the largest draw size of the clearing fund that would fund under the revised formula would against the clearing fund or (ii) an event have resulted from application of the have been on average 3% larger than involving the near-simultaneous default revised formula to the actual size of the under the current formula. Including of two randomly selected ‘‘clearing clearing fund for each month from also the months of July 2010 through member groups’’ in each case as February 2008 through September 2009. June 2011 (i.e., since the calculated by OCC with a confidence This analysis revealed that for this time implementation of the Collateral in level selected by OCC. Initially, the period the size of the clearing fund Margins rule change) for which confidence levels employed by OCC in under the revised formula would have comparative data is available, the calculating the charge likely to result been on average 10% larger than under corresponding percentage increase is from a default by OCC’s largest the current formula. In September and 2%. ‘‘clearing member group’’ and the October 2008, which were two months The existing formula for determining default of two randomly-selected of extreme volatility in the U.S. the size of the clearing fund was ‘‘clearing member groups’’ will be 99% securities markets, the revised formula intended to establish the fund at a level and 99.9%, respectively. However, OCC would have resulted in a clearing fund reasonably designed to cover losses will have the discretion to employ size of approximately 31% and 27% resulting from one or more clearing different confidence levels in these greater than under the current formula. member defaults, and OCC believes that calculations in the future provided that The average monthly change in the size it has served that purpose adequately. OCC will not employ confidence levels of the clearing fund and the standard Nevertheless, OCC believes that the of less than 99% without filing a rule deviation of clearing fund size from revised formula presents a more 7 change with the Commission. The size month-to-month for this time period accurate prediction of the actual losses of the clearing fund will continue to be under the two formulas were broadly that would be likely to result from such recalculated monthly based on a similar.10 defaults. The existing formula takes monthly averaging of daily calculations Since deciding in September 2009 potential losses into account only for the previous month and subject to a that it wished to adopt the revised indirectly by setting the size of the requirement that the total clearing fund formula, OCC has continued to compare clearing fund as a percentage of average 8 be not less than $1 billion. the size of the clearing fund under the margin requirements. The revised The new formula is designed to more revised formula with the size under the formula will directly take into account directly take into account anticipated current formula. During 2010 the various types of default scenarios and losses resulting from the clearing therefore in OCC’s view will be more member default scenarios described 9 Bank for International Settlements and likely to result in a level for the clearing above and thereby establish the clearing International Organization of Securities fund that is adequate in the event such fund at a size that is sufficient to cover Commissions, Recommendations for Central scenarios occur. The new formula is such losses without relying on any Counterparties (November 2004), available at designed to more closely align the size http://www.iosco.org/library/pubdocs/pdf/ rights of OCC to require clearing IOSCOPD176.pdf (‘‘2004 Recommendations’’). OCC of the clearing fund with its intended members to replenish the clearing fund. notes that in December 2009 the Committee on purpose of protecting OCC from any OCC believes the formula is generally Payment and Settlement Systems of the Bank for losses that could result from clearing consistent with the current International Settlements (‘‘CPSS’’) and the member defaults and should thereby Technical Committee of the International ‘‘Recommendations for Central Organization of Securities Commissions (‘‘IOSCO’’) better help avoid a disruption of the Counterparties’’ published by the Bank began a comprehensive review of the 2004 clearance process even during extreme for International Settlements and the Recommendations in order to strengthen and clarify market conditions. International Organization of Securities such recommendations based on experience and Article VIII, Section 6 of OCC’s By- lessons learned from the recent financial crisis. In March 2011, CPSS and IOSCO published for Laws, which obligates clearing members 5 If the calculation does not result in a clearing comment the results of its review with comments to make good deficiencies in their fund of $1 billion or more, the percentage of the requested by July 29, 2011. Bank for International clearing fund deposits resulting from average total daily margin requirement for the Settlements and International Organization of preceding month that results in a fund level of at pro rata charges or otherwise will Securities Commissions, Principles for financial 12 least $1 billion is applied provided that in no event market infrastructures (March 2011), available at remain unchanged. will the percentage exceed 7%. http://www.iosco.org/library/pubdocs/pdf/ 6 ‘‘Clearing member group’’ will be defined in IOSCOPD350.pdf 11 Securities Exchange Act Release No. 34–58158 Article I (‘‘Definitions’’) of OCC’s By-Laws to mean 10 Note the comparative data described in this (July 15, 2008), 73 FR 42646 (July 22, 2008) (SR– ‘‘a Clearing Member and any Member Affiliates of paragraph was obtained using confidence levels set OCC–2007–20). Supra note 4. such Clearing Member.’’ at 99% and higher. OCC estimates that using only 12 OCC’s members’ obligation to make good 7 Proposed Interpretation and Policy .02 to OCC a 99% confidence level for the months referenced deficiencies in their clearing fund deposits will Rule 1001. would have lowered by an average of approximately continue to be subject to a cap equal to 100% of 8 Proposed Interpretation and Policy .01 to OCC c% the total size of the clearing fund as determined a clearing member’s then required deposit if it Rule 1001. by the proposed methodology. Continued

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III. Discussion Securities and Exchange Commission the previous trading day. Series in $1 Section 17A(b)(3)(F) of the Act 13 (‘‘Commission’’) the proposed rule strike price intervals were not permitted requires, among other things, that the change as described in Items I and II within $0.50 an existing strike. In rules of a clearing agency be designed to below, which items have been prepared addition, the Exchange was limited to assure the safeguarding of securities and by the Exchange. The Commission is selecting five (5) classes and reciprocal funds which are in the custody or publishing this notice to solicit listing was permitted. Furthermore, control of the clearing agency or for comments on the proposed rule change LEAPS in $1 strike price intervals were which it is responsible. The from interested persons. not permitted for classes selected to participate in the Program. Commission believes that because the I. Self-Regulatory Organization’s The Exchange renewed the pilot proposed rule change creates a more Statement of the Terms of Substance of program on a yearly basis and in 2008, direct correlation between OCC’s the Proposed Rule Change clearing fund size and potential losses the Commission granted permanent from a defined set of default scenarios, The Exchange proposes to amend its approval of the Program.5 At that time, it should better enable OCC to fulfill rules in order to simplify the $1 Strike the Program was expanded to increase this statutory obligation. Price Interval Program. The text of the the upper limit of the permissible strike proposed rule change is available on the price range from $20 to $50. In addition, IV. Conclusion Exchange’s Web site http:// the number of class selections per On the basis of the foregoing, the www.ise.com, at the principal office of exchange was increased from five (5) to Commission finds that the proposal is the Exchange, and at the Commission’s ten (10). Since the Program was made consistent with the requirements of the Public Reference Room. permanent, the number of class Act and in particular with the II. Self-Regulatory Organization’s selections per exchange has been requirements of Section 17A of the Statement of the Purpose of, and increased from ten (10) classes to 55 Act 14 and the rules and regulations 6 Statutory Basis for, the Proposed Rule classes and subsequently increased thereunder. 7 Change from 55 classes to 150 classes. It is therefore ordered, pursuant to Section 19(b)(2) of the Act,15 that the In its filing with the Commission, the Amendments To Simplify Non-LEAPS proposed rule change (File No. SR– self-regulatory organization included Rule Text OCC–2011–10) be, and hereby is, statements concerning the purpose of The most recent expansion of the approved.16 and basis for the proposed rule change Program was approved by the For the Commission by the Division of and discussed any comments it received Commission in early 2011 and increased Trading and Markets, pursuant to delegated on the proposed rule change. The text the number of $1 strike price intervals authority.17 of those statements may be examined at permitted within the $1 to $50 range.8 Elizabeth M. Murphy, the places specified in Item IV below. This expansion was a proposal of Secretary. The Exchange has prepared summaries, another exchange and ISE submitted its [FR Doc. 2011–25074 Filed 9–28–11; 8:45 am] set forth in sections A, B, and C below, filing for competitive reasons. This of the most significant parts of such BILLING CODE 8011–01–P expansion, however, has resulted in statements. very lengthy rule text that is A. Self-Regulatory Organization’s complicated and difficult to understand. SECURITIES AND EXCHANGE Statement of the Purpose of, and ISE believes that the proposed changes COMMISSION Statutory Basis for, the Proposed Rule to simplify the rule text of the Program will benefit market participants since [Release No. 34–65384; File No. SR–ISE– Change 2011–59] the Program will be easier to understand 1. Purpose and will maintain the expansions made Self-Regulatory Organizations; The Exchange proposes to amend to the Program in early 2011. Through International Securities Exchange, Supplementary Material .01 to ISE Rule the current proposal, the Exchange also Incorporated; Notice of Proposed Rule 504 in order to simplify the $1 Strike hopes to make administration of the To Simplify the $1 Strike Price Interval Price Interval Program (‘‘Program’’). Program easier, e.g., system Program This filing is based on a filing programming efforts. To simply the previously submitted by the Chicago rules of the Program and, as a proactive September 22, 2011. Board Options Exchange, Inc. attempt to mitigate any unintentional Pursuant to Section 19(b)(1) of the (‘‘CBOE’’).3 listing of improper strikes, ISE is Securities Exchange Act of 1934 proposing the following streamlining 1 2 In 2003, the Commission issued an (‘‘Act’’) and Rule 19b–4 thereunder, order permitting the Exchange to amendments: notice is hereby given that on establish the Program on a pilot basis.4 • When the price of the underlying September 21, 2011, the International At that time, the underlying stock had stock is equal to or less than $20, permit Securities Exchange, LLC (the to close at $20 on the previous trading $1 strike price intervals with an exercise ‘‘Exchange’’ or the ‘‘ISE’’) filed with the day in order to qualify for the Program. price up to 100% above and 100% The range of available $1 strike price promptly withdraws from membership and closes 5 See Securities Exchange Act Release No. 57169 out or transfers its open positions. intervals was limited to a range between (January 18, 2008) 73 FR 4654 (January 25, 2008) 13 $3 and $20 and no strike price was 15 U.S.C. 78q–1(b)(3)(F). (SR–ISE–2007–110). 14 15 U.S.C. 78q–1. permitted that was greater than $5 from 6 See Securities Exchange Act Release No. 59587 15 15 U.S.C. 78s(b)(2). the underlying stock’s closing price on (March 17, 2009), 74 FR 12414 (March 24, 2009) 16 In approving the proposed rule change, the (SR–ISE–2009–04). Commission considered the proposal’s impact on 3 See Securities Exchange Act Release No. 65031 7 See Securities Exchange Act Release No. 62442 efficiency, competition and capital formation. 15 (August 4, 2011) 76 FR 48935 (August 9, 2011) (SR– (July 2, 2010), 75 FR 39597 (July 9, 2010) (SR–ISE– U.S.C. 78c(f). CBOE–2011–040). 2010–64). 17 17 CFR 200.30–3(a)(12). 4 See Securities Exchange Act Release No. 48033 8 See Securities Exchange Act Release No. 63771 1 15 U.S.C. 78s(b)(1). (June 16, 2003) 68 FR 37036 (June 20, 2003) (SR– (January 25, 2011), 76 FR 5642 (February 1, 2011) 2 17 CFR 240.19b–4. ISE–2003–17). (SR–ISE–2011–06).

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below the price of the underlying the Program. The Exchange is proposing to Supplementary Material .01, e.g., stock.9 to maintain the expansion as to LEAPS, replacing the word ‘‘security’’ with the Æ However, the above restriction but simplify the language and provide word ‘‘stock.’’ would not prohibit the listing of at least examples of the simplified rule text. The Exchange represents that it has five (5) strike prices above and below These changes are set forth the necessary systems capacity to the price of the underlying stock per subparagraph (v) to Supplementary support the increase in new options expiration month in an option class.10 Material .01(b). Æ series that will result from the proposed For example, if the price of the For stocks in the Program, the streamlining changes to the Program. underlying stock is $2, the Exchange Exchange may list one $1 strike price would be permitted to list the following interval between each standard $5 strike 2. Statutory Basis 11 series: $1, $2, $3, $4, $5, $6 and $7. interval, with the $1 strike price interval The Exchange believes the proposed • When the price of the underlying being $2 above the standard strike for rule change is consistent with the stock is greater than $20, permit $1 each interval above the price of the Securities Exchange Act of 1934 (the strike price intervals with an exercise underlying stock, and $2 below the ‘‘Act’’) 16 and the rules and regulations price up to 50% above and 50% below standard strike for each interval below thereunder and, in particular, the the price of the underlying security up the price of the underlying stock (‘‘$2 requirements of Section 6(b) of the to $50.12 wings’’). For example, if the price of the Act.17 Specifically, the Exchange • For the purpose of adding strikes underlying stock is $24.50, the under the Program, the ‘‘price of the believes the proposed rule change is Exchange may list the following consistent with the Section 6(b)(5) 18 underlying stock’’ shall be measured in standard strikes in $5 intervals: $15, the same way as ‘‘the price of the requirements that the rules of an $20, $25, $30 and $35. Between these exchange be designed to promote just underlying security’’ is as set forth in standard $5 strikes, the Exchange may and equitable principles of trade, to Rule 504(A)(b)(i).13 list the following $2 wings: $18, $27 and • prevent fraudulent and manipulative Prohibit the listing of additional $32.15 series in $1 strike price intervals if the In addition, the Exchange may list the acts, to remove impediments to and to underlying stock closes at or above $50 $1 strike price interval which is $2 perfect the mechanism for a free and in its primary market and provide that above the standard strike just below the open market and a national market additional series in $1 strike price underlying price at the time of listing. system, and, in general, to protect intervals may not be added until the In the above example, since the investors and the public interest. In underlying stock closes again below standard strike just below the particular, the proposed rule change $50.14 underlying price ($24.50) is $20, the seeks to reduce investor confusion and Exchange may list a $22 strike. The to simplify the provisions of the $1 Amendments To Simplify LEAPS Rule Strike Price Interval Program. Text Exchange may add additional long-term options series strikes as the price of the B. Self-Regulatory Organization’s The early 2011 expansion of the underlying stock moves, consistent with Statement on Burden on Competition Program permitted for some limited the OLPP. listing of LEAPS in $1 strike price The proposed rule change does not intervals for classes that participate in Non-Substantive Amendments to Rule impose any burden on competition that Text is not necessary or appropriate in 9 See proposed new subparagraph (i) to The early 2011 expansion of the furtherance of the purposes of the Act. Supplementary Material .01(b). Program prohibited the listing of $2.50 10 Id. C. Self-Regulatory Organization’s strike price intervals for classes that 11 Id. Statement on Comments on the 12 See proposed new subparagraph (ii) to participate in the Program. This Proposed Rule Change Received From Supplementary Material .01(b). prohibition applies to non-LEAP and Members, Participants, or Others 13 See proposed new subparagraph (iii) to LEAPS. The Exchange proposes to Supplementary Material .01(b). Rule 504A(b(i) maintain this prohibition and codify it The Exchange has not solicited, and provides, ‘‘[t]he price of a security is measured by: (1) For intra-day add-on series and next-day series in Supplementary Material .01(a) does not intend to solicit, comments on additions, the daily high and low of all prices (Program Description). this proposed rule change. The reported by all national securities exchanges; (2) for For ease of reference, the Exchange is Exchange has not received any new expiration months, the daily high and low of proposing to add the headings ‘‘Program unsolicited written comments from all prices reported by all national securities exchanges on the day the Exchange determines it Description,’’ ‘‘Initial and Additional members or other interested parties. preliminary notification of new series; and (3) for Series’’ and ‘‘LEAPS’’ to Supplementary option series to be added as a result of pre-market Material .01. III. Date of Effectiveness of the trading, the most recent share price reported by all The Exchange is proposing to more Proposed Rule Change and Timing for national securities exchanges between 8:45 a.m. and accurately reflect the nature of the Commission Action 9:30 a.m. (Eastern Time).’’ 14 See proposed new subparagraph (iv) to Program and is proposing to make Because the foregoing proposed rule Supplementary Material .01(b). The Exchange stylistic changes throughout change does not significantly affect the believes that it is important to codify this additional Supplementary Material .01 by adding protection of investors or the public series criterion because there have been conflicting the phrase ‘‘price interval.’’ Lastly, the interpretations among the exchanges that have interest, does not impose any significant adopted similar programs. The $50 price criterion Exchange is making technical changes burden on competition, and, by its for additional series was intended when the terms, does not become operative for 30 Program was originally established (as a pilot) in 15 The Exchange notes that a $2 wing is not days from the date on which it was 2003. See Securities Exchange Act Release No. permitted between the standard $20 and $25 strikes 48033 (June 16, 2003) 68 FR 37036 (June 20, 2003) in the above example. This is because the $2 wings filed, or such shorter time as the (SR–ISE–2003–17) (‘‘ISE may list an additional are added based on reference to the price of the Commission may designate, it has expiration month provide that the underlying stock underlying and as being between the standard become effective pursuant to Section closes below $20 on its primary market on strikes above and below the price of the underlying expiration Friday. If the underlying stock closes at stock. Since the price of the underlying stock or above $20 on expiration Friday, ISE will not list ($24.50) straddles the standard strikes of $20 and 16 15 U.S.C. 78a et seq. an additional month for a $1 strike series until the $25, no $2 wing is permitted between these 17 15 U.S.C. 78f(b). stock again closes below $20.’’) standard strikes. 18 15 U.S.C. 78f(b)(5).

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19(b)(3)(A) of the Act 19 and Rule 19b– All submissions should refer to File Bureau of Educational and Cultural 4(f)(6) thereunder.20 Number SR–ISE–2011–59. This file Affairs announces an open competition The Exchange has requested that the number should be included on the for the administration of the FY 2012 Commission waive the 30-day operative subject line if e-mail is used. To help the Global Undergraduate Exchange delay. The Commission believes that Commission process and review your Program in Serbia and Montenegro waiver of the operative delay is comments more efficiently, please use (UGRAD). The total amount of funding consistent with the protection of only one method. The Commission will for this award will be up to $1,537,575, investors and the public interest post all comments on the Commission’s pending the transfer of Assistance for because the proposal is substantially Internet Web site (http://www.sec.gov/ Europe, Eurasia and Central Asia similar to that of another exchange that rules/sro.shtml). Copies of the (AEECA) funds for obligation in FY has been approved by the submission, all subsequent 2012. Public and private non-profit Commission.21 Therefore, the amendments, all written statements organizations meeting the provisions Commission designates the proposal with respect to the proposed rule described in IRS regulation 26 CFR operative upon filing.22 change that are filed with the 1.501(c)(3) may submit proposals to At any time within 60 days of the Commission, and all written administer the placement, monitoring, filing of the proposed rule change, the communications relating to the evaluation, follow-on, and alumni Commission summarily may proposed rule change between the activities for the UGRAD program. temporarily suspend such rule change if Commission and any person, other than Recruitment and selection of it appears to the Commission that such those that may be withheld from the participants will be administered by a action is necessary or appropriate in the public in accordance with the separate organization in conjunction public interest, for the protection of provisions of 5 U.S.C. 552, will be with the U.S. Embassies in Serbia and investors, or otherwise in furtherance of available for Web site viewing and Montenegro. Organizations with less the purposes of the Act. If the printing in the Commission’s Public than four years experience in Commission takes such action, the Reference Room, 100 F Street, NE., conducting international exchange Commission shall institute proceedings Washington, DC 20549, on official programs are not eligible for this to determine whether the proposed rule business days between the hours of 10 competition. should be approved or disapproved. a.m. and 3 p.m. Copies of such filing The UGRAD Program provides also will be available for inspection and outstanding students from Serbia and IV. Solicitation of Comments copying at the principal office of the Montenegro with scholarships for one Interested persons are invited to Exchange. All comments received will year of non-degree study at U.S. submit written data, views, and be posted without change; the institutions of higher education. arguments concerning the foregoing, Commission does not edit personal Scholarships are available in all fields of including whether the proposed rule identifying information from study. Funding should support a change is consistent with the Act. submissions. You should submit only minimum of 50 participants, with Comments may be submitted by any of information that you wish to make approximately 35 students from Serbia the following methods: publicly available. All submissions and 15 students from Montenegro. Every should refer to File Number SR–ISE– effort should be made to maximize the Electronic Comments 2011–59 and should be submitted on or number of scholarships awarded. • before October 20, 2011. Use the Commission’s Internet I. Funding Opportunity Description comment form (http://www.sec.gov/ For the Commission, by the Division of rules/sro.shtml); or Trading and Markets, pursuant to delegated Authority • Send an e-mail to rule- authority.23 Overall grant making authority for [email protected]. Please include File Elizabeth M. Murphy, this program is contained in the Mutual Number SR–ISE–2011–59 on the subject Secretary. Educational and Cultural Exchange Act line. [FR Doc. 2011–25075 Filed 9–28–11; 8:45 am] of 1961, Public Law 87–256, as Paper Comments BILLING CODE 8011–01–P amended, also known as the Fulbright- Hays Act. The purpose of the Act is ‘‘to • Send paper comments in triplicate enable the Government of the United to Elizabeth M. Murphy, Secretary, DEPARTMENT OF STATE States to increase mutual understanding Securities and Exchange Commission, between the people of the United States 100 F Street, NE., Washington, DC [Public Notice 7514] and the people of other countries * * *; 20549–1090. to strengthen the ties which unite us Bureau of Educational and Cultural with other nations by demonstrating the Affairs Request for Grant Proposals: 19 15 U.S.C. 78s(b)(3)(A). educational and cultural interests, Global Undergraduate Exchange 20 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– developments, and achievements of the Program in Serbia and Montenegro 4(f)(6)(iii) requires the Exchange to give the people of the United States and other Commission written notice of the Exchange’s intent to file the proposed rule change, along with a brief Announcement Type: New nations * * * and thus to assist in the description and text of the proposed rule change, Cooperative Agreement. development of friendly, sympathetic at least five business days prior to the date of filing Funding Opportunity Number: ECA/ and peaceful relations between the of the proposed rule change, or such shorter time A/E/EUR–12–04. United States and the other countries of as designated by the Commission. The Exchange has satisfied the five-day prefiling requirement. Catalog of Federal Domestic the world.’’ The funding authority for 21 See Securities Exchange Act Release No. 65383 Assistance Number: 19.009. the program above is provided through (September 22, 2011) (SR–CBOE–2011–040) (order Key Dates: Application Deadline: legislation. approving proposed rule changes to simplify the $1 November 24, 2011. Strike Price Interval Program). Executive Summary: The Office of Purpose 22 For purposes only of waiving the 30-day operative delay, the Commission has considered the Academic Exchange Programs of the The UGRAD Program is designed to proposed rule’s impact on efficiency, competition, promote mutual understanding among and capital formation. See 15 U.S.C. 78c(f). 23 17 CFR 200.30–3(a)(12). the people of Serbia and Montenegro

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and the United States by awarding 7. Assisting with SEVIS-related support all costs which are claimed as Serbian and Montenegrin undergraduate issues; contribution, as well as costs to be paid students full scholarships for one year 8. Assisting with participant by the Federal government. Such of non-degree undergraduate study at emergencies; records are subject to audit. The basis accredited two- and four-year 9. Providing background information for determining the value of cash and institutions of higher education in the related to participants’ home countries in-kind contributions must be in United States. Students will enhance and cultures; accordance with OMB Circular A–110, their academic education with 10. Providing liaison with Public (Revised), Subpart C.23—Cost Sharing community service participation and an Affairs Sections of the U.S. Embassies and Matching. In the event that the internship. The academic component of and country desk officers at the State minimum amount of cost sharing as the program begins in the fall semester Department; stipulated in the approved budget is not of the year following the Agreement 11. Providing Bureau evaluation provided, the Bureau’s contribution will start date (academic year 2012–2013). At mechanisms and instruments. be reduced in like proportion. the end of their academic programs, II. Award Information III.3. Other Eligibility Requirements students are required to immediately return to their home countries. Type of Award: Cooperative Bureau grant guidelines require that Applicant organizations must Agreement. organizations with less than four years demonstrate the ability to administer The Bureau’s level of involvement in experience in conducting international the following aspects of the UGRAD this program is listed under number I exchanges be limited to $60,000 in Program—university placements, above. Bureau funding. The Bureau anticipates orientation, monitoring and support of Fiscal Year Funds: 2012. awarding one grant, in an amount up to FY 2012 participants including all Approximate Total Funding: $1,537,575 to support program and logistics, financial management, $1,537,575. Funding will be provided administrative costs required to evaluation, follow-on, and alumni. from FY 2011/FY 2012 Assistance for implement this exchange program. Therefore, organizations with less than Recruitment and selection of Europe, Eurasia and Central Asia four years experience in conducting participants is not a component of this (AEECA) funds transferred to ECA for international exchanges are ineligible to RFGP. The cooperating organization obligation in FY 2012. apply under this competition. The will serve as the principal liaison with Approximate Number of Awards: 1. Bureau encourages applicants to UGRAD Program host institutions and Ceiling of Award Range: $1,537,575. provide maximum levels of cost sharing the Bureau. Further details on specific Anticipated Award Date: Pending the and funding in support of its programs. program responsibilities can be found in transfer of funds, December 30, 2011. the Project Objectives, Goals, and Anticipated Project Completion Date: IV. Application and Submission Implementation (POGI) Statement, December 30, 2014. Information which is part of the formal solicitation Additional Information: Pending package available from the Bureau. successful implementation of this Note: Please read the complete Interested organizations should read the program and the availability of funds in announcement before sending inquiries or entire Federal Register announcement subsequent fiscal years, it is the submitting proposals. Once the RFGP Bureau’s intent to renew this grant for deadline has passed, Bureau staff may not for all information prior to preparing discuss this competition with applicants proposals. two additional fiscal years, before until the proposal review process has been The Bureau will award one openly competing it again. Subsequent completed. awards may include the requirement to Cooperative Agreement for this IV.1 Contact Information To Request program. Should an applicant conduct a merit-based recruitment and selection component. an Application Package: organization wish to work with other Please contact Program Officer Karene organizations in the implementation of III. Eligibility Information Grad Steiner in the Office of Academic this program, the Bureau requests that a Exchange Programs, ECA/A/E/EUR, U.S. III.1. Eligible Applicants sub-grant agreement be developed. The Department of State, SA–5, U.S. same requirements apply to the sub- Applications may be submitted by Department of State, 2200 C Street, NW., grantee as to the recipient organization. public and private non-profit Washington, DC 20037, tel. (202) 632– In a Cooperative Agreement, the organizations meeting the provisions 3237, e-mail: [email protected] to Office of Academic Exchange Programs, described in Internal Revenue Code request a Solicitation Package. Please European and Eurasian Branch (ECA/A/ section 26 USC 501(c)(3). refer to the Funding Opportunity E/EUR) is substantially involved in III.2. Cost Sharing or Matching Funds Number ECA/A/E/EUR–12–04 when program activities above and beyond making your request. Alternatively, an routine grant monitoring. ECA/A/E/EUR There is no minimum or maximum electronic application package may be activities and responsibilities for this percentage required for this obtained from grants.gov. Please see program are as follows: competition. However, the Bureau section IV.3f for further information. 1. Participating in the design and encourages applicants to provide The Solicitation Package contains the direction of program activities; maximum levels of cost sharing and Proposal Submission Instruction (PSI) 2. Approval of key personnel; funding in support of its programs. document which consists of required 3. Approval and input for all program When cost sharing is offered, it is application forms, and standard agendas and timelines; understood and agreed that the guidelines for proposal preparation. It 4. Providing guidance in execution of cooperating organization must provide also contains the Project Objectives, all project components; the amount of cost sharing as stipulated Goals and Implementation (POGI) 5. Monitoring the target goal for in its proposal and later included in an document, which provides specific number of participants and expenditure approved grant agreement. Cost sharing information, award criteria and budget of funds toward meeting that goal; may be in the form of allowable direct instructions tailored to this competition. 6. Providing guidance on content and or indirect costs. For accountability, Please specify Bureau Program Officer speakers for workshops; written records must be maintained to Karene Grad Steiner and refer to the

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Funding Opportunity Number ECA/A/ application the names of directors and/ proper maintenance and security of E/EUR–12–04 on all other inquiries and or senior executives (current officers, forms, record-keeping, reporting and correspondence. trustees, and key employees, regardless other requirements. The Grantee will be of amount of compensation). In responsible for issuing DS–2019 forms IV.2. To Download a Solicitation fulfilling this requirement, applicants to participants in this program. Package Via Internet must submit information in one of the A copy of the complete regulations The entire Solicitation Package may following ways: governing the administration of be downloaded from the Bureau’s Web (1) Those who file Internal Revenue Exchange Visitor (J) programs is site at http://exchanges.state.gov/ Service Form 990, ‘‘Return of available at http://exchanges.state.gov education/rfgps/menu.htm, or from the Organization Exempt From Income or from: Grants.gov Web site at http:// Tax,’’ must include a copy of relevant Office of Designation, Private Sector www.grants.gov. portions of this form. Programs Division, U.S. Department of Please read all information before (2) Those who do not file IRS Form State, ECA/EC/D/PS, SA–5, 5th Floor, downloading. 990 must submit information above in 2200 C Street, NW., Washington, DC the format of their choice. 20037, Fax: (202) 453–8640. Please refer IV.3. Content and Form of Submission In addition to final program reporting to Solicitation Package for further Applicants must follow all requirements, award recipients will also information. instructions in the Solicitation Package. be required to submit a one-page The application should be submitted document, derived from their program IV.3d.2 Diversity, Freedom and per the instructions under IV.3f. reports, listing and describing their Democracy Guidelines ‘‘Application Deadline and Methods of grant activities. For award recipients, Pursuant to the Bureau’s authorizing Submission’’ section below. the names of directors and/or senior legislation, programs must maintain a IV.3a. You are required to have a Dun executives (current officers, trustees, non-political character and should be and Bradstreet Data Universal and key employees), as well as the one- balanced and representative of the Numbering System (DUNS) number to page description of grant activities, will diversity of American political, social, apply for a grant or cooperative be transmitted by the State Department and cultural life. ‘‘Diversity’’ should be agreement from the U.S. Government. to OMB, along with other information interpreted in the broadest sense and This number is a nine-digit required by the Federal Funding encompass differences including, but identification number, which uniquely Accountability and Transparency Act not limited to ethnicity, race, gender, identifies business entities. Obtaining a (FFATA), and will be made available to religion, geographic location, socio- DUNS number is easy and there is no the public by the Office of Management economic status, and disabilities. charge. To obtain a DUNS number, and Budget on its USASpending.gov Applicants are strongly encouraged to access http:// Web site as part of ECA’s FFATA adhere to the advancement of this www.dunandbradstreet.com or call 1– reporting requirements. principle both in program 866–705–5711. Please ensure that your If your organization is a private administration and in program content. DUNS number is included in the nonprofit which has not received a grant Please refer to the review criteria under appropriate box of the SF—424 which is or cooperative agreement from ECA in the ‘Support for Diversity’ section for part of the formal application package. the past three years, or if your specific suggestions on incorporating IV.3b. All proposals must contain an organization received nonprofit status diversity into your proposal. Public Law executive summary, proposal narrative from the IRS within the past four years, 104–319 provides that ‘‘in carrying out and budget. you must submit the necessary programs of educational and cultural Please Refer to the Solicitation documentation to verify nonprofit status exchange in countries whose people do Package. It contains the mandatory as directed in the PSI document. Failure not fully enjoy freedom and Proposal Submission Instructions (PSI) to do so will cause your proposal to be democracy,’’ the Bureau ‘‘shall take document and the Project Objectives, declared technically ineligible. appropriate steps to provide Goals and Implementation (POGI) IV.3d. Please take into consideration opportunities for participation in such document for additional formatting and the following information when programs to human rights and technical requirements. preparing your proposal narrative: democracy leaders of such countries.’’ IV.3c. All federal award recipients Public Law 106–113 requires that the IV.3d.1 Adherence to All Regulations and sub-recipients must maintain governments of the countries described Governing the J Visa current registrations in the Central above do not have inappropriate Contractor Registration (CCR) database The Bureau of Educational and influence in the selection process. and have a Dun and Bradstreet Data Cultural Affairs is placing renewed Proposals should reflect advancement of Universal Numbering System (DUNS) emphasis on the secure and proper these goals in their program contents, to number. Recipients and sub-recipients administration of Exchange Visitor (J the full extent deemed feasible. must maintain accurate and up-to-date visa) Programs and adherence by information in the CCR until all grantees and sponsors to all regulations IV.3d.3. Program Monitoring and program and financial activity and governing the J visa. Therefore, Evaluation reporting have been completed. All proposals should demonstrate the Proposals must include a plan to entities must review and update the applicant’s capacity to meet all monitor and evaluate the project’s information at least annually after the requirements governing the success, both as the activities unfold initial registration and more frequently administration of the Exchange Visitor and at the end of the program. The if required information changes or Programs as set forth in 22 CFR part 62, Bureau recommends that your proposal another award is granted. including the oversight of Responsible include a draft survey questionnaire or You must have nonprofit status with Officers and Alternate Responsible other technique plus a description of a the IRS at the time of application. Please Officers, screening and selection of methodology to use to link outcomes to note: Effective January 7, 2009, all program participants, provision of pre- original project objectives. The Bureau applicants for ECA federal assistance arrival information and orientation to expects that the recipient organization awards must include in their participants, monitoring of participants, will track participants or partners and

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be able to respond to key evaluation partnerships, policy reforms, new (i.e., DHL, Federal Express, UPS, questions, including satisfaction with programming, and organizational Airborne Express, or U.S. Postal Service the program, learning as a result of the improvements. Express Overnight Mail, etc.), or program, changes in behavior as a result Please note: Consideration should be given (2.) electronically through http:// of the program, and effects of the to the appropriate timing of data collection www.grants.gov. program on institutions (institutions in for each level of outcome. For example, Along with the Project Title, all which participants work or partner satisfaction is usually captured as a short- applicants must enter the above institutions). The evaluation plan term outcome, whereas behavior and Reference Number in Box 11 on the SF– should include indicators that measure institutional changes are normally 424 contained in the mandatory gains in mutual understanding as well considered longer-term outcomes. Proposal Submission Instructions (PSI) as substantive knowledge. Overall, the quality of your of the solicitation document. Successful monitoring and evaluation monitoring and evaluation plan will be depend heavily on setting clear goals IV.3f.1 Submitting Printed Applications judged on how well it (1) Specifies and outcomes at the outset of a program. intended outcomes; (2) gives clear Applications must be shipped no later Your evaluation plan should include a descriptions of how each outcome will than the above deadline. Delivery description of your project’s objectives, be measured; (3) identifies when services used by applicants must have your anticipated project outcomes, and particular outcomes will be measured; in-place, centralized shipping how and when you intend to measure and (4) provides a clear description of identification and tracking systems that these outcomes (performance the data collection strategies for each may be accessed via the Internet and indicators). The more that outcomes are outcome (i.e., surveys, interviews, or delivery people who are identifiable by ‘‘smart’’ (specific, measurable, commonly recognized uniforms and attainable, results-oriented, and placed focus groups). (Please note that evaluation plans that deal only with the delivery vehicles. Proposals shipped on in a reasonable time frame), the easier or before the above deadline but it will be to conduct the evaluation. You first level of outcomes [satisfaction] will be deemed less competitive under the received at the Bureau more than seven should also show how your project days after the deadline will be ineligible objectives link to the goals of the present evaluation criteria.) Recipient organizations will be for further consideration under this program described in this RFGP. competition. Proposals shipped after the Your monitoring and evaluation plan required to provide reports analyzing their evaluation findings to the Bureau established deadlines are ineligible for should clearly distinguish between consideration under this competition. program outputs and outcomes. Outputs in their regular program reports. All data collected, including survey The Bureau will not notify you upon are products and services delivered, receipt of application. It is each often stated as an amount. Output responses and contact information, must be maintained for a minimum of three applicant’s responsibility to ensure that information is important to show the each package is marked with a legible scope or size of project activities, but it years and provided to the Bureau upon request. tracking number and to monitor/confirm cannot substitute for information about delivery to the Bureau via the Internet. progress towards outcomes or the IV.3e. Please take the following information into consideration when Delivery of proposal packages may not results achieved. Examples of outputs be made via local courier service or in include the number of people trained or preparing your budget: IV.3e.1. Applicants must submit SF– person for this competition. Faxed the number of seminars conducted. documents will not be accepted at any Outcomes, in contrast, represent 424A—‘‘Budget Information—Non- Construction Programs’’ along with a time. Only proposals submitted as specific results a project is intended to stated above will be considered. achieve and is usually measured as an comprehensive budget for the entire program. There must be a summary Important note: When preparing your extent of change. Findings on outputs submission please make sure to include and outcomes should both be reported, budget as well as breakdowns reflecting both administrative and program one extra copy of the completed SF–424 but the focus should be on outcomes. form and place it in an envelope We encourage you to assess the budgets. Applicants may provide addressed to ‘‘ECA/EX/PM’’. following four levels of outcomes, as separate sub-budgets for each program they relate to the program goals set out component, phase, location, or activity The original and eight copies of the in the RFGP (listed here in increasing to provide clarification. application should be sent to: order of importance): IV.3e.2. Allowable costs for the Program Management Division, ECA– 1. Participant satisfaction with the program include the following: IIP/EX/PM, Ref.: ECA/A/E/EUR–12–04, program and exchange experience. (1) Program Expenses. SA–5, Floor 4, Department of State, 2. Participant learning, such as (2) Domestic Administration. 2200 C Street, NW., Washington, DC increased knowledge, aptitude, skills, (3) Overseas Administration. 20037. and changed understanding and Please refer to the Solicitation Applicants submitting hard-copy attitude. Learning includes both Package for complete budget guidelines applications must also submit the substantive (subject-specific) learning and formatting instructions. ‘‘Executive Summary’’ and ‘‘Proposal and mutual understanding. IV.3f. Application Deadline and Narrative’’ sections of the proposal in 3. Participant behavior, concrete Methods of Submission: text (.txt) format on a CD–ROM. The actions to apply knowledge in work or Application Deadline Date: 11/24/ Bureau will provide these files community; greater participation and 2011. electronically to the appropriate Public responsibility in civic organizations; Reference Number: ECA/A/E/EUR– Affairs Section(s) at the U.S. embassies interpretation and explanation of 12–04. for their review. experiences and new knowledge gained; Methods of Submission: Electronic IV.3f.2—Submitting Electronic continued contacts between and Hard Copy. Applications participants, community members, and Applications may be submitted in one Applicants have the option of others. of two ways: submitting proposals electronically 4. Institutional changes, such as (1.) In hard-copy, via a nationally through Grants.gov (http:// increased collaboration and recognized overnight delivery service www.grants.gov). Complete solicitation

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packages are available at Grants.gov in difference between a submission receipt reasonable, feasible, and flexible. the ‘‘Find’’ portion of the system. and a submission validation. Applicants Proposals should clearly demonstrate will receive a validation e-mail from how the institution will meet the Please Note: The Bureau bears no program’s objectives and plan. responsibility for applicant timeliness of grants.gov upon the successful submission or data errors resulting from submission of an application. Again, 3. Multiplier effect/impact: Proposed transmission or conversion processes for validation of an electronic submission programs should strengthen long-term proposals submitted via Grants.gov. via Grants.gov can take up to two mutual understanding, including business days. Therefore, we strongly maximum sharing of information and Please follow the instructions recommend that you not wait until the establishment of long-term institutional available in the ‘Get Started’ portion of application deadline to begin the and individual linkages. the site (http://www.grants.gov/ submission process through Grants.gov. 4. Support of Diversity: Proposals GetStarted). The Bureau will not notify you upon should demonstrate substantive support Several of the steps in the Grants.gov receipt of electronic applications. of the Bureau’s policy on diversity. registration process could take several It is the responsibility of all Achievable and relevant features should weeks. Therefore, applicants should applicants submitting proposals via the be cited in both program administration check with appropriate staff within their Grants.gov web portal to ensure that (program venues and program organizations immediately after proposals have been received by evaluation) and program content reviewing this RFGP to confirm or Grants.gov in their entirety, and the (orientation and wrap-up sessions, determine their registration status with Bureau bears no responsibility for data program meetings, resource materials Grants.gov. errors resulting from transmission or and follow-up activities). Once registered, the amount of time it conversion processes. 5. Institutional Record and Capacity: can take to upload an application will IV.3g. Intergovernmental Review of Proposed personnel and institutional vary depending on a variety of factors Applications: Executive Order 12372 resources should be adequate and including the size of the application and does not apply to this program. appropriate to achieve the program or the speed of your internet connection. project’s goals. Proposals should In addition, validation of an electronic V. Application Review Information demonstrate an institutional record of submission via Grants.gov can take up V.1. Review Process successful exchange programs, to two business days. including responsible fiscal Therefore, we strongly recommend The Bureau will review all proposals management and full compliance with that you not wait until the application for technical eligibility. Proposals will all reporting requirements for past deadline to begin the submission be deemed ineligible if they do not fully Bureau awards (grants or cooperative process through Grants.gov. adhere to the guidelines stated herein agreements) as determined by Bureau The Grants.gov Web site includes and in the Solicitation Package. All Grants Staff. The Bureau will consider extensive information on all phases/ eligible proposals will be reviewed by the past performance of prior recipients aspects of the Grants.gov process, the program office, as well as the Public and the demonstrated potential of new including an extensive section on Diplomacy section overseas, where applicants. frequently asked questions, located appropriate. Eligible proposals will be 6. Follow-on Activities and under the ‘‘For Applicants’’ section of subject to compliance with Federal and Evaluation: Proposals should provide a the Web site. The Bureau strongly Bureau regulations and guidelines and plan for continued follow-on activity recommends that all potential forwarded to Bureau grant panels for (without Bureau support) ensuring that applicants review thoroughly the advisory review. Proposals may also be Bureau supported programs are not Grants.gov Web site, well in advance of reviewed by the Office of the Legal isolated events. Proposals also should submitting a proposal through the Adviser or by other Department include a plan to evaluate the activity’s Grants.gov system. The Bureau bears no elements. Final funding decisions are at success, both as the activities unfold responsibility for data errors resulting the discretion of the Department of and at the end of the program. A draft from transmission or conversion State’s Assistant Secretary for survey questionnaire or other technique processes. Educational and Cultural Affairs. Final plus description of a methodology to Direct all questions regarding technical authority for cooperative use to link outcomes to original project Grants.gov registration and submission agreement awards resides with the objectives is recommended. to: Bureau’s Grants Officer. 7. Cost-sharing and cost-effectiveness: Grants.gov Customer Support. Contact Review Criteria The overhead and administrative Center Phone: 800–518–4726. Business components of the proposal, including Hours: Monday–Friday, 7 a.m.–9 p.m. Technically eligible applications will salaries and honoraria, should be kept Eastern Time. E-mail: be competitively reviewed according to as low as possible. All other items [email protected]. the criteria stated below. These criteria should be necessary and appropriate. Applicants have until midnight (12 are not rank ordered and all carry equal Proposals should maximize cost-sharing a.m.), Washington, DC time of the weight in the proposal evaluation: through other private sector support as closing date to ensure that their entire 1. Quality of the program idea and well as institutional direct funding application has been uploaded to the program planning: Proposals should contributions. Grants.gov site. There are no exceptions exhibit originality, substance, precision, to the above deadline. Applications and relevance to the Bureau’s mission. VI. Award Administration Information uploaded to the site after midnight of Detailed agenda and relevant work plan VI.1a. Award Notices: Final awards the application deadline date will be should demonstrate substantive cannot be made until funds have been automatically rejected by the grants.gov undertakings and logistical capacity. appropriated by Congress, allocated and system, and will be technically Agenda and plan should adhere to the committed through internal Bureau ineligible. program overview and guidelines procedures. Successful applicants will Please refer to the Grants.gov Web described above. receive an Assistance Award Document site, for definitions of various 2. Ability to achieve program (AAD) from the Bureau’s Grants Office. ‘‘application statuses’’ and the objectives: Objectives should be The AAD and the original grant

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proposal with subsequent modifications Award recipients will be required to provided by the Bureau that contradicts (if applicable) shall be the only binding provide reports analyzing their published language will not be binding. authorizing document between the evaluation findings to the Bureau in Issuance of the RFGP does not recipient and the U.S. Government. The their regular program reports. (Please constitute an award commitment on the AAD will be signed by an authorized refer to IV. Application and Submission part of the Government. The Bureau Grants Officer, and mailed to the Instructions (IV.3.d.3) above for Program reserves the right to reduce, revise, or recipient’s responsible officer identified Monitoring and Evaluation increase proposal budgets in accordance in the application. information). with the needs of the program and the Unsuccessful applicants will receive All data collected, including survey availability of funds. Awards made will notification of the results of the responses and contact information, must be subject to periodic reporting and application review from the Bureau be maintained for a minimum of three evaluation requirements per section VI.3 program office coordinating this years and provided to the Bureau upon above. competition. request. Dated: September 20, 2011. All reports must be sent to the Bureau VI.2 Administrative and National J. Adam Ereli, Policy Requirements: Terms and Grants Officer and the Bureau Program Officer listed in the final assistance Principal Deputy Assistant Secretary, Bureau Conditions for the Administration of of Educational and Cultural Affairs, U.S. Bureau agreements include the award document. Department of State. Program Data Requirements: Award following: [FR Doc. 2011–24988 Filed 9–28–11; 8:45 am] Office of Management and Budget recipients will be required to maintain BILLING CODE 4710–05–P Circular A–122, ‘‘Cost Principles for specific data on program participants Nonprofit Organizations.’’ and activities in an electronically Office of Management and Budget accessible database format that can be DEPARTMENT OF STATE Circular A–21, ‘‘Cost Principles for shared with the Bureau as required. As Educational Institutions.’’ a minimum, the data must include the [Public Notice 7603] OMB Circular A–87, ‘‘Cost Principles following: Notice of Public Meeting for State, Local and Indian (1) Name, address, contact Governments.’’ information, biographic sketch, and U.S. Summary: The U.S. Department of OMB Circular No. A–110 (Revised), host institution of higher education of State, Bureau of Oceans and Uniform Administrative Requirements all persons who travel internationally International Environmental and for Grants and Agreements with on funds provided by the agreement or Scientific Affairs (OES), Office of Institutions of Higher Education, who benefit from the award funding but Marine Conservation announces that the Hospitals, and other Nonprofit do not travel. Advisory Panel to the U.S. Section of Organizations. (2) Itineraries of international and the North Pacific Anadromous Fish OMB Circular No. A–102, Uniform domestic travel, providing dates of Commission will meet on October 6, Administrative Requirements for travel and cities in which any exchange 2011. Grants-in-Aid to State and Local experiences take place. Final schedules Dates: The meeting will take place via Governments. for in-country and U.S. activities must teleconference on October 6th, 2011, OMB Circular No. A–133, Audits of be received by the Bureau Program from 2 p.m. to 4 p.m. Eastern time. States, Local Government, and Non- Officer at least two week days prior to Meeting Details: The teleconference profit Organizations. the official opening of the activity. call-in number is toll-free 1–888–989– Please reference the following Web VII. Agency Contacts 7597, passcode 21898, and will have a sites for additional information: http:// limited number of lines for members of www.whitehouse.gov/omb/grants. For questions about this the public to access from anywhere in http://fa.statebuy.state.gov. announcement, contact: Program Officer the United States. Callers will hear VI.3. Reporting Requirements: You Karene Grad Steiner, Office of Academic instructions for using the passcode and must provide the Bureau with a hard Exchange Programs, ECA/A/E/EUR, joining the call after dialing the toll-free copy original plus one copy of the Reference Number: ECA/A/E/EUR–12– number noted. Members of the public following reports: 04, U.S. Department of State, 2200 C wishing to participate in the (1) A final program and financial Street, NW., Washington, DC 20037, teleconference must contact the OES report no more than 90 days after the (202) 632–3237, e-mail: officer in charge as noted in the FOR expiration of the award; [email protected]. FURTHER INFORMATION CONTACT section (2) A concise, one-page final program All correspondence with the Bureau below no later than close of business on report summarizing program outcomes concerning this RFGP should reference Tuesday, October 4th, 2011. no more than 90 days after the the title and number ECA/A/E/EUR–12– For Further Information Contact: John expiration of the award. This one-page 04. Please read the complete Field, Office of Marine Conservation, report will be transmitted to OMB, and announcement before sending inquiries OES, Room 2758, U.S. Department of be made available to the public via or submitting proposals. Once the RFGP State, 2201 C Street, NW., Washington, OMB’s USAspending.gov Web site—as deadline has passed, Bureau staff may DC 20520. Telephone (202) 647–3263, part of the Bureau’s Federal Funding not discuss this competition with fax (202) 736–7350, e-mail fieldjd@state. Accountability and Transparency Act applicants until the proposal review gov. (FFATA) reporting requirements. process has been completed. Supplementary Information: In (3) A SF–PPR, ‘‘Performance Progress VIII. Other Information accordance with the requirements of the Report’’ Cover Sheet with all program Federal Advisory Committee Act, notice reports. Notice is given that the Advisory Panel to the (4) Quarterly program and financial The terms and conditions published U.S. Section of the North Pacific reports which should include in this RFGP are binding and may not Anadromous Fish Commission (NPAFC) summaries of program activity and be modified by any Bureau will meet on the date and time noted lessons learned. representative. Explanatory information above.

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The panel consists of members from FOR FURTHER INFORMATION CONTACT: Room W12–140 of the West Building the states of Alaska and Washington Laura Hellstern, DFO for ITAC–11 at Ground Floor at 1200 New Jersey who represent the broad range fishing (202) 482–3222, Department of Avenue, SE., Washington, DC, between and conservation interests in Commerce, 14th Street and Constitution 9 a.m. and 5 p.m., Monday through anadromous and ecologically related Avenue, NW., Washington, DC 20230. Friday, except Federal holidays. species in the North Pacific. Certain SUPPLEMENTARY INFORMATION: The Privacy: We will post all comments members also represent relevant state Agenda topics to be discussed are: we receive, without change, to http:// and regional authorities. The panel was www.regulations.gov, including any —Small Business Export Finance personal information you provide. established in 1992 to advise the U.S. Update. Section of the NPAFC on research needs Using the search function of our docket —Trans-Atlantic Business Dialogue web site, anyone can find and read the and priorities for anadromous species, Activities. such as salmon, and ecologically related comments received into any of our —U.S. Commercial Service National dockets, including the name of the species occurring in the high seas of the Export Initiatives (NEI) Update. North Pacific Ocean. The upcoming individual sending the comment (or Panel meeting will focus on two major Carlos H. Romero, signing the comment for an association, topics: (1) Review of the agenda for the Assistant U.S. Trade Representative for business, labor union, etc.). You may 2011 annual meeting of the NPAFC Intergovernmental Affairs and Public review DOT’s complete Privacy Act (October 24–28; Nanaimo, British Engagement. Statement in the Federal Register Columbia, Canada); and (2) logistics for [FR Doc. 2011–25031 Filed 9–28–11; 8:45 am] published on April 11, 2000 (65 FR the U.S. Section at the NPAFC meeting. BILLING CODE 3190–W1–P 19477–78). Background material is available from Docket: To read background the point of contact noted above and by documents or comments received, go to http://www.regulations.gov at any time visiting http://www.npafc.org. DEPARTMENT OF TRANSPORTATION This announcement will appear in the or to the Docket Management Facility in Federal Register less than 15 days prior Federal Aviation Administration Room W12–140 of the West Building to the meeting. Ground Floor at 1200 New Jersey [Summary Notice No. PE–2011–42] The Department of State finds that Avenue, SE., Washington, DC, between there is an exceptional circumstance in 9 a.m. and 5 p.m., Monday through Petition for Exemption; Summary of Friday, except Federal holidays. that this advisory committee meeting Petition Received must be held on October 6th in order to FOR FURTHER INFORMATION CONTACT: adequately prepare for the NPAFC to be AGENCY: Federal Aviation Keira Jones (202) 267–4024, Tyneka convened in Canada beginning October Administration (FAA), DOT. Thomas (202) 267–7626, or David 24th, including the logistics involved in ACTION: Notice of petition for exemption Staples (202) 267–4058, Office of attending the meeting. received. Rulemaking, Federal Aviation Administration, 800 Independence Dated: September 23, 2011. SUMMARY: This notice contains a Avenue, SW., Washington, DC 20591. John Field, summary of a petition seeking relief This notice is published pursuant to Acting Director, Office of Marine from specified requirements of 14 CFR. 14 CFR 11.85. Conservation, Department of State. The purpose of this notice is to improve Issued in Washington, DC, on September [FR Doc. 2011–25113 Filed 9–28–11; 8:45 am] the public’s awareness of, and 23, 2011. BILLING CODE 4710–09–P participation in, this aspect of FAA’s Julie Ann Lynch, regulatory activities. Neither publication Acting Director, Office of Rulemaking. of this notice nor the inclusion or omission of information in the summary Petition for Exemption OFFICE OF THE UNITED STATES Docket No.: FAA–2011–1032. TRADE REPRESENTATIVE is intended to affect the legal status of the petition or its final disposition. Petitioner: Flying Fireman, Inc. Section of 14 CFR Affected: 14 CFR Notice of Meeting of the Industry Trade DATES: Comments on this petition must 91.313(a) and (e) Advisory Committee on Small and identify the petition docket number Description of Relief Sought: Flying Minority Business (ITAC–11) involved and must be received on or Fireman, Inc. requests relief to allow the before October 11, 2011. AGENCY: Office of the United States operation of a restricted category aircraft ADDRESSES: You may send comments Trade Representative. in air shows or special events that are identified by Docket Number FAA– over densely populated areas, in ACTION: Notice of an opened meeting. 2011–1032 using any of the following congested airways, or near busy airports methods: where passenger transport operations SUMMARY: The Industry Trade Advisory • Committee on Small and Minority Government-wide rulemaking Web are conducted. site: Go to http://www.regulations.gov Business (ITAC–11) will hold a meeting [FR Doc. 2011–25067 Filed 9–28–11; 8:45 am] and follow the instructions for sending on Wednesday, October 12, 2011, from BILLING CODE 4910–13–P your comments electronically. 9 a.m. to 4 p.m. The meeting will be • opened to the public from 2:30 p.m. to Mail: Send comments to the Docket 4 p.m. Management Facility; U.S. Department DEPARTMENT OF TRANSPORTATION of Transportation, 1200 New Jersey DATES: The meeting is scheduled for Avenue, SE., West Building Ground Federal Highway Administration October 12, 2011, unless otherwise Floor, Room W12–140, Washington, DC notified. 20590. Buy America Waiver Notification ADDRESSES: • The meeting will be held at Fax: Fax comments to the Docket AGENCY: Federal Highway the Ronald Reagan International Trade Management Facility at 202–493–2251. Administration (FHWA), DOT. Center, Training Room A, Washington, • Hand Delivery: Bring comments to ACTION: Notice. DC. the Docket Management Facility in

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SUMMARY: This notice provides provide information about domestic authorizes judicial review of a claim information regarding the FHWA’s manufacturers. During the 15-day provides a time period of less than 180 finding that a Buy America waiver is comment period, the FHWA conducted days for filing such claim, then the appropriate for the use of non-domestic additional nationwide review to locate shorter time period applies. 1/2’’ × 0.008 steel fiber with ultimate potential domestic manufacturers for FOR FURTHER INFORMATION CONTACT: tensile strength of 290ksi for 1/2″ × 0.008 steel fiber with ultimate For experimental use in Ultra High tensile strength of 290ksi for the FHWA: Ms. Michelle Allen, Federal Performance Concrete (UHPC) in the experimental use in UHPC in Iowa. Highway Administration, Indiana State of Iowa. Based on all the information available to Division, 575 North Pennsylvania Street, Room 254, Indianapolis, IN DATES: the agency, the FHWA concludes that The effective date of the waiver 46204–1576; telephone: (317) 226–7344; is September 30, 2011. there are no domestic manufacturers of 1/2″ × 0.008 steel fiber with ultimate e-mail: [email protected]. The FOR FURTHER INFORMATION CONTACT: For FHWA Indiana Division Office’s normal questions about this notice, please tensile strength of 290ksi for experimental use in UHPC in Iowa. business hours are 7:30 a.m. to 4 p.m., contact Mr. Gerald Yakowenko, FHWA In accordance with the provisions of E.T. For the USFWS: Mr. Scott Pruitt, Office of Program Administration, (202) section 117 of the SAFETEA–LU Field Supervisor, Bloomington Field 366–1562, or via e-mail at Technical Corrections Act of 2008 (Pub. Office, USFWS, 620 South Walker [email protected]. For legal L. 110–244, 122 Stat. 1572), the FHWA Street, Bloomington, IN 47403–2121; questions, please contact Mr. Michael is providing this notice as its finding telephone: 812–334–4261; e-mail: Harkins, FHWA Office of the Chief that a waiver of Buy America [email protected]. Normal business Counsel, (202) 366–4928, or via e-mail requirements is appropriate. The FHWA hours for the USFWS Bloomington Field at [email protected]. Office invites public comment on this finding Office are: 8 a.m. to 4:30 p.m., E.T. You hours for the FHWA are from 8 a.m. to for an additional 15 days following the may also contact Mr. Thomas Seeman, 4:30 p.m., E.T., Monday through Friday, effective date of the finding. Comments Project Manager, Indiana Department of except Federal holidays. may be submitted to the FHWA’s Web Transportation (INDOT), 100 North SUPPLEMENTARY INFORMATION: site via the link provided to the Iowa Senate Avenue, Indianapolis, IN 46204; Electronic Access waiver page noted above. telephone: (317) 232–5336; e-mail: [email protected]. Normal An electronic copy of this document (Authority: 23 U.S.C. 313; Pub. L. 110–161, 23 CFR 635.410) business hours for the Indiana may be downloaded from the Federal Department of Transportation are: 8 a.m. Issued on: September 20, 2011. Register’s home page at: http:// to 4:30 p.m., E.T. www.archives.gov and the Government Victor M. Mendez, Printing Office’s database at: http:// Administrator. SUPPLEMENTARY INFORMATION: Notice is www.access.gpo.gov/nara. [FR Doc. 2011–25004 Filed 9–28–11; 8:45 am] hereby given that the FHWA has BILLING CODE 4910–22–P approved a Tier 2 Final Environmental Background Impact Statement (FEIS) for section 4 of The FHWA’s Buy America policy in the I–69 highway project from 23 CFR 635.410 requires a domestic DEPARTMENT OF TRANSPORTATION Evansville to Indianapolis and issued a manufacturing process for any steel or Record of Decision (ROD) for section 4 iron products (including protective Federal Highway Administration on September 8, 2011. Section 4 of the coatings) that are permanently I–69 project extends from U.S. 231 (near incorporated in a Federal-aid Notice of Final Federal Agency Actions Crane Naval Surface Warfare Center) to on Proposed Highway in Indiana construction project. The regulation also the intersection of Victor Pike Road and provides for a waiver of the Buy AGENCY: Federal Highway State Road 37 (south of Bloomington). America requirements when the Administration (FHWA), DOT. Section 4 is a new alignment, fully application would be inconsistent with ACTION: Notice of Limitation on Claims access-controlled highway. As approved the public interest or when satisfactory for Judicial Review of Actions by FHWA in the Tier 1 ROD, the corridor is quality domestic steel and iron products and United States Fish and Wildlife generally 2,000 feet wide. The corridor are not sufficiently available. This Service (USFWS), DOI. width varies at three locations within notice provides information regarding Section 4. The corridor widens to the FHWA’s finding that a Buy America SUMMARY: This notice announces actions approximately 5,400 feet along the waiver is appropriate to use non- taken by the FHWA and the USFWS Greene-Monroe County Line from just domestic 1/2″ × 0.008 steel fiber with that are final within the meaning of 23 north of CR 1260E/CR 190S (Hobbieville ultimate tensile strength of 290ksi for U.S.C. 139(l)(1). The actions relate to a Road) in Greene County to just north of experimental use in UHPC in Iowa. proposed highway project for a 26.7 Carter Road in Monroe County. The In accordance with Division A, mile segment of I–69, in the Counties of Section 4 corridor narrows to section 123 of the ‘‘Consolidated Greene and Monroe, State of Indiana approximately 1,200 feet in width at Appropriations Act, 2010’’ (Pub. L. 111– and grant licenses, permits, and two locations in Monroe County, near 117), the FHWA published a notice of approvals for the project. Evans Lane and also in the vicinity of intent to issue a waiver on its Web site DATES: By this notice, the FHWA is Rockport Road and Lodge Road. The for 1/2″ × 0.008 steel fiber with ultimate advising the public that the FHWA and ROD selected Refined Preferred tensile strength of 290ksi for the USFWS have made decisions that Alternative 2 for section 4, as described experimental use in UHPC in Iowa are subject to 23 U.S.C. 139(l)(1) and are in the I–69 Evansville to Indianapolis, (http://www.fhwa.dot.gov/construction/ final within the meaning of that law. A Indiana, Tier 2 Final Environmental contracts/waivers.cfm?id=62) on August claim seeking judicial review of those Impact Statement, Crane NSWC to 23rd. The FHWA received seven Federal agency decisions on the Bloomington, Indiana (FEIS), available comments in response to the proposed highway project will be barred at http://www.i69indyevn.org/ publication. All seven commenters unless the claim is filed on or before section4_FEIS.html. The ROD also opposed the waiver request but did not March 27, 2012. If the Federal law that approved the locations of the

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interchanges, grade separations, and Previous actions taken by the USFWS above. The Tier 2, section 4, Biological access roads (which include new roads, for the Tier 1, I–69 project, pursuant to Opinion can be viewed and downloaded road relocations, and realignments). The the Endangered Species Act, 16 U.S.C. from the project Web site at http:// FHWA had previously issued a Tier 1 1531–1544, included its concurrence www.i69indyevn.org/wp-content/ FEIS and ROD for the entire I–69 project with the FHWA’s determination that the uploads/Sec4_FEIS/Sec4_Appendix- from Evansville to Indianapolis, I–69 project was not likely to adversely JJ2.pdf. Indiana. A Notice of Limitation on affect the eastern fanshell mussel (Catalog of Federal Domestic Assistance Claims for Judicial Review of Actions by (Cyprogenia stegaria) and that the Program Number 20.205, Highway Planning FHWA and United States Fish and project was likely to adversely affect, and Construction. The regulations Wildlife Service (USFWS), DOI, was but not jeopardize, the bald eagle. The implementing Executive Order 12372 published in the Federal Register on USFWS also concluded that the project regarding intergovernmental consultation on April 17, 2007. A claim seeking judicial was not likely to jeopardize the Federal programs and activities apply to this review of the Tier 1 decisions must have continued existence of the Indiana bat program.) been filed by October 15, 2007, to avoid and was not likely to adversely modify Authority: 23 U.S.C. 139(l)(1) being barred under 23 U.S.C. 139(l). the bat’s designated Critical Habitat. Robert F. Tally Jr., Decisions in the FHWA Tier 1 ROD that These USFWS decisions were described were cited in that Federal Register Division Administrator, Indianapolis, in the Programmatic Biological Opinion Indiana. notice included, but were not limited to, issued on December 3, 2003, the the following: Revised Programmatic Biological [FR Doc. 2011–25003 Filed 9–28–11; 8:45 am] 1. Purpose and need for the project. Opinion issued on August 24, 2006, and BILLING CODE 4910–22–P 2. Range of alternatives for analysis. other documents in the Tier 1 project 3. Selection of the Interstate highway records. A Notice of Limitation on DEPARTMENT OF TRANSPORTATION build alternative and highway corridor Claims for Judicial Review of these for the project, as Alternative 3C. actions and decisions by the USFWS, 4. Elimination of other alternatives Federal Motor Carrier Safety DOI, was published in the Federal from consideration in Tier 2 NEPA Administration Register on April 17, 2007. The USFWS proceedings. 5. Process for completing the Tier 2 affirmed its decisions in the Sunshine Act Meetings; Unified Carrier alternatives analysis and studies for the Amendment to the Revised Registration Plan Board of Directors Programmatic Biological Opinion issued project, including the designation of six AGENCY: Federal Motor Carrier Safety on May 25, 2011. A Notice of Limitation Tier 2 sections and a decision to prepare Administration (FMCSA), DOT. a separate environmental impact on Claims for Judicial Review of these actions and decisions by the USFWS, TIME AND DATE: October 27, 2011, 12 statement for each Tier 2 section. noon to 3 p.m., Eastern Daylight Time. The Tier 1 ROD and Notice DOI, was published in the Federal PLACE: This meeting will take place specifically noted that the ultimate Register on July 20, 2011. A claim telephonically. Any interested person alignment of the highway within the seeking judicial review of the may call 877.820.7831, passcode, corridor, and the location and number Amendment to the Revised 908048 to participate in this meeting. of interchanges and rest areas would be Programmatic Biological Opinion must evaluated in the Tier 2 NEPA be filed by January 17, 2012, to avoid STATUS: Open to the public. proceedings. Those proceedings for being barred under 23 U.S.C. 139(l). MATTERS TO BE CONSIDERED: The Unified section 4 of the I–69 project from For the Tier 2, section 4, 26.7 mile I– Carrier Registration Plan Board of Evansville to Indianapolis have 69 project in Greene and Monroe Directors (the Board) will continue its culminated in the September 8, 2011, Counties, an individual Biological work in developing and implementing ROD and this Notice. Interested parties Opinion was issued on July 6, 2011, that the Unified Carrier Registration Plan may consult the Tier 2, section 4 ROD concluded that the section 4 project was and Agreement and to that end, may and FEIS for details about each of the not likely to jeopardize the continued consider matters properly before the decisions described above and for existence of the Indiana bat and was not Board. information on other issues decided. likely to adversely modify the bat’s FOR FURTHER INFORMATION CONTACT: Mr. The Tier 2, section 4 ROD can be designated Critical Habitat. In addition, Avelino Gutierrez, Chair, Unified viewed and downloaded from the the USFWS issued an Incidental Take Carrier Registration Board of Directors at project Web site at http:// Statement subject to specified terms and (505) 827–4565. www.i69indyevn.org/. People unable to conditions. The USFWS also issued a Issued on: September 26, 2011. access the Web site may contact FHWA Bald Eagle Take Exempted Under ESA Larry W. Minor, or INDOT at the addresses listed above. permit (No. MB218918–0) for the Associate Administrator for Policy. Decisions in the section 4, Tier 2 ROD incidental take of the bald eagles for all that have final approval include, but are sections of the I–69 project. The permit [FR Doc. 2011–25314 Filed 9–27–11; 4:15 pm] not limited to, the following: 1. National was effective as of June 25, 2009, and is BILLING CODE 4910–EX–P Environmental Policy Act (NEPA) [42 subject to the terms and conditions of U.S.C. 4321–4351]. 2. Endangered the Endangered Species Act section 7 DEPARTMENT OF TRANSPORTATION Species Act [16 U.S.C. 1531–1544]. 3. incidental take statement and the Federal-Aid Highway Act [23 U.S.C. 109 August 24, 2006, Revised Programmatic Federal Railroad Administration and 23 U.S.C. 128]. 4. Clean Air Act, 42 Biological Opinion. The biological U.S.C. 7401–7671(q). 5. Section 4(f) of opinions, Bald Eagle permit no. [Docket Number FRA–2006–25862] MB218918–0, and other project records the Department of Transportation Act of Petition for Waiver of Compliance 1966 [49 U.S.C. 303]. 6. Section 106 of relating to the USFWS actions, taken the National Historic Preservation Act of pursuant to the Endangered Species Act, In accordance with part 211 of Title 1966, as amended [16 U.S.C. 470(f) et 16 U.S.C. 1531–1544, are available by 49 of the Code of Federal Regulations seq.]. 7. Bald and Golden Eagle contacting the FHWA, INDOT, or (CFR), this document provides the Protection Act [16 U.S.C. 688–688d]. USFWS at the addresses provided public notice that by a document dated

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August 15, 2011, the Union Pacific Anyone is able to search the The initial phase of AA will provide Railroad (UP) has petitioned the Federal electronic form of any written adequate information to determine Railroad Administration (FRA) for a communications and comments which alternative(s) to pursue for waiver of compliance extension from received into any of our dockets by the further analysis for implementation and certain provisions of the Federal name of the individual submitting the what level of environmental analysis railroad safety regulations contained at comment (or signing the comment, if would be necessary for project 49 CFR 240.117(e)(1)–(4); 49 CFR submitted on behalf of an association, implementation. In the second phase, 240.305(a)(1)–(4) and (6); and 49 CFR business, labor union, etc.). You may the project may solicit [or obtain] 240.307. FRA assigned the petition review DOT’s complete Privacy Act additional public, agency, and tribal Docket Number FRA–2006–25862. Statement in the Federal Register input to identify the nature and scope The Confidential Close Call Reporting published on April 11, 2000 (Volume of the environmental issues that should System (C3RS) pilot project for the UP 65, Number 70; Pages 19477–78), or be addressed during NEPA review, North Platte Service Unit was initially online at http://www.dot.gov/ following appropriate public notice approved by FRA on September 12, privacy.html. (anticipated in 2013). This NEPA 2007. The 5-year time limit is expiring Issued in Washington, DC, on September scoping process will vary depending on and subject to FRA approval, UP desires 23, 2011. whether the project requires an to continue the pilot project until Robert C. Lauby, environmental assessment or an November 18, 2014. environmental impact statement. Metro A copy of the petition, as well as any Deputy Associate Administrator for Regulatory and Legislative Operations. and FTA will notify the public of NEPA written communications concerning the [FR Doc. 2011–25064 Filed 9–28–11; 8:45 am] scoping after that decision has been petition, is available for review online at made. http://www.regulations.gov and in BILLING CODE 4910–06–P Information about upcoming public person at the U.S. Department of meetings and about the project’s Transportation’s (DOT) Docket DEPARTMENT OF TRANSPORTATION purpose is set forth below. Operations Facility, 1200 New Jersey DATES: Six public events will be held to Ave., SE., W12–140, Washington, DC Federal Transit Administration accept comments on the following dates 20590. The Docket Operations Facility and locations: is open from 9 a.m. to 5 p.m., Monday Early Scoping Notice SW Corridor Plan/Tigard Open House/ through Friday, except Federal Barbur Concept Plan, 6:30 to 8:30 Holidays. If you do not have access to AGENCY: Federal Transit Administration, p.m., September 28, 2011, Tigard the Internet, please contact FRA’s DOT. Library, Tigard. Docket Clerk at 202–493–6030 who will ACTION: Early Scoping for the Southwest PSU Farmers’ Market, 8:30 a.m. to 2 provide necessary information Corridor Plan in Metropolitan Portland, p.m., October 8, 2011, West Park concerning the contents of the petition. OR. Interested parties are invited to Avenue and Southwest Montgomery SUMMARY: The Federal Transit participate in these proceedings by Street, Portland. Administration (FTA) and the Metro King City/Tigard Area Farmers’ Market, submitting written views, data, or (Oregon) regional government issue this 9 a.m. to 2 p.m., October 16, 2011, comments. FRA does not anticipate early scoping notice to advise other 11831 SW., Pacific Hwy @ Hwy 99 & scheduling a public hearing in agencies and the public that they intend 217. connection with these proceedings since to explore alternatives for improving 24th Annual Great Onion Festival, 9 the facts do not appear to warrant a transit service between downtown a.m. to 4 p.m, October 16, 2011, hearing. If any interested party desires Portland and Sherwood, in Multnomah Archer Glen Elementary School, an opportunity for oral comment, they and Washington counties. The early 16155 SW Sunset Blvd. Sherwood. should notify FRA, in writing, before scoping is occurring within the context 8th Annual West Coast Giant Pumpkin the end of the comment period and of the Council on Environmental Regatta, 10 a.m. to 4 p.m., October 22, specify the basis for their request. 2011, Tualatin Commons, Tualatin. All communications concerning these Quality’s regulations for complying with proceedings should identify the the National Environmental Policy Act The public meetings will have appropriate docket number and may be (NEPA). Several alternatives will be information and staff available to submitted by any of the following examined to explore their potential for discuss the project and answer methods: implementation of a major transit questions, and there will be • Web site: http:// capital investment under the New Starts opportunities for spoken and written www.regulations.gov. Follow the online funding program including light rail, comments. Information is also available instructions for submitting comments. bus rapid transit, rapid streetcar, high on the Metro Web site at: http:// • Fax: 202–493–2251. occupancy vehicle lanes, high www.swcorridorplan.org. Written • Mail: Docket Operations Facility, occupancy toll lanes and a scoping comments are requested by U.S. Department of Transportation, 1200 transportation system management October 28, 2011 and can be sent or New Jersey Avenue, SE., W12–140, (TSM) alternative. Public workshops emailed to the address below, submitted Washington, DC 20590. have been planned and are described at the public meetings, or provided via • Hand Delivery: 1200 New Jersey below. The FTA Alternatives Analysis the online comment form available at Avenue, SE., Room W12–140, (AA) process, as described in 49 U.S.C. http://www.swcorridorplan.org. Washington, DC 20590, between 9 a.m. 5309 (a) (1), will assess a wide range of Any individual who requires special and 5 p.m., Monday through Friday, public transportation alternatives assistance, such as a sign language except Federal Holidays. designed to address the transportation interpreter, to participate in a public Communications received within problems within the corridor. This workshop should contact Jenn Tuerk at October 31, 2011 will be considered by process will involve a more robust and (503) 797–1756 or FRA before final action is taken. detailed level of alternatives and will [email protected]. Comments received after that date will ultimately lead to the selection of a Interagency and Tribal Coordination be considered as far as practicable. locally preferred alternative. Meetings:

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Interagency and Tribal coordination precursors to NEPA’s required statement planning for synergistic investments meetings will occur at various times of purpose and need and consideration and policies in land use and throughout this study to identify of specific project alternatives. Where transportation. The resulting projects evaluation criteria, and to assist in state and local planning can lead toward and policies from the plan will leverage developing and screening alternatives a well defined purpose and need public investments for improved during this planning process. statement and satisfy the requirements mobility and increased access to ADDRESSES: Written comments to inform for NEPA, including scoping, it should employment, housing, education, and the scope of this project should be not have to be duplicated later in that other services. The Southwest Corridor submitted by October 28, 2011 to Jenn process. See 40 CFR 1506.2(b). Plan calls for local land use planning, Tuerk, Metro, 600 NE Grand Ave., Accordingly, in the Southwest Corridor which will identify land use actions and Portland, OR 97232. Telephone: (503) AA, Metro will explore alternative investments (including transit) to 797–1756. E-mail: configurations of mode, alignment, and support livable communities; a Corridor [email protected]. stations, and will examine costs, Refinement Plan to examine the funding, ridership, economic function, mode, and general location of FOR FURTHER INFORMATION CONTACT: John development, land use, engineering transportation improvements; and the Witmer, Community Planner, Federal feasibility, and environmental factors New Starts Alternatives Analysis (AA). Transit Administration, Region 10, 915 associated with each. All alternatives The Southwest Corridor Plan Second Ave., Room 3142, Seattle, WA will be compared to (i) A ‘‘No-Build’’ implements the 2040 Growth Concept, 98174. Telephone: (206) 220–7964; E- alternative, which represents the future adopted in 1995, and the 2035 Regional mail: [email protected] transportation system through the year Transportation Plan (RTP), adopted in SUPPLEMENTARY INFORMATION: 2035 without Southwest Corridor transit 2010. In 2008, the Metro Council Early Scoping improvements, and (ii) a Transportation adopted six desired outcomes that Systems Management (TSM) alternative, describe a sustainable and prosperous Early scoping is a NEPA process that which will examine methods for region; those outcomes, along with the is particularly useful in situations improving transit in the Southwest DOT/HUD/EPA Partnership for where, as here, a proposed action (the Corridor without significant new capital Sustainable Communities livability locally preferred alternative) has not investment (for instance, more frequent principles, guide the Southwest been identified and several broad bus service, new or expanded park and Corridor Plan. The RTP identified the alternatives are under consideration. ride capacity, and/or freeway or arterial Southwest Corridor as the corridor with While scoping generally follows transit priority improvements). the greatest need for multimodal issuance of a notice of intent to prepare Following this analysis, a locally regional transportation investments, and an Environmental Impact Statement preferred alternative—the ‘‘proposed identified the Southwest Corridor as the (EIS), which must describe the proposed action’’—will be determined, as will the region’s next priority for transit action, it ‘‘may be initiated earlier, as appropriate level of NEPA review investment measured by 25 evaluation long as there is appropriate public (environmental assessment or EIS). If an criteria, including the potential to notice and enough information on the EIS is warranted, FTA will publish a improve transit service for the highest proposal so that the public and relevant notice of intent in the Federal Register number of new and existing riders. The agencies can participate effectively.’’ and will invite and consider comments corridor ranked highest among the 55 Council on Environmental Quality on the proposed action’s purpose and corridors examined. (CEQ), ‘‘Forty Most Asked Questions need, the range of alternatives to be Concerning CEQ’s NEPA Regulations,’’ considered, and the potentially Purposes of the Southwest Corridor AA 46 CFR parts 18026, 18030 (1981) significant environmental impacts. The Southwest Corridor AA will (answer to question 13). In this case, determine how a transit investment available information is adequate to The Southwest Corridor and Regional Planning could best meet livability and permit the public and agencies to community needs, provide participate effectively. Early scoping The Southwest Corridor runs 15 miles environmental benefits, and support the provides a way to avoid duplication, from Portland, Oregon to Sherwood, economy. The plan will evaluate the waste and delay. Oregon. It generally follows Interstate 5 potential for implementation based on (I–5) and State Highway OR 99W (99W). New Starts Planning costs, benefits and efficiencies of The two highways parallel each other operations. In this corridor, a transit New Starts is a discretionary FTA closely from Portland to Tigard, where investment should: funding program for major capital they diverge. I–5 and 99W serve as the • Increase economic opportunities by investments in transit. Planning for an main travel routes between Portland, improving movement/access between anticipated transit project in the Tigard and Tualatin; 99W is the main markets. Southwest Corridor will adhere to New travel route to the cities of King City and • Increase access to major regional Starts’ required Alternatives Analysis Sherwood. Arterials and bus service destinations and activity centers; process as outlined in 49 U.S.C. support movements in and through the regionally significant employment, 5309(a)(1). The alternatives analysis corridor. The arterial, collector, and educational and commercial centers; process requires a broad evaluation of local street network in the vicinity of and affordable housing. alternatives by examining several much of the corridor is winding and • Address increasing growth in an options of mode and alignment that discontinuous because of the varying already congested corridor by providing could address defined mobility needs, topography and suburban style affordable transportation options for in order to determine which particular development patterns. Pedestrian households and businesses. investment strategy should be advanced connectivity is limited, much of the area • Improve safety and efficiency for all for more focused study and lacks sidewalks and crosswalks, and modes of travel . development. The result is a clearly bicycle paths are discontinuous. • Develop solutions to the constraints defined project problem statement and The Southwest Corridor Plan seeks to of the existing landscape. an analysis of planning-level create livable and sustainable • Limit carbon and other air pollutant alternatives, which are helpful communities by simultaneously emissions by planning for efficient and

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complementary land use and DATES: Written comments on the scope SUPPLEMENTARY INFORMATION: transportation solutions . of alternatives and impacts to be Background: On September 27, 2010, • Be fiscally sustainable. considered in the EIS must be received FTA and Sound Transit issued an early • Avoid or minimize environmental no later than October 31, 2011, and scoping notice in the Federal Register impacts of the transportation system. must be sent to Sound Transit as • for the North Corridor Transit Project Enhance the natural environment indicated below. Alternatives Analysis. Sound Transit and access to natural areas. Information about the proposed has now completed the Alternatives Issued on: September 19, 2011. project, the Alternatives Analysis Analysis, which provides the basis for R.F. Krochalis, findings, and the EIS process will be identifying the most promising Regional Administrator, Region 10. available at three public scoping alternatives to be evaluated. FTA and [FR Doc. 2011–25060 Filed 9–28–11; 8:45 am] meetings and one tribal and agency Sound Transit are now informing the scoping meeting. Sound Transit and BILLING CODE 4910–57–P public of their intent to initiate the FTA will accept comments at those NEPA review, based on the findings of meetings, which will be held on the the Alternatives Analysis. DEPARTMENT OF TRANSPORTATION following dates and locations: Description of the North Corridor Public Meetings Federal Transit Administration October 11, 2011: 6 p.m. to 8 p.m., The proposed project would begin at Environmental Impact Statement; Shoreline Conference Center, 18560 1st Northgate Transit Center in north North Corridor Transit Project, Seattle Avenue NE., Shoreline, WA 98155. Seattle and end at the Lynnwood (WA) Metropolitan Area (King and October 13, 2011: 6 p.m. to 8 p.m., Transit Center. The corridor generally Snohomish Counties) Embassy Suites, 20610 44th Ave. W, follows Interstate 5 (I–5), the major Lynnwood, WA 98036. north-south route through Washington AGENCY: Federal Transit Administration, October 18, 2011: 6 p.m. to 8 p.m., State and serves a large commuter DOT. Ingraham High School, 1819 N. 135th market traveling between Snohomish ACTION: Notice of Intent to Prepare an St., Seattle, WA 98133. and King Counties and the City of Environmental Impact Statement (EIS). Agency and Tribal Meeting Seattle. It is within a geographically SUMMARY: In accordance with the constrained area between Puget Sound October 11, 2011: 2 p.m. to 4 p.m., National Environmental Policy Act to the west and Lake Washington to the Shoreline Conference Center, 18560 1st (NEPA), the Federal Transit east, which limits transportation Avenue NE., Shoreline, WA 98155. Administration and the Central Puget options. This dense urban area Invitations to the interagency scoping Sound Regional Transit Authority comprises one of the region’s most meeting have been sent to appropriate (Sound Transit) intend to prepare an productive markets for transit. Federal, tribal, state, and local Environmental Impact Statement (EIS) governmental units. The Regional Transit System and the for Sound Transit’s proposed extension All public meeting locations are North Corridor of the Central Link Light Rail system accessible to persons with disabilities from Seattle in King County to the city who may also request materials be Sound Move, Sound Transit’s first of Lynnwood in Snohomish County, prepared and supplied in alternate phase of regional transit investments for Washington. The EIS will also be formats by calling Roger Iwata, (206) urbanized Pierce, King and Snohomish prepared in accordance with 689–4904 at least 48 hours in advance counties, was approved and funded by Washington’s State Environmental of the meeting for Sound Transit to voters in 1996. The Sound Move Policy Act (SEPA). This Notice of Intent make necessary arrangement. Persons program included light rail, commuter initiates scoping for the EIS, invites who are deaf or hard of hearing may call rail and regional express bus interested parties to participate in the (888) 713–6030 TTY. infrastructure and service, including the EIS process, provides information about Scoping information as well as other Central Link light rail system between the purpose and need for the proposed general information and a project library the University of Washington, transit project, includes the general set are available on Sound Transit’s Web downtown Seattle, Tukwila and SeaTac. of alternatives being considered for site at: http://www.soundtransit.org/ evaluation in the EIS, and identifies In 2009, Sound Transit began light rail NCTP. operations between downtown Seattle potential environmental effects to be The scoping period extends to considered. With this notice, Sound and SeaTac. Link light rail north from October 31, 2011, or 30 days from the downtown Seattle to the University of Transit and FTA invite public date of this notice, whichever is later. comments on the scope of the EIS, and Washington is now under construction Written scoping comments are and is scheduled to open in 2016. The announce the public scoping meetings requested by October 31, 2011 at the that will be conducted. Alternatives North Link extension from the address below, or they can be submitted University of Washington to Northgate being considered for evaluation in the at the public meetings. EIS include a No-Build alternative and is planned to begin operation in 2021. various build alternatives to develop ADDRESSES: Lauren Swift, North Voters in 2008 authorized funding for light rail in the North Corridor. The Corridor Transit Project, Sound Transit, the extension of the regional light rail light rail alternatives are based on the 401 S. Jackson Street, Seattle, WA system in the North Corridor from most promising alternatives identified 98104–2826, or by e-mail to Northgate to Lynnwood as part of the through an Alternatives Analysis study [email protected]. Sound Transit 2 (ST2) Plan. In addition, completed by the project. Early scoping FOR FURTHER INFORMATION CONTACT: John the ST2 Plan includes an East Link light for the alternatives analysis phase was Witmer, Community Planner, Jackson rail line from downtown Seattle to previously announced in the Federal Federal Building, 915 Second Avenue, Bellevue and Redmond to the east, and Register on September 27, 2010. Results Suite 3142, Seattle, WA 98174; Phone: a South Link extension from SeaTac to of the alternatives analysis are described (206) 220–7964; e-mail: Redondo/Star Lake in southern King below. [email protected]. County.

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Alternatives Analysis and Results capacity transit in the corridor and meet communities, ensures economic vitality the Purpose and Need of the project. and preserves a healthy environment; The North Corridor Transit Project The AA also found that light rail and Alternatives Analysis (AA) Report and located along or within the I–5 corridor 4. Supporting the long-range vision, SEPA Addendum(available at http:// offers the best overall performance goals, and objectives for transit service www.soundtransit.org/NCTP) responds across the broad set of evaluation established by Sound Transit’s Long- to Federal regulations for transit projects criteria, including ridership and Range Plan for high quality regional seeking New Starts funding (Title 49 transportation performance, consistency transit service connecting major activity United States Code [U.S.C.] 5309.) The with regional land use plans, and cost- centers in King, Pierce and Snohomish AA report also serves as an addendum effectiveness. Other light rail alignments counties, including a connection under the Washington State were also evaluated, including an SR 99 between Seattle and Everett. Environmental Policy Act (SEPA) to elevated alternative. While that The project is needed to: Sound Transit’s Supplemental EIS on alternative has the potential to meet the • Meet the rapidly growing needs of the Regional Transit Long-Range Plan project’s purpose and need, it does not the corridor and the region’s future (June 2005). perform as well as the I–5 alternative in residents and workers by increasing The North Corridor AA considered a most respects and would have mobility, access, and transportation Transportation Systems Management substantially higher capital costs, capacity to and from regional growth (TSM) Alternative, Bus Rapid Transit property acquisitions and community and activity centers in the North (BRT) alternatives, and an array of light impacts during construction. At-grade Corridor and the rest of the region, as rail alternatives. The BRT and light rail or mixed-profile light rail along SR 99 called for in the region’s adopted plans, routes included I–5, SR 99, and portions would not effectively address the including the Puget Sound Regional of 15th Avenue NE, with a variety of project’s purpose and need due to Council’s VISION 2040 and station locations and alignments. All inadequate capacity, low reliability and Transportation 2040, as well as related alternatives ran from the Northgate light low travel time benefits, and would be county and city comprehensive plans. rail station currently being developed less effective in supporting regional • Address the problems of increasing through the North Link project at the land use objectives than other and unreliable travel times for transit existing Northgate Transit Center, to the alternatives. users in the North Corridor, who are Lynnwood Transit Center. Elevated and at-grade light rail now dependent on the corridor’s highly Sound Transit evaluated these alignment alternatives along 15th congested roadway and HOV systems. alternatives considering their ability to Avenue NE were evaluated in the AA • Address overcrowding facing meet the project’s purpose and need process but not recommended for current and future North Corridor statement (stated below), and weighing further consideration because they transit riders due to insufficient factors such as ridership and caused more environmental impacts, capacity of the current transit system. • transportation performance, land use, particularly to property and Provide an alternative to community equity, environmental neighborhoods, and had lower automobile trips on I–5 and SR 99, the effects, cost, cost effectiveness and transportation benefits than other two primary highways serving the constructability. alternatives. corridor, which are unreliable and over Sound Transit conducted the AA in The Alternatives Analysis findings are capacity throughout significant portions coordination with the jurisdictions and available on the North Corridor Web site of the day. • Implement the long-range vision for agencies with interests in the corridor, at http://www.soundtransit.org/NCTP . HCT service established by Sound including the cities of Seattle, Summary information about the AA Transit’s Regional Transit Long-Range Shoreline, Mountlake Terrace, Edmonds process and its conclusions is also Plan, with a regional transit investment and Lynnwood; King and Snohomish provided in the Environmental Scoping that supports economic vitality, counties; Metro Transit, Community Information Report available at the same preserves the environment, preserves Transit and the Washington State Web site. communities, and allows for the future Department of Transportation. The Project’s Preliminary Statement of extension of HCT north to Everett. The AA concluded by identifying the Purpose and Need • Ensure long-term regional mobility, most promising alternatives for further The purpose of the North Corridor multimodal connectivity, and analysis. It identified light rail as the Transit Project is to improve regional convenience for North Corridor citizens only mode that fully satisfies the North mass transit service from Seattle north and communities, including travel- Corridor Transit Project’s Purpose and into Snohomish County by: disadvantaged residents and low Need related to transportation 1. Providing reliable, rapid, and income and minority populations. effectiveness and the corridor’s efficient two-way, peak and off-peak • Provide the transit infrastructure mobility, access, and capacity needs. transit service of sufficient capacity to needed to support the development of Bus rapid transit alternatives do not meet the existing and projected demand Northgate and Lynnwood as designated meet project purpose and need elements between the communities and activity regional growth centers providing calling for improved capacity, centers located in the North Corridor housing, employment, public services, reliability, ridership, or travel times. and the other urban centers in the and multimodal transportation Transportation Systems Management Central Puget Sound area; connections. (TSM) alternatives also do not meet 2. Providing a mobility alternative to • Help support the environmental project purpose and need for the same travel on congested roadways, and and sustainability goals of the state and reasons. improving connections to the regional region, including state regulations The AA found that light rail must multimodal transportation system; setting goals for reducing annual per operate in an exclusive right of way 3. Supporting North Corridor capita vehicle miles traveled by 2050, in with full separation from other traffic in communities’ and the region’s adopted accordance with RCW 47.01.440, and order to provide the capacity, reliability land use, transportation and economic the reduction of greenhouse gas and travel time savings needed to development vision, which promotes emissions Chapter 70.235 RCW address the growing demand for high the well-being of people and (Limiting Green House Gas Emissions)

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Potential EIS Alternatives Transit Center. This general alignment resources, historic and cultural The results of the AA have led Sound builds on existing park-and-ride and resources, environmental justice, visual Transit and FTA to consider for transit center investments and local and aesthetic qualities, air quality, noise inclusion in the EIS the following range service connections, avoids repeated and vibration, energy use, safety and of alternatives, on which Sound Transit crossings of I–5, and avoids major security, and ecosystems, including and FTA request public and agency reconstruction of I–5 roadways. threatened and endangered species. comments. Variations could include alignments These effects will be evaluated for both at different locations relative to the east the construction period and the long- No-Build Alternative or west sides of I–5 or the I–5 median, term period of operation. Indirect, NEPA requires consideration of a No- different locations for crossing I–5, or secondary and cumulative impacts will Build Alternative. It reflects the existing different combinations of elevated or at- also be evaluated. Through the EIS transportation system plus any grade profiles or station locations and process, measures to avoid, minimize, committed transportation layouts. or mitigate significant adverse impacts improvements. It does not include a Potential SR 99 Light Rail Alternatives will be identified. major investment in the North Corridor. FTA’s regulations implementing A SR 99 light rail elevated alternative NEPA (further described below), as well Light Rail Alternatives would be based on the AA conceptual as provisions enacted through the Safe, The North Corridor light rail alignment, which begins on an elevated Accountable, Flexible, Efficient alternatives would operate light rail structure at the Northgate Link Station, Transportation Equity Act: A Legacy for trains between Northgate and continuing north and then turning west Users (SAFETEA–LU), call for public Lynnwood in two directions, 20 hours over I–5, and then along Northgate Way involvement in the EIS process. Section per day. Trains up to four cars long and North 110th Street to the median of 6002 of SAFETEA–LU requires that this would run every 4 minutes during the SR 99. It would transition from the agency: (1) Extend an invitation to other peak periods and every 10 minutes off- median to the west side of SR 99 at Federal and non-Federal agencies and peak. All of the alternatives would about North 120th Street, then operate Indian tribes that may have an interest provide for a fully exclusive guideway, on elevated structure on the west side in the proposed project to become with no part of the alignment shared of SR 99 to SR 104 where it turns east ‘‘cooperating’’ or ‘‘participating with other vehicles. All of the light rail to reach a Mountlake Terrace Station at agencies,’’ (2) provide an opportunity alternatives would require Sound 236th Street SW., and I–5. This general for involvement by agencies and the Transit to purchase new light rail alignment avoids multiple crossings and public in helping to define the purpose vehicles, and would involve other reconstruction of SR 99, and directly and need for a proposed project, as well transit system and network serves the Shoreline Park-and-Ride. as the range of alternatives for modifications. As part of the larger ST2 From the Mountlake Terrace station it consideration in the impact statement, program to expand the regional light rail would continue north to Lynnwood and (3) establish a plan for coordinating system, the North Corridor Transit similar to the I–5 light rail alternatives. public and agency participation in and Project would also rely upon expanded The five light rail stations assumed in comment on the environmental review regional light rail operations and the AA were located at SR 99 near North process. maintenance facilities, in conjunction 130th Street, North 160th Street, and the This notice of intent constitutes an with ST2 plans for extensions of light Shoreline Park-and-Ride, with invitation to other Federal and non- rail to the east and south. The expansion Mountlake Terrace and Lynnwood Federal agencies and Indian tribes that of Sound Transit’s regional light rail Transit Center stations the same as those may have an interest in the proposed operations and maintenance facilities is assumed for I–5 light rail. At the project to become a participating agency independent of the North Corridor Shoreline Park-and-Ride, a 1,100 stall in the environmental review process. It Transit Project and has a separate parking structure would be developed at is also an invitation for public and environmental review process. the Shoreline Park-and-Ride, adding 500 agency involvement. A draft new spaces, and relocating 200 spaces Coordination Plan for public and agency Potential I–5 Light Rail Alternatives from the Aurora Village Transit Center. involvement is available for review at Potential I–5 light rail alternatives The Aurora Village Transit Center the project Web site. It identifies the would be located generally along I–5 would also be relocated to the Shoreline project’s coordination approach and with new stations proposed at NE., Park-and-Ride to create a consolidated structure, details the major milestones 145th Street, NE., 185th Street, multimodal transit hub. for agency and public involvement, and Mountlake Terrace Transit Center (I–5 at If SR 99 corridor light rail alternatives includes an initial list of interested SW., 236th Street), and the Lynnwood are advanced to the EIS for further agencies and organizations. FTA will Transit Center. Park-and-ride structures study, variations could include comply with all Federal environmental with up to 500 new stalls each would alignments at different locations relative laws, regulations, and executive orders be located at the North 145th Street, to the east or west sides of SR 99 or the applicable to the proposed project North 185th Street, and Lynnwood SR 99 median, or alternate station during the environmental review Transit Center stations. locations and layouts. process to the maximum extent The AA produced a conceptual I–5 practicable. These requirements alignment that Sound Transit is using to Scope of Environmental Analysis include, but are not limited to, the identify other potential I–5 alignment The EIS process explores potentially regulations of the Council on alternatives to be considered further in significant effects of implementing the Environmental Quality implementing the EIS. The general I–5 alignment from proposed action (and alternatives to the NEPA, and FTA’s own NEPA the AA includes at-grade and elevated proposed action) on the physical, regulations (40 CFR parts 1500–1508, light rail sections along the east side of human, and natural environment. Areas and 23 CFR part 771); the air quality I–5 from Northgate to Mountlake of investigation include, but are not conformity regulations of the U.S. Terrace, in the median north of limited to, transportation, land use, Environmental Protection Agency (EPA) Mountlake Terrace before crossing to development potential, land acquisition (40 CFR part 93); the Section 404(b)(1) the west of I–5 to reach the Lynnwood and displacements, park and recreation guidelines of EPA (40 CFR part 230); the

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regulations implementing Section 106 of printing), Sound Transit will distribute revisions to the Title VI Circular). The the National Historic Preservation Act only the executive summary of the meetings listed below will provide a (36 CFR part 800); the regulations environmental document together with forum for FTA staff to make oral implementing section 7 of the a Compact Disc of the complete presentations about the two proposed Endangered Species Act (50 CFR part environmental document. A complete Circulars and allow attendees an 402); Section 4(f) of the Dept. of printed set of the environmental opportunity to ask clarifying questions. Transportation Act (23 CFR part 774); document will be available for review at Additionally, the sessions are intended and Executive Orders 12898 on the grantee’s offices and elsewhere; an to encourage interested parties and environmental justice, 11988 on electronic copy of the complete stakeholders to submit their comments floodplain management, and 11990 on environmental document will also be directly to the official docket per the wetlands. available on Sound Transit’s web page. instructions found in the ADDRESSES Scoping Issued on: September 19, 2011. section of this notice. These Information Sessions will take Linda Gehrke, FTA and Sound Transit invite place as follows: Kansas City, MO on comments from interested individuals, Acting Regional Administrator, Region 10. Tuesday, October 18, 2011 from 6–9 organizations, tribes and agencies. [FR Doc. 2011–25050 Filed 9–28–11; 8:45 am] p.m.; Boston, MA on Tuesday, Comments are welcome regarding the BILLING CODE P November 1, 2011 from 6–9 p.m.; preliminary statement of purpose and Detroit, MI on Wednesday, November 9, need; the alternatives to be evaluated in 2011 from 6–9 p.m.; the San Francisco DEPARTMENT OF TRANSPORTATION the EIS; and any significant Bay Area on Monday, November 14, environmental issues related to the Federal Transit Administration 2011 from 6–9 p.m.; and Atlanta, GA on alternatives. Suggested reasonable Thursday, November 17, 2011 from 6– alternatives that meet the project [Docket FTA–2011–0055] 9 p.m.. All locations will be ADA- and purpose and need will be seriously transit-accessible. considered. Environmental Justice; Proposed For details about the exact location of To assist the public during scoping, Circular each Information Session (i.e., site name Sound Transit has prepared an AGENCY: Federal Transit Administration and address), please visit http:// Environmental Scoping Information www.fta.dot.gov/ Report describing the project, its (FTA), DOT. ACTION: Notice of availability of FTAInformationSessions. planning history, the potential In consideration of the comfort and alternatives and station locations, the proposed circular and request for comments. safety of all attendees and the maximum potential impact areas to be evaluated, seating capacity of meeting rooms, FTA summary of results from the Alternative SUMMARY: The Federal Transit requests RSVPs for the Information Analysis (AA), and the preliminary EIS Sessions. To RSVP, please visit http:// schedule. You may request a copy of it Administration (FTA) has placed in the docket and on its Web site, proposed www.FTAInformationSessions.com. At from Roger Iwata, Sound Transit, 401 S. the same Web link, persons with Jackson Street, Seattle, WA 98104–2826, guidance in the form of a Circular on incorporating environmental justice disabilities may request a reasonable Telephone: (206) 689–4904, or e-mail: accommodation. [email protected]. It is also principles into plans, projects, and available at http:// activities that receive funding from ADDRESSES: You may submit comments www.soundtransit.org/NCTP. FTA. This proposed guidance provides to DOT Docket ID Number FTA–2011– Following the close of the comment recommendations to State Departments 0055 by any of the following methods: period, Sound Transit will publish a of Transportation, Metropolitan Federal eRulemaking Portal: Go to summary report documenting the public Planning Organizations, public http://www.regulations.gov and follow and agency comments it has received. In transportation providers, and other the online instructions for submitting late 2011 or early 2012, the Sound recipients of FTA funds on how to fully comments. Transit Board is expected to consider a engage environmental justice Mail: Docket Management Facility: motion confirming the purpose and populations in the public transportation U.S. Department of Transportation, 1200 need for the project, the scope of decisionmaking process; how to New Jersey Avenue, SE., West Building, environmental review, and the determine whether environmental Ground Floor, Room W12–140, alternatives to be considered in the draft justice populations would be subjected Washington, DC 20590–0001. EIS, possibly including identification of to disproportionately high and adverse Hand Delivery or Courier: West a locally-preferred alternative. human health or environmental effects Building Ground Floor, Room W12–140, as a result of a transportation plan, 1200 New Jersey Avenue, SE., between Paperwork Reduction project, or activity; and how to avoid, 9 a.m. and 5 p.m. Eastern time, Monday The Paperwork Reduction Act seeks, minimize, or mitigate these effects. By through Friday, except Federal holidays. in part, to minimize the cost to the this notice, FTA invites public comment Fax: 202–493–2251. taxpayer of the creation, collection, on this proposed Circular. Instructions: You must include the maintenance, use, dissemination, and DATES: Comments must be submitted by agency name (Federal Transit disposition of information. Consistent December 2, 2011. Late-filed comments Administration) and Docket number with this goal and with principles of will be considered to the extent (FTA–2011–0055) for this notice at the economy and efficiency in government, practicable. beginning of your comments. You it is FTA policy to limit insofar as Public Meetings: FTA and PolicyLink should submit two copies of your possible distribution of complete will co-sponsor a series of Information comments if you submit them by mail. printed sets of environmental Sessions regarding FTA’s proposed If you wish to receive confirmation that documents. Accordingly, unless a Environmental Justice Circular and FTA received your comments, you must specific request for a complete printed proposed revisions to the Title VI include a self-addressed stamped set of environmental documents is Circular (see docket FTA–2011–0054 for postcard. Note that all comments received (preferably in advance of more information on the proposed received will be posted without change

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to http://www.regulations.gov including Department and its modal Services Help Desk, at (202) 366–4865. any personal information provided and administrations (including FTA) will FTA seeks comment on the proposed will be available to Internet users. You use to incorporate EJ principles into Circular. may review DOT’s complete Privacy Act programs, policies and activities; the II. Chapter-by-Chapter Analysis Statement published in the Federal DOT Order does not provide guidance Register on April 11, 2000 (65 FR for FTA grantees on what is expected A. Chapter I—Environmental Justice 19477). Docket: For access to the docket regarding integrating EJ principles into and Public Transportation to read background documents and the public transportation comments received, go to http:// decisionmaking process. FTA has not Chapter I of the proposed Circular is www.regulations.gov at any time or to previously published separate and an introductory chapter. It provides a the U.S. Department of Transportation, distinct guidance for its grantees, but brief background of the Executive Order 1200 New Jersey Ave., SE., Docket instead has included environmental and describes the purpose of the Operations, M–30, West Building justice concepts in its Title VI Circular Circular. Importantly, this chapter also Ground Floor, Room W12–140, (Circular 4702.1A). states what this Circular is not—the Washington, DC 20590 between 9 a.m. Several instances of Title VI and EJ Circular does not contain any new and 5 p.m., Monday through Friday, issues raised by FTA grantees led FTA requirements, policies or directions. except Federal holidays. to initiate a comprehensive management This chapter contains the principles of review of the agency’s core guidance to environmental justice as derived from FOR FURTHER INFORMATION CONTACT: For grantees in these and other areas of civil the U.S. DOT’s Order on environmental program questions, Amber Ontiveros, rights responsibilities for public justice, and describes broadly when an Office of Civil Rights, Federal Transit transportation. Based on that review, EJ analysis will be conducted and the Administration, 1200 New Jersey Ave., FTA determined a need to clarify and elements of that analysis. Some terms SE., Room E54–422, Washington, DC distinguish what grantees should do to necessary to explain the EJ analysis are 20590, phone: (202) 366–4018, fax: (202) comply with Title VI regulations; and, defined; for ease of reference, FTA has 366–3809, or e-mail, separately, what grantees should do to defined ‘‘minority populations and/or [email protected]. For legal facilitate FTA’s implementation of low-income populations’’ as ‘‘EJ questions, Bonnie Graves, Office of Executive Order 12898. populations.’’ The chapter ends with a Chief Counsel, same address, room E56– Therefore, FTA is proposing a new summary of what will be discussed in 306, phone: (202) 366–4011, or e-mail, Circular 4703.1, ‘‘Environmental Justice subsequent chapters. [email protected]. Policy Guidance for Federal Transit SUPPLEMENTARY INFORMATION: Administration Recipients,’’ in order to B. Chapter II—Tools and Techniques for Conducting an Environmental Justice Table of Contents provide grantees with a distinct framework to assist them as they Analysis I. Introduction integrate principles of environmental II. Chapter-by-Chapter Analysis This chapter is designed to provide justice into their public transportation tools to assist grantees as they conduct A. Chapter I—Environmental Justice and decisionmaking processes, from Public Transportation environmental justice analyses of their B. Chapter II—Tools and Techniques for planning through project development, plans, programs, projects and activities. Conducting an Environmental Justice operation and maintenance. The The chapter begins with an overview of Analysis Circular does not contain any new a proposed framework for conducting an C. Chapter III—Achieving Meaningful requirements, policies or directives. In EJ analysis. As described in the Public Engagement With Environmental addition to the EJ Circular, FTA has also framework, there are three steps for Justice Populations published, in this issue of the Federal conducting an EJ analysis: (1) Determine D. Chapter IV—Integrating Principles of Register, a notice of availability and whether there are any EJ populations Environmental Justice in Transportation request for comment for proposed potentially impacted by the activity; (2) Planning and Service Delivery revisions to FTA’s Title VI Circular if one or more EJ populations are E. Chapter V—Incorporating (Docket number FTA–2011–0054). The Environmental Justice Principles Into the present, consider the potential effects of Title VI Circular removes most NEPA Process the activity on the EJ populations; and references to environmental justice in F. Chapter VI—Understanding the (3) determine if any disproportionately order to clarify the statutory and Differences and Similarities Between high and adverse human health and regulatory requirements for compliance Title VI and Environmental Justice environmental effects can be avoided, G. Appendix with Title VI. FTA expects that the minimized or mitigated. III. Conclusion additional clarification provided by both documents will provide grantees After describing the basic framework, I. Introduction the guidance they need to properly the chapter then discusses in more Executive Order 12898, ‘‘Federal incorporate both Title VI and detail some of the elements of the Actions to Address Environmental environmental justice into their public analysis. First are thresholds: when is Justice in Minority Populations and transportation decisionmaking. FTA an EJ population present? The Council Low-Income Populations,’’ was signed encourages commenters to review both on Environmental Quality (CEQ) issued by President Clinton on February 11, notices and provide comments on both guidance to Federal agencies on 1994. Subsequent to issuance of the documents. environmental justice under Executive Order, the U.S. Department of This notice provides a summary of the environmental laws (‘‘Environmental Transportation (DOT) issued an Order proposed Circular. The Circular itself is Justice, Guidance under the National for implementing the Executive Order not included in this notice; an Environmental Policy Act,’’ Dec. 10, on environmental justice (EJ). The DOT electronic version may be found on 1997) that suggested thresholds for Order (Order 5610.2, ‘‘Order to Address FTA’s Web site, at http:// minority populations; FTA proposes Environmental Justice in Minority www.fta.dot.gov, and in the docket at adapting this guidance to apply to both Populations and Low-Income http://www.regulations.gov. Paper minority populations and low-income Populations,’’ 62 FR 18377, Apr. 15, copies of the Circular may be obtained populations for consistency, and to 1997) describes the process the by contacting FTA’s Administrative apply these thresholds to all EJ analyses.

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FTA seeks comment on the involvement of EJ populations include officials maintain a regular and open recommended thresholds. direct mail campaigns, community-led dialogue with EJ populations regarding Next is proposed guidance on events, partnerships with community- the effectiveness of the plan, and to preparing a residential demographic based organizations and leaders, citizen identify trends in public transportation profile. This section provides advisory committees, and public for future plans. information on data sources, including engagement teams. This chapter E. Chapter V—Incorporating how grantees can use available data. recognizes that public engagement is not Environmental Justice Principles Into This section also discusses how to a one-size-fits-all approach. A grantee the NEPA Process determine the geographic area for should scale its public engagement analysis, which will depend on the efforts to the impacts of the plan, project This chapter provides grantees with a planning area or the impact area of the or activity, as well as to the resources road map for incorporating project. The next section, benefits and available to the grantee; most environmental justice analysis into the burdens analysis, describes how an importantly, the grantee will determine, National Environmental Policy Act analysis will need to be scaled based on a number of factors, which (NEPA) process. Federal agencies are depending on the level of planning (e.g., public engagement strategies will likely required to consider the effects of Statewide, regional, corridor-level, etc.) be effective at engaging the local EJ Federally-funded projects on the or the size of the project or activity. This populations. FTA seeks comment on environment; if FTA determines there is section provides suggestions on the whether there are additional non- a disproportionately high and adverse types of metrics to use when evaluating traditional outreach strategies that human health or environmental effect the benefits and burdens of public should be included in this guidance. on an EJ population, the EJ analysis will transportation projects and activities. be part of the NEPA document. This This section also clarifies that when a D. Chapter IV—Integrating Principles of chapter describes how a grantee can plan or project will serve a Environmental Justice in Transportation incorporate EJ principles into its predominantly minority area, it is still Planning and Service Delivery analysis of the environmental impacts of necessary to analyze the effects on low- This chapter proposes guidance on a proposed project by defining the income populations, since minority incorporating EJ principles into project impact area, identifying populations and low-income Statewide, metropolitan and local alternatives, identifying adverse populations do not necessarily overlap. planning processes. Many of the environmental effects, identifying Finally, this chapter proposes a list of strategies described in this chapter project benefits, and identifying factors to consider when determining apply not only to the required Statewide mitigation measures and enhancements. whether disproportionately high and and metropolitan planning processes, Finally, this chapter provides guidance adverse human health or environmental but also to planning activities related to projects that qualify as impacts exist. undertaken by transit providers and categorical exclusions and information other local entities with public related to NEPA-specific public C. Chapter III—Achieving Meaningful transportation planning and service- engagement strategies. Public Engagement With Environmental delivery responsibilities. This chapter Justice Populations builds on the residential demographic F. Chapter VI—Understanding the Chapter III proposes recommended profile described in Chapter II and Differences and Similarities Between strategies and techniques for ensuring describes specific planning tools for Title VI and Environmental Justice that EJ populations are not just at the developing these profiles. The chapter As stated previously, FTA has public transportation decisionmaking briefly outlines the Statewide and observed that the public, grantees, and table, but have a voice in the metropolitan planning public FTA staff have sometimes considered decisionmaking process. This chapter engagement requirements in the joint environmental justice and Title VI to be first suggests identifying the members of FHWA/FTA planning regulations, and interchangeable—they are not. This a community, as doing so will assist proposes strategies to achieve public chapter outlines the source of grantees in developing successful participation in planning activities. environmental justice—Executive Order communications and outreach Each plan, whether Statewide, 12898—and the source of Title VI—the strategies. Building relationships with metropolitan, or local, should Civil Rights Act of 1964—and then community-based organizations, encompass the goals and visions for describes, in table format, the key environmental justice networks, and future transportation for a region or differences between the two. This others can assist grantees in developing area. This chapter explains why it is chapter cautions recipients that an EJ these strategies. Traditional public important to develop those goals and analysis will not satisfy Title VI outreach typically involves public visions with input from EJ populations. requirements, and a Title VI analysis hearings required by Federal, State or Since public transportation providers likely will not satisfy EJ, since Title VI local law for certain transportation and other local entities often engage in does not include low-income decisions. This chapter proposes some level of planning, this chapter populations. Finally, this chapter recommendations on making this addresses those planning activities, includes an example of a project and process more inclusive and user- such as planning for service reductions describes the type of analyses required friendly, including consideration of or restructuring. This chapter provides for that project. location, timing, format and some sample questions to guide the accessibility. discussion with the public to inform G. Appendix—Definitions, Authorities This chapter also describes non- planning officials on how well current and References traditional outreach strategies that may operation, management, and The appendix includes a result in greater participation by EJ maintenance of facilities and services comprehensive list of definitions, most populations. Some of these proposed serve the needs of communities, with of which are in either the DOT Order on strategies include informal group particular attention to the parity environmental justice or the FHWA/ meetings, traditional and non- between EJ and non-EJ populations. FTA planning regulations, and included traditional media, as well as digital This chapter recommends that public in this document for ease of reference. media. Additional strategies to increase transportation providers and planning A list of authorities from which this

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guidance is derived is also included. Circular (see docket FTA–2011–0055 for that FTA received your comments, This list is not meant to be exhaustive, more information on the proposed include a self-addressed stamped but does include the authorities relevant Environmental Justice Circular). The postcard. Note that all comments to the consideration of EJ principles in meetings listed below will provide a received will be posted without change the transportation context. Last is a list forum for FTA staff to make oral to http://www.regulations.gov including of references, including Federal presentations about the two proposed any personal information provided and Register notice and other citations as Circulars and allow attendees an will be available to Internet users. You appropriate to enable readers to view opportunity to ask clarifying questions. may review DOT’s complete Privacy Act the source documents. Additionally, the sessions are intended Statement published in the Federal to encourage interested parties and Register on April 11, 2000 (65 FR III. Conclusion stakeholders to submit their comments 19477). Docket: For access to the docket Included in the proposed Circular in directly to the official docket per the to read background documents and a few places are examples, such as the instructions found in the ADDRESSES comments received, go to http://www. example in Chapter II regarding defining section of this notice. regulations.gov at any time or to the the area of analysis for a plan or project, These Information Sessions will take U.S. Department of Transportation, 1200 and the example in Chapter VI regarding place as follows: Kansas City, MO on New Jersey Ave., SE., Docket differences between an EJ analysis and Tuesday, October 18, 2011 from 6–9 Operations, M–30, West Building a Title VI analysis. FTA seeks comment p.m.; Boston, MA on Tuesday, Ground Floor, Room W12–140, on whether more examples would be November 1, 2011 from 6–9 p.m.; Washington, DC 20590 between 9 a.m. helpful, and if so, what types of Detroit, MI on Wednesday, November 9, and 5 p.m., Monday through Friday, examples would provide the most 2011 from 6–9 p.m.; the San Francisco except Federal holidays. clarity for grantees. Bay Area on Monday, November 14, FOR FURTHER INFORMATION CONTACT: For Issued in Washington, DC this 26th day of 2011 from 6–9 p.m.; and Atlanta, GA on program questions, Amber Ontiveros, September 2011. Thursday, November 17, 2011 from 6– Office of Civil Rights, Federal Transit Peter M. Rogoff, 9 p.m. All locations will be ADA- and Administration, 1200 New Jersey Ave., Administrator. transit-accessible. SE., Room E54–422, Washington, DC For details about the exact location of [FR Doc. 2011–25123 Filed 9–28–11; 8:45 am] 20590, phone: (202) 366–4018, fax: (202) each Information Session (i.e., site name BILLING CODE 4910–57–P 366–3809, or e-mail, Amber.Ontiveros@ and address), please visit http://www. dot.gov. For legal questions, Bonnie fta.dot.gov/FTAInformationSessions. Graves, Office of Chief Counsel, same DEPARTMENT OF TRANSPORTATION In consideration of the comfort and address, room E56–306, phone: (202) safety of all attendees and the maximum 366–4011, or e-mail, Bonnie.Graves@ Federal Transit Administration seating capacity of meeting rooms, FTA dot.gov. requests RSVPs for the Information SUPPLEMENTARY INFORMATION: [Docket No. FTA–2011–0054] Sessions. To RSVP, please visit http:// www.FTAInformationSessions.com. At Table of Contents Title VI; Proposed Circular the same Web link, persons with I. Overview AGENCY: Federal Transit Administration disabilities may request a reasonable II. Chapter-by-Chapter Analysis (FTA), DOT. accommodation. A. Chapter I—Introduction and Background ACTION: ADDRESSES Notice of availability of : Please submit your B. Chapter II—Program Overview proposed Circular and request for comments by only one of the following C. Chapter III—General Requirements and comments. methods, identifying your submission Guidelines by docket number FTA–2011–0054. All D. Chapter IV—Requirements and SUMMARY: The Federal Transit electronic submissions must be made to Guidelines for Transit Providers Administration (FTA) has placed in the the U.S. Government electronic site at E. Chapter V—Requirements for States docket and on its Web site, proposed http://www.regulations.gov. F. Chapter VI—Requirements for guidance in the form of a Circular to (1) Federal eRulemaking Portal: Go to Metropolitan Planning Organizations assist grantees in complying with Title http://www.regulations.gov and follow G. Chapter VII—Effectuating Compliance VI of the Civil Rights Act of 1964. The With DOT Title VI Regulations the online instructions for submitting H. Chapter VIII—Compliance Reviews purpose of this Circular is to provide comments. recipients of FTA financial assistance I. Chapter IX—Complaints (2) Mail: Docket Management Facility: J. Appendices with instructions and guidance U.S. Department of Transportation, 1200 necessary to carry out the U.S. New Jersey Avenue, SE., West Building, I. Overview Department of Transportation’s Title VI Ground Floor, Room W12–140, FTA is updating its Title VI Circular, regulations (49 CFR part 21). FTA is Washington, DC 20590–0001. last revised in 2007, to clarify what updating its Title VI Circular to clarify (3) Hand Delivery or Courier: West recipients must do to comply with the requirements for compliance. By this Building Ground Floor, Room W12–140, U.S. Department of Transportation notice, FTA invites public comment on 1200 New Jersey Avenue, SE, between (DOT) Title VI regulations. This notice the proposed Circular. 9 a.m. and 5 p.m. Eastern time, Monday provides a summary of proposed DATES: Comments must be submitted by through Friday, except Federal holidays. changes to FTA Circular 4702.1A, ‘‘Title December 2, 2011. Late-filed comments (4) Fax: 202–493–2251. VI and Title VI–Dependent Guidelines will be considered to the extent Instructions: You must include the for FTA Recipients.’’ The final Circular, practicable. agency name (Federal Transit when adopted, will supersede the Public Meetings: FTA and PolicyLink Administration) and Docket number existing Circular. will co-sponsor a series of Information (FTA–2011–0054) for this notice at the The proposed Circular would Sessions regarding FTA’s proposed beginning of your comments. Submit incorporate lessons learned from revisions to the Title VI Circular and two copies of your comments if you triennial reviews, discretionary Title VI proposed Environmental Justice submit them by mail. For confirmation compliance reviews, and a

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comprehensive review of every Title VI framework to assist them as they II. Chapter-by-Chapter Analysis Program submitted to FTA. In these integrate principles of environmental A. Chapter I—Introduction and reviews, FTA found some problems, justice into their public transportation Background several of them related to ambiguous decisionmaking processes, from language in the existing Circular. The planning through project development, Chapter I of the existing Circular is proposed Circular reorganizes, clarifies, operation and maintenance. FTA entitled, ‘‘How to Use This Circular.’’ and provides examples of the expects the additional clarification The content of this chapter has been information that must be included in a provided by both Circulars will provide eliminated or moved to other chapters Title VI Program. grantees the guidance and direction they as appropriate. Chapter I of the The existing Title VI Circular contains need to properly incorporate both Title proposed Circular is an introductory many references to environmental VI and environmental justice into their chapter and covers general information justice (EJ). Executive Order 12898, public transportation decisionmaking. about FTA and how to contact us, ‘‘Federal Actions to Address FTA encourages commenters to review briefly reviews the authorizing Environmental Justice in Minority both notices and provide comments on legislation for FTA programs generally, Populations and Low-Income both documents. provides information about FTA’s Populations,’’ was signed by President This notice provides a summary of the posting of grant opportunities on Clinton on February 11, 1994. proposed changes to the Title VI Grants.gov, includes definitions Subsequent to issuance of the Executive Circular. The proposed Circular itself is applicable to Title VI, and provides a Order, DOT issued an Order for not included in this notice; instead, an brief history of environmental justice implementing the Executive Order on electronic version may be found on and Title VI. Where applicable, we have environmental justice. The DOT Order FTA’s Web site, at http:// used the same definitions found in (Order 5610.2, ‘‘Order to Address www.fta.dot.gov, and in the docket, at rulemakings, other Circulars, and DOT Environmental Justice in Minority http://www.regulations.gov. Paper Orders to ensure consistency. Populations and Low-Income copies of the proposed Circular may be Importantly, we have restored the term Populations,’’ 62 FR 18377, Apr. 15, obtained by contacting FTA’s ‘‘primary recipient,’’ which is found in 1977) describes the process the Administrative Services Help Desk, at the DOT Title VI regulations and FTA’s Department and its modal (202) 366–4865. FTA seeks comment on 1988 circular but is not in the existing administrations (including FTA) will the proposed Circular. Title VI Circular. A primary recipient is use to incorporate EJ principles into Readers familiar with the existing a recipient that extends Federal programs, policies and activities; the FTA Circular 4702.1A will notice a financial assistance to a subrecipient. DOT Order does not provide guidance number of changes to the proposed We also propose using the term for FTA grantees on what is expected Circular. For example, we have changed ‘‘recipient’’ to mean any recipient, regarding integrating EJ principles into the name of the Circular to ‘‘Title VI whether a direct recipient, a designated the public transportation Requirements and Guidelines for recipient, a primary recipient, or a decisionmaking process. FTA has not Federal Transit Administration subrecipient. We have also included a previously published separate and Recipients,’’ removing the ‘‘Title VI– definition of ‘‘provider of public distinct EJ guidance for its grantees, but Dependent’’ in the existing title as it transportation’’ or ‘‘transit provider,’’ to instead has included environmental refers to the EJ provisions in the existing mean any entity that provides public justice concepts in its Title VI Circular Circular, and adding ‘‘requirements’’ to transportation, whether a State, local or (Circular 4702.1A). reflect inclusion of required actions to regional entity, and inclusive of public Several instances of Title VI and EJ ensure compliance with DOT Title VI and private entities. This term is used issues raised by FTA grantees led FTA regulations. We propose retaining exclusively in Chapter IV. We have to initiate a comprehensive management ‘‘guidance’’ in the title as the Circular restored the definition of ‘‘minority review of the agency’s core guidance to includes actions that FTA encourages or transit route,’’ a term removed during grantees in these and other areas of civil recommends. In addition, we propose the last Circular revision. We have rights responsibilities for public changing the format to make this added some flexibility to the definition, transportation. Based on that review, Circular consistent with the style of allowing recipients to base the FTA determined a need to clarify and other Circulars FTA has recently determination on route mileage, distinguish what grantees should do to updated. At the same time, we have demographics, or ridership. Finally, comply with Title VI regulations; and, tried to maintain some consistency with there is a section describing separately, what grantees should do to the previous document; for example, environmental justice that references facilitate FTA’s implementation of most of the chapters still cover the same the proposed EJ Circular that FTA is Executive Order 12898. or similar subject matter. We discuss developing concurrently with the Therefore, FTA is proposing to substantive changes in content in the proposed changes to the Title VI remove most references to chapter-by-chapter analysis. Circular. This section provides a environmental justice from the Title VI One important change made permanent cross-reference to that Circular in order to clarify the statutory throughout the proposed Circular is that guidance. FTA seeks comment on the and regulatory requirements for we have, where applicable, included the content of Chapter I. compliance with Title VI. In addition to text of the DOT Title VI regulation that the proposed revised Circular, FTA has applies to the requirement. The existing B. Chapter II—Program Overview also published, in this issue of the Circular often cites the regulation, but We propose amending some of the Federal Register, a notice of availability does not quote or summarize the text, content of this chapter. As previously and request for comments for a new which leaves readers wondering what stated, definitions have been moved to proposed EJ Circular 4703.1, the rule really says. We believe it will Chapter I. This chapter starts with ‘‘Environmental Justice Policy Guidance be helpful for recipients to see the text program objectives and is followed by for Federal Transit Administration or a summary of the regulation so they statutory and regulatory authority, as Recipients’’ (Docket number FTA–2011– understand the nexus between the well as additional authority for the 0055). The EJ Circular is designed to regulation and the requirements in the policies, requirements and provide grantees with a distinct Circular. recommendations stated in the Circular.

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Consistent with our goal of separating regulations. We have also removed thirty days in advance of expiration of Title VI and EJ and developing the EJ references to environmental justice. the previously approved Title VI Circular, we propose removing both the We propose keeping much of the Program. This section also notes how reference to DOT’s Order on content of the existing Chapter IV in this the status of a recipient’s Title VI Environmental Justice and the objective chapter, but it has been reformatted to Program will be noted in TEAM. The related to addressing EJ principles from provide more clarity. Proposed Chapters four status determinations are this chapter. We propose moving the III, IV, V and VI, which describe the ‘‘approval,’’ ‘‘conditional approval,’’ ‘‘determination of deficiencies’’ specific requirements for different types ‘‘pending’’ and ‘‘expired.’’ We propose subsection in the Reporting of recipients’ Title VI Programs, follow removing the ‘‘eliminating redundancy’’ Requirements section and the the same format. They start with an subsection in the existing Circular, as Determinations section to Chapter VIII, introduction and some general we have determined that recipients Compliance Reviews. information. Following that is the must include all required information in In the existing Reporting requirement to prepare and submit a each Title VI Program submission. Requirements section, as well as in Title VI Program. The section describing We propose continuing the reporting other places throughout the existing the Title VI Program, in each chapter, requirement exemption for the Circular, there is a statement that cites the regulation and includes the University Transportation Center recipients are required to submit Title regulatory text or a summary of the Program, National Research and VI Programs every three years, or every regulatory text. It provides information Technology Program, Over the Road Bus four years in the case of metropolitan on Board or other governing entity Accessibility Program and Public planning organizations (MPOs) that are approval of the Title VI Program. It then Transportation on Indian Reservations direct recipients of FTA funds. We lists the elements required in the Title program. We have also included a new propose amending the reporting VI Program for that type of recipient. provision that FTA may exempt a requirement so that all recipients are The sections following the Title VI recipient, upon receipt of a request for required to submit a Title VI Program Program submission requirements waiver submitted to the Director of the every three years. We propose amending describe in more detail what FTA Office for Civil Rights, from the the Reporting Requirements section expects, and provide direction to enable requirement to submit a Title VI further by including a requirement that recipients to comply. Program, or from some elements of the a recipient’s board of directors or For example, Chapter III provides the Title VI Program. There may be unique appropriate governing entity approve list of elements that must be in every situations that justify the application of the Title VI Program before the recipient recipient’s (and subrecipient’s) Title VI this exemption. The absence of the submits it to FTA. We anticipate such Program. The first item on the list is ‘‘a requirement to submit a Title VI a requirement will greatly improve the copy of the recipient’s Title VI notice to Program does not obviate the underlying quality of Title VI Programs that FTA the public that indicates the recipient obligations to comply with Title VI. receives. Further, we expect this complies with Title VI, and informs We propose including more requirement will add clarity and members of the public of the protections information in several of the sections transparency to implementation of the against discrimination afforded to them describing existing Title VI Program Title VI Program at the local level. by Title VI. Include a list of locations elements in order to clarify the Recipients will be required to submit, where the notice is posted.’’ The next requirements. For example, we provide with the Title VI Program, a copy of the section in that chapter is, significantly more information in the Board resolution, meeting minutes, or ‘‘Requirements to Notify Beneficiaries of public participation section, while still similar documentation as evidence that Protection under Title VI.’’ This section allowing wide latitude for recipients to the board of directors or appropriate cites the regulation and provides determine how, when, and how often to governing entity has approved the information regarding what must be engage in public participation activities, program. FTA seeks comment on the included in a Title VI notice. This and which specific measures are most content of Chapter II. section also clarifies the existing appropriate. We have referenced the requirement by describing how public participation requirements of 49 C. Chapter III—General Requirements documents should be disseminated, U.S.C. 5307(c) and 5307(d)(1)(I) as well and Guidelines when documents must be translated, as the joint FTA/FHWA (Federal Chapter III in the existing Circular is and notes that a subrecipient may adopt Highway Administration) planning ‘‘Requirements for Applicants.’’ We the primary recipient’s Title VI notice. regulations at 23 CFR part 450. This propose eliminating the one-page Thus, the detailed description for each section also cross-references the chapter dedicated to applicants, and required element is presented in a proposed EJ Circular being developed consolidating this information into what format that clarifies the existing concurrently with the proposed is the existing Chapter IV. Proposed requirements. In addition, we have revisions to the Title VI Circular. Chapter III thus has the same name as provided samples of required The section that addresses the the existing Chapter IV: ‘‘General documents in the Appendices. existing requirement for a Language Requirements and Guidelines.’’ The Since the proposed Chapter III applies Implementation Plan for Limited proposed Chapter III includes content to all recipients, we include in this English Proficient (LEP) persons now from the existing Chapters III and IV. chapter information on how to upload a contains a summary of the DOT LEP We added the regulatory reference for Title VI Program to FTA’s guidance. Specifically, we propose the requirement to provide Title VI Transportation Electronic Award including a description of the four factor assurances, but otherwise the text Management (TEAM) system. The Title analysis, information on how to develop remains substantially the same as the VI Program must be uploaded to TEAM a Language Implementation Plan, and a similar section in existing Chapter IV. no fewer than thirty calendar days prior summary of the ‘‘safe harbor’’ provision. The information for applicants has not to the date of expiration of the We propose restoring the requirement, changed, except that we added one previously approved Title VI Program. found in the regulations but not the sentence at the end related to first-time This is a new requirement, but FTA has existing Circular, that a recipient may applicants. This information is required previously asked for voluntary not, on the grounds of race, color, or under U.S. Department of Justice (DOJ) submission of revised Title VI Programs national origin, ‘‘deny a person the

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opportunity to participate as a member D. Chapter IV—Requirements and providers who previously were not of a planning, advisory, or similar body Guidelines for Transit Providers required to collect and report which is an integral part of the Proposed Chapter IV covers much of demographic data, conduct service and program.’’ As part of the Title VI the information that is in the existing fare equity analyses, and monitor their Program, for non-elected transit Chapter V. Consistent with our desire to transit service, to begin to do so. It will planning, advisory, or similar have the chapters follow the same also allow some small transit providers decisionmaking body, recipients shall format, this chapter starts with an in large urbanized areas who were provide a table depicting the racial introduction, includes a description as collecting and reporting data, breakdown of the membership of those to which entities it applies, and then conducting service and fare equity bodies, and a description of the efforts describes the requirement to prepare analyses, and monitoring their transit made to encourage participation of and submit a Title VI Program, followed service to stop doing so once the revised minorities on such decisionmaking by specific information related to each Circular takes effect. We selected $3 bodies. of the elements contained in the Title VI million in discretionary transit capital grants as the second threshold for We propose moving the topics, Program. comprehensive reporting as that would ‘‘Providing Assistance to Subrecipients’’ In the existing Circular, Chapter V be a significant amount of funds for a and ‘‘Monitoring Subrecipients,’’ found applies to ‘‘recipients that provide transit provider with an annual in the Requirements for States chapter service to geographic areas with a operating budget of less than $10 of the existing Circular, to this chapter, population of 200,000 people or greater million, and would justify the increased as these are existing requirements that under 49 U.S.C. 5307.’’ This sentence reporting requirement. Finally, we are applicable to all recipients that pass has created some confusion as to propose to allow the Director of the funds through to subrecipients, not just whether recipients in areas with Office of Civil Rights, in consultation States. The requirement to collect Title populations over 200,000 but that do with the FTA Administrator, to require VI Programs from subrecipients is a new not receive funds under 49 U.S.C. 5307 are required to comply with this a recipient to submit a more requirement for transit providers that comprehensive Title VI Program, as pass funds through to subrecipients; but chapter. In order to eliminate this confusion, we propose a new threshold: when a small transit provider has a one- we would note that anytime a recipient time or ongoing issue, likely related to passes funds through to a subrecipient, Any provider of public transportation, whether a State, regional or local entity, a complaint or otherwise compliance- the entity passing funds through is related. responsible for ensuring their and inclusive of public and private subrecipients are complying with all entities, that has an annual operating We propose that the annual operating Federal requirements, not just Title VI. budget of less than $10 million per year budget is inclusive of all funds, whether Collecting and reviewing a in three of the last five fiscal years as Federal, State, local or other, and will be subrecipient’s Title VI Program will reported to the National Transit based on NTD data, recognizing that assist the primary recipient/transit Database (NTD) will only be required to NTD data has an approximate two-year provider in ensuring the subrecipient is set system-wide standards and policies. lag in producing final data. Therefore, in compliance. The language in these Providers of public transportation (also we propose ‘‘looking back’’ to fiscal sections is substantially similar to the referred to as transit providers) with an years 2006–2010 to determine whether language in the existing Circular. annual operating budget of $10 million a transit provider meets the $10 million or more in three of the last five or more annual operating budget in Finally, we have removed the section, consecutive years as reported to the three of the last five fiscal years as of the ‘‘Guidance on Conducting an Analysis NTD; transit providers with an annual effective date of the Circular. In the of Construction Projects’’ and inserted operating budget of less than $10 Federal Register notice announcing the in its place, ‘‘Determination of Site or million but that receive $3 million or availability of the final Circular, we Location of Facilities.’’ The language in more in New Starts, Small Starts or intend to provide a list of recipients that the existing Circular addresses other discretionary capital funds; and do not meet the current threshold of environmental justice concepts as transit providers that have been placed providing service in large urbanized incorporated into National in this category at the discretion of the areas but that will meet this new Environmental Policy Act (NEPA) Director of the Office of Civil Rights in threshold. FTA proposes that transit documentation, and we have moved this consultation with the FTA providers who have not been required to analysis to the EJ Circular. We propose Administrator, will be required to set set system-wide standards and policies, revising this section so that it cites the system-wide standards and policies, collect and report data, conduct service DOT Title VI regulation and describes collect and report demographic data, and fare equity analyses, and monitor the requirements related to siting conduct service and fare equity their transit service under the existing facilities. Recipients must complete a analyses, and monitor their transit FTA Circular 4702.1A, would be Title VI analysis during project service. required to conduct service and fare development to determine if the project Approximately 97% of public equity analyses for major changes in will have disparate impacts on the basis transportation passengers ride on transit transportation service or fare changes of race, color, or national origin. If it systems with annual operating budgets between the effective date of the will have such impacts, the recipient of $10 million or more. This threshold Circular and their next Title VI Program may only locate the project in that ensures that small transit providers, submission. In addition, these transit location if there is a substantial whether in a large city or a rural area, providers would be required to update legitimate justification for locating the are not subject to the more their current Title VI Programs to project there, and where there are no comprehensive reporting requirements, include service standards and policies, alternative locations that would have a while larger providers, regardless of demographic and other data, including less adverse impact on members of a geographic location, will be subject to data related to monitoring their service. group protected under Title VI. the comprehensive reporting After the final Circular effective date, FTA seeks comment on the content requirements. The proposed change in FTA will contact transit providers that and format of Chapter III. threshold will cause some transit are subject to these requirements for the

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first time and provide technical recommends that recipients report on A is a level of service methodology; assistance, as needed. FTA will provide these standards and policies, and allows Option B is a quality of service an appropriate amount of time for these recipients to report on other standards methodology; Option C is an analysis of providers to submit the updated and policies. In contrast to the existing customer surveys, and Option D is a program. Beginning in FY 2015, FTA Circular, we propose recipients will be locally developed alternative. We will publish, in its annual required to report on these specific propose removing the options and apportionment notice, new transit standards and policies, rather than having one means of complying with providers that meet the threshold, as selecting different measures on which to the requirement to monitor transit well as transit providers that no longer report. However, in practice, this is not service—a slightly modified Option A as meet the threshold. FTA seeks comment a significant change, since most transit the sole means of compliance, as most on this new threshold, and when it providers report on these standards and transit providers currently choose should take effect. policies, and do not select other Option A and this Option provides We propose that small transit standards or policies on which to report. sufficient information to ensure service providers—those with annual operating The existing Circular allows transit is being provided in a budgets of less than $10 million—will providers to choose among options for nondiscriminatory manner. The one be required to set system-wide demographic data collection, service addition to this method of monitoring is standards and policies, and include monitoring, and service and fare equity an evaluation of policies related to these standards and policies in their analyses. These options were added transit amenities. As in the existing Title VI Programs. This is a new during the last revision of the Circular Circular, transit providers must monitor requirement. We expect that most in 2007, to ‘‘reduce administrative their transit service against the system- transit providers already have standards burdens by giving recipients and wide standards and policies set by the and policies for areas such as vehicle subrecipients greater flexibility to meet transit provider. At a minimum, such load, vehicle assignment, transit requirements through procedures that monitoring will occur every three years amenities, etc., and that reporting them best match their resources needs, and and the transit provider will submit the in the Title VI Program would not be standard practices.’’ (72 FR 18732, results as part of its Title VI Program. burdensome. 18735, Apr. 13, 2007). In reality, Prior to submitting the information to Transit providers with total annual providing options, including the option FTA, we propose that transit providers operating budgets of $10 million or to develop a local alternative, has will be required to brief their board of more or that otherwise meet the created confusion and inconsistency. directors or appropriate governing entity threshold described above will need to Therefore, we propose removing the regarding the results of the monitoring include in their Title VI Programs all of options and providing one method of program, and include a copy of the the following: their system-wide compliance for each of these areas. By board meeting minutes, resolution, or standards and policies; a demographic eliminating options we make it clear to other appropriate documentation analysis of the transit provider’s recipients what is required for demonstrating the board’s consideration passengers; data regarding customer compliance, and we streamline the Title of the monitoring program. demographics and travel patterns; VI Program review process. FTA seeks results of the provider’s monitoring comment on this proposal. The requirement to perform service program; a description of the public The requirement to collect and report and fare equity analyses applies only to engagement process for setting the major demographic data applies only to transit transit providers with an annual service change policy and disparate providers with an annual operating operating budget of $10 million or more impact policy; results of any equity budget of $10 million or more or that or that otherwise meet the threshold analyses conducted since the last Title otherwise meet the threshold as stated stated above. The existing Circular VI Program submission; and a copy of above. The existing Circular allows allows two options for evaluating board meeting minutes or a resolution three different options for collecting and service and fare changes: Option A, demonstrating the board’s consideration reporting demographic data: Option A is which outlines a specific procedure, and awareness of any equity analyses developing demographic and service and Option B, a locally developed completed. profile maps and charts; Option B is alternative. We propose removing the We propose revising the description conducting customer surveys; and option for a locally developed of the existing requirement to set Option C is a locally developed alternative and having one means of system-wide service standards and alternative. We propose eliminating the complying with the requirement to policies. First, as in other areas, we have locally developed alternative and perform service and fare equity included the relevant text of DOT’s Title requiring both options A and B, but analyses. The proposed process for VI regulations to more clearly link the with a simplified and streamlined evaluating service and fare changes is regulation with the requirement in the customer survey data requirement. In more rigorous than what is required in Circular. We propose removing the the existing Circular, transit providers the existing Circular. We propose that ‘‘transit security’’ policy, as a transit are required to collect data on travel each transit provider to which this provider’s security policy may be time, number of transfers, overall cost of section applies will: Describe in its impacted by considerable outside the trip, as well as how people rate the service equity analysis its policy for a factors that are not within the control of quality of service. We propose instead major service change; describe how the the transit provider. We propose that transit providers collect data on public was engaged in the development blending the requirements in one travel patterns, such as trip purpose and of the major service change policy; section that covers both standards and frequency of use. describe the datasets the provider will policies, rather than listing them The requirement to monitor transit use in the service change analysis; separately. The standards and policies service applies only to transit providers prepare maps; analyze the effects of for vehicle load, vehicle headway, on- with an annual operating budget of $10 proposed service changes; and analyze time performance, service availability, million or more or that otherwise meet the effects of proposed fare changes. In transit amenities and vehicle the threshold as stated above. The addition, as in the existing Circular, the assignment remain substantially the existing Circular allows four different transit provider will assess the same. In the existing Circular, FTA options for monitoring service: Option alternatives available for people affected

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by the fare increase or decrease or major While MPOs are required, in the I. Chapter IX—Complaints service change, including reductions or existing Circular, to submit a Title VI The proposed Chapter IX contains increases in service. Finally, the transit Program, the chapter is not clear that the most of the same content that is in the provider will determine if the proposals information listed is supposed to be existing Chapter IX. We propose would have the effect of included in the Title VI Program, along removing the ‘‘letter of resolution’’ in disproportionately excluding or with the requirements for all recipients. Section 4 as it is duplicative of the adversely affecting people on the basis Therefore, we have included the ‘‘letter of finding’’ issued when a of race, color, or national origin, or specific requirements that MPOs shall recipient is found to be noncompliant would have a disproportionately high include in their Title VI Programs. Since with the DOT Title VI regulations. We and adverse effect on minority or low- an MPO may fulfill several roles, also propose removing the appeals income riders. including planning entity, designated process, as it is not required by the Finally, this chapter states when a recipient, direct recipient of FTA funds, regulation and removing it will assist transit provider will be required to and a primary recipient that passes with more efficient administration of perform a fare and service analyses for funds through to subrecipients, we have the Title VI Program. We have added New Starts, Small Starts, and other new clarified the Title VI reporting information relating to when a fixed guideway capital projects: prior to requirements for each of these roles. We complaint will be administratively entering into a Full Funding Grant also propose cross-referencing closed. FTA seeks comment on the Agreement or Project Construction information related to Title VI that FTA Grant Agreement, and updated and FHWA jointly assess and evaluate content of this chapter. immediately prior to start of revenue during the planning certification J. Appendices operations. reviews. Finally, since the MPO may The proposed appendices are FTA seeks comment on the content have subrecipients, we include the same intended as tools to assist recipients in and format of Chapter IV. requirement that applies to States in the their compliance efforts. We propose existing Circular: that the MPO prepare E. Chapter V—Requirements for States adding nearly 40 pages of appendices in and maintain information regarding order to provide more clarity and This chapter addresses requirements how it passes funds through to examples of what should be included in for States that administer FTA subrecipients in a nondiscriminatory a Title VI Program and the type of programs. As in the existing Circular, manner. FTA seeks comment on the analysis that recipients should conduct. States must submit a Title VI Program. content and format of Chapter VI. This chapter clarifies that States are To begin, in Appendix A we propose responsible for including in their Title G. Chapter VII—Effecting Compliance using checklists for the elements VI Program the information required With DOT Title VI Regulations recipients must include in their Title VI from all recipients in Chapter III, and This chapter is Chapter X in the Programs instead of tables. Recipients that States providing public existing Circular. FTA believes it makes can literally ‘‘check the box’’ as they transportation are responsible for the sense from a flow and format point of assemble the elements of their Title VI reporting requirements for providers of view to move this chapter up, followed Program. public transportation in Chapter IV. For by compliance reviews in Chapter VIII Appendices B, C and D contain clarity, we have included as required and complaints in Chapter IX. This sample procedures and forms that elements in the Title VI Program all of chapter largely tracks the DOT Title VI recipients may use as provided, or that the elements under the ‘‘Planning’’ regulation at 49 CFR 21.13 and 21.15. they may modify. Appendix B contains section in the existing Circular, as well The only substantive change to this a sample Title VI Notice to the public. as the elements listed for the Title VI chapter is the addition of the language Appendix C contains a sample Title VI Program in the existing Circular. We from 49 CFR 21.13(c) and (d): complaint procedure, and Appendix D also propose cross-referencing termination or refusal to grant or to contains a sample Title VI Complaint information related to Title VI that FTA continue to grant Federal financial Form. All of these documents are ‘‘vital and FHWA jointly assess and evaluate assistance; and other means authorized documents’’ for LEP purposes, and each during the planning certification by law. FTA seeks comment on the appendix provides information about reviews. As in the existing Circular, content and format of this chapter. providing the information in other States are responsible for monitoring languages as appropriate. H. Chapter VIII—Compliance Reviews their subrecipients, whether those are Appendix E provides a sample form planning subrecipients or transit Chapter VIII, Compliance Reviews, is recipients may use for tracking transit- provider subrecipients. The description substantially similar to the existing related Title VI investigations, lawsuits of this requirement has been removed Chapter VII of the same name. We and complaints. Appendix F contains a from the State requirements chapter, propose removing from the list of sample table depicting the racial and placed in Chapter III since it applies criteria, ‘‘the length of time since the breakdown of the membership of to all primary recipients. As in Chapter last compliance review,’’ as in practice various non-elected decisionmaking III, we propose removing the FTA has not used this criterion. As in bodies. ‘‘eliminating redundancy’’ subsection in other chapters, we use the word Appendix G contains samples for the existing Circular, as we have ‘‘recipient’’ to include subrecipients. In reporting service standards (vehicle determined that recipients must include Section 6, we propose removing the load, vehicle headway, on-time all required information in each Title VI opportunity for recipients to review and performance, service availability) and Program submission. FTA seeks comment on a draft compliance review. Appendix H contains samples for comment on the content and format of This is consistent with changes we are reporting service policies (vehicle Chapter V. making in other civil rights processes. assignment and transit amenities). For We proposed removing the compliance the service standards for vehicle load F. Chapter VI—Requirements for review flow chart, as it is unnecessary and vehicle headway, we have provided Metropolitan Planning Organizations once the process is streamlined. FTA two methods of expressing the standard: The proposed chapter VI equates to seeks comment on the content and in writing and in table format. the chapter VII in the existing Circular. format of this chapter. Recipients should provide both the

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written description and the table when DEPARTMENT OF TRANSPORTATION when a manufacturer learned of a they submit the information in their safety-related defect or decided in good Title VI Program. The service standards National Highway Traffic Safety faith that some products did not comply for on-time performance and service Administration with an applicable Federal motor available, as well as the service policies, vehicle safety standard is for the agency Reports, Forms and Recordkeeping require a written explanation only. to have access to the information Requirements Agency Information available to the manufacturer. Appendix I provides sample Collection Activity Under OMB Review Affected Public: Business or other-for- demographic and service profile maps profit, individuals or households. and charts. Appendix J provides AGENCY: National Highway Traffic Safety Administration, DOT. Estimated Total Annual Burden: information on reporting the 33,590. ACTION: Notice. requirement to monitor transit service. Estimated Number of Respondents: The appendix provides tables and maps SUMMARY: In compliance with the 869. as examples of how to assess the Paperwork Reduction Act of 1995 (44 ADDRESSES: Send comments, within 30 performance of service on minority and U.S.C. 3501 et seq.), this notice days, to the Office of Information and non-minority transit routes for each of announces that the Information Regulatory Affairs, Office of the recipient’s service standards and Collection Request (ICR) abstracted Management and Budget, 725–17th service policies. In addition, this below has been forwarded to the Office Street, NW., Washington, DC 20503, appendix provides a sample of Management and Budget (OMB) for Attention NHTSA Desk Officer. methodology to determine the minority review and comment. The ICR describes Comments are invited on: Whether and/or low-income populations served the nature of the information collections the proposed collection of information by each bus and rail line and provides and their expected burden. The Federal is necessary for the proper performance a framework for comparison. The Register Notice with a 60-day comment of the functions of the Department, appendix provides sample tables and period was published on June 24, 2011 including whether the information will written explanations for each of the [76 FR 37189]. have practical utility; the accuracy of service standards and policies. These DATES: Comments must be submitted on the Department’s estimate of the burden tables are examples of what recipients or before October 31, 2011. of the proposed information collection; should submit with their Title VI FOR FURTHER INFORMATION CONTACT: ways to enhance the quality, utility and Programs. Unless requested to verify the Andrea Noel, National Highway Traffic clarity of the information to be information, FTA does not need the raw Safety Administration, Office of Defects collected; and ways to minimize the data generated through the monitoring Investigation, 202–493–0210, 1200 New burden of the collection of information process. Jersey Avenue, SE., W48–221, on respondents, including the use of automated collection techniques or Appendix K provides checklists for a Washington, DC 20590. SUPPLEMENTARY INFORMATION: other forms of information technology. major service change policy, the A Comment to OMB is most effective analysis, the considerations for a service National Highway Traffic Safety if OMB receives it within 30 days of equity analysis, and considerations for a Administration publication. fare equity analysis. Use of these Title: Consumer Complaint Issued in Washington, DC, on September checklists will assist transit providers in OMB Number: 2127–0042. 26, 2011. ensuring they have met the Type of Request: Extension of a Frank S. Borris, requirements of analyzing major service currently approved collection. changes and fare changes. Director, Office of Defects Investigation, Affected Public: Individuals and Office of Enforcement. Appendix L provides information on households [FR Doc. 2011–25110 Filed 9–28–11; 8:45 am] the various types of recipients and the Abstract BILLING CODE 4910–59–P reporting requirements for each type of recipient. There are five flow charts that Under 49 U.S.C. 30166(e), NHTSA provide a pictorial representation of the reasonably may require a manufacturer DEPARTMENT OF TRANSPORTATION reporting requirements. Appendix M is of a motor vehicle or motor vehicle Chapter VI of the EJ Circular: equipment to keep records, and a Surface Transportation Board Understanding the Similarities and manufacturer, distributor, or dealer to make reports, to enable (NHTSA) to [Docket No. AB 32 (Sub-No. 104X); Docket Differences Between Title VI and No. AB 355 (Sub-No. 40X)] Environmental Justice. Finally, decide whether the manufacturer, distributor or dealer has complied or is Appendix N contains the same content Boston & Maine Corporation— complying with this chapter or a as Appendix D in the current Circular. Abandonment Exemptions—in regulation prescribed under this This appendix provides technical Rockingham, NH; Springfield Terminal chapter. Railway Company—Discontinuance of assistance resources for Title VI and 49 U.S.C. 30118(c) requires Limited English Proficiency. Service Exemptions—in Rockingham, manufacturers to notify NHTSA and NH FTA seeks comment on the owners, purchasers, and dealers if the appendices and seeks suggestions for manufacturer (1) learn that any vehicle Boston & Maine Corporation (B&M) other resources that should be included. or equipment manufactured by it and Springfield Terminal Railway Issued in Washington, DC this 26th day of contains a defect and decides in good Company (ST) (collectively, applicants) September, 2011. faith that the defect relates to motor have jointly filed a verified notice of vehicle safety, or (2) decides in good exemption under 49 CFR part 1152 Peter Rogoff, faith that the vehicle or equipment does subpart F—Exempt Abandonments and Administrator. not comply with an applicable Federal Discontinuances of Service for B&M to [FR Doc. 2011–25122 Filed 9–28–11; 8:45 am] motor vehicle safety standard. The only abandon and ST to discontinue service BILLING CODE 4910–57–P way for the agency to decide if and over approximately 10 miles of railroad

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known as the Hampton Branch in CFR 1152.29 must be filed by October DEPARTMENT OF THE TREASURY Rockingham County, NH. The rail line 11, 2011. Petitions to reopen or requests extends from milepost 0.00 to milepost for public use conditions under 49 CFR Submission for OMB Review; 10.0, and includes the cities of 1152.28 must be filed by October 19, Comment Request Portsmouth, Greenland, Rye, North 2011, with the Surface Transportation September 26, 2011. Hampton, and Hampton. The Line Board, 395 E Street, SW., Washington, traverses United States Postal Service DC 20423–0001. The Department of Treasury will Zip Codes 03801, 03840, 03842, 03862, submit the following public information and 03870. A copy of any petition filed with the collection requirement to OMB for Applicants have certified that: (1) No Board should be sent to applicants’ review and clearance under the local traffic has moved over the line for representative: Robert B. Burns, 1700 Paperwork Reduction Act of 1995, at least 2 years; (2) there is no overhead Iron Horse Park, North Billerica, MA Public Law 104–13 on or after the traffic on the line; and (3) no formal 01862. publication date of this notice. A copy complaint filed by a user of rail service If the verified notice contains false or of the submission may be obtained by on the line (or state or local agency misleading information, the exemption calling the Bureau Information acting on behalf of such user) regarding is void ab initio. Clearance Officer listed. Comments cessation of service over the line either regarding this information collection B&M has filed a combined is pending with the Surface should be addressed to the OMB environmental and historic report that Transportation Board (Board) or with reviewer listed and to the Treasury PRA addresses the effects, if any, of the any U.S. District Court or has been Clearance Officer, Department of the decided in favor of complainant within abandonment and discontinuance on Treasury, 1750 Pennsylvania Avenue, the 2-year period. Applicants have the environment and historic resources. NW., Suite 11010, Washington, DC further certified that the requirements at OEA will issue an environmental 20220. 49 CFR 1105.7(c) (environmental assessment (EA) by October 4, 2011. report), 49 CFR 1105.11 (transmittal Interested persons may obtain a copy of DATES: Written comments should be letter), 49 CFR 1105.12 (newspaper the EA by writing to OEA (Room 1100, received on or before October 31, 2011 publication), and 49 CFR 1152.50(d)(1) Surface Transportation Board, 395 E to be assured of consideration. (notice to governmental agencies) have Street, SW., Washington, DC 20423– Community Development Financial been met. 0001) or by calling OEA at (202) 245– Instutitions (CDFI) Fund As a condition to this exemption, any 0305. Assistance for the hearing OMB Number: 1559–0028. employee adversely affected by the impaired is available through the discontinuance of service shall be Type of Review: Revision of a Federal Information Relay Service protected under Oregon Short Line currently approved collection. (FIRS) at 1–800–877–8339. Comments Railroad—Abandonment Portion Title: The Community Development Goshen Branch Between Firth & on environmental and historic Financial Institutions Program— Ammon, in Bingham & Bonneville preservation matters must be filed Certification Application. Counties, Idaho, 360 I.C.C. 91 (1979). To within 15 days after the EA becomes Abstract: The certification application address whether this condition available to the public. will be used to determine whether an adequately protects affected employees, Environmental, historic preservation, entity seeking CDFI certification or a petition for partial revocation under public use, or trail use/rail banking recertification meets the Fund’s 49 U.S.C. 10502(d) must be filed. conditions will be imposed, where requirements for such certification as set Provided no formal expression of appropriate, in a subsequent decision. forth in 12 CFR 1805.201. intent to file an offer of financial Estimated Total Annual Burden assistance (OFA) has been received, this Pursuant to the provisions of 49 CFR Hours: 11,250. exemption will be effective on October 1152.29(e)(2), B&M shall file a notice of CDFI Fund Clearance Officer: Charles 29, 2011, unless stayed pending consummation with the Board to signify McGee, Community Development reconsideration.1 Petitions to stay that that it has exercised the authority Financial Institutions Fund, Department do not involve environmental issues,2 granted and fully abandoned the line. If of the Treasury, 601 13th Street, NW., formal expressions of intent to file an consummation has not been effected by Suite 205, Washington, DC 20005; (202) OFA under 49 CFR 1152.27(c)(2),3 and B&M’s filing of a notice of 622–8453 trail use/rail banking requests under 49 consummation by September 29, 2012, OMB Reviewer: Shagufta Ahmed, and there are no legal or regulatory Office of Management and Budget, New 1 Originally, applicants indicated that the barriers to consummation, the authority Executive Office Building, Room 10235, proposed consummation date was on or about to abandon will automatically expire. Washington, DC 20503; (202) 395–7873 October 28, 2011, but, because the verified notice was filed on September 9, 2011, the earliest this Board decisions and notices are Dawn D. Wolfgang, transaction may be consummated is October 29, available on our Web site at HTTP:// 2011. On September 19, 2011, applicants’ counsel Treasury PRA Clearance Officer. filed a letter correcting the proposed consummation WWW.STB.DOT.GOV. [FR Doc. 2011–25112 Filed 9–28–11; 8:45 am] date. Decided: September 23, 2011. BILLING CODE 4810–70–P 2 The Board will grant a stay if an informed decision on environmental issues (whether raised By the Board, Rachel D. Campbell, by a party or by the Board’s Office of Environmental Director, Office of Proceedings. Analysis (OEA) in its independent investigation) DEPARTMENT OF THE TREASURY cannot be made before the exemption’s effective Andrea Pope-Matheson, date. See Exemption of Out-of-Serv. Rail Lines, 5 Clearance Clerk. Proposed Collection; Comment I.C.C.2d 377 (1989). Any request for a stay should [FR Doc. 2011–25091 Filed 9–28–11; 8:45 am] Request for Supplemental Quarterly be filed as soon as possible so that the Board may take appropriate action before the exemption’s BILLING CODE 4915–01–P Report (Small Business Lending Fund, effective date. SBLF) 3 Each OFA must be accompanied by the filing fee, which is currently set at $1,500. See 49 CFR AGENCY: Office of Domestic Finance, 1002.2(f)(25). Treasury.

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ACTION: Notice and request for small business lending baseline. The maintenance, and purchase of services comments. baseline is the bank’s historical amount to provide information. of small business lending for the period Dawn D. Wolfgang, SUMMARY: The Department of the October 2009 to September 2010. The Treasury, as part of its continuing effort program considers a bank’s increases in Treasury PRA Clearance Officer. to reduce paperwork and respondent small business lending against this [FR Doc. 2011–25040 Filed 9–28–11; 8:45 am] burden, invites the general public and historical baseline. In addition, a bank’s BILLING CODE 4810–25–P other Federal agencies to take this initial dividend rate is based on the opportunity to comment on proposed increase in small business lending (over and/or continuing information this baseline) in the quarters since DEPARTMENT OF THE TREASURY collections, as required by the October 2010. Paperwork Reduction Act of 1995, Alcohol and Tobacco Tax and Trade Second, every quarter thereafter, the Bureau Public Law 104–13 (44 U.S.C. bank files a Supplemental Report 3506(c)(2)(A)). Currently, the Office of quarterly so that Treasury can assess the Proposed Information Collections; Domestic Finance within the change in the small business lending for Comment Request Department of the Treasury is soliciting the previous quarter. That change from comments concerning requirements for the historical baseline is used to set the AGENCY: Alcohol and Tobacco Tax and banks participating in the Small dividend rate for the next quarter. Trade Bureau; Treasury. Business Lending Fund to report Type of Review: Extension of a ACTION: Notice and request for information about the level and type of currently approved collection. comments. loans they are making to small Affected Public: Banks and lending SUMMARY: businesses on a quarterly basis. institutions that were approved by As part of our continuing DATES: Written comments must be Treasury to participate in the Small effort to reduce paperwork and received on or before November 28, Business Lending Fund. respondent burden, and as required by the Paperwork Reduction Act of 1995, 2011 to be assured of consideration. Estimated Number of Respondents: we invite comments on the proposed or ADDRESSES: You may submit comments 350. continuing information collections by any of the following methods: Estimated Annual Responses: 1,400. listed below in this notice. Federal eRulemaking Portal: http:// Estimated Hours per Response: 4 www.regulations.gov. Follow the hours. DATES: We must receive your written instructions for submitting comments. Estimated Total Annual Burden comments on or before November 28, Fax: Attn: Request for Comments Hours: 5,600 hours. 2011. (SBLF Quarterly Supplemental Reports) The following paragraph applies to all ADDRESSES: You may send comments to (202) 622–8722 of the collections of information covered Mary A. Wood, Alcohol and Tobacco Mail: Attn: Request for Comments by this notice: Tax and Trade Bureau, at any of these (SBLF Quarterly Supplemental Reports). An agency may not conduct or addresses: Office of Domestic Finance, Department sponsor, and a person is not required to • P.O. Box 14412, Washington, DC of the Treasury, 1500 Pennsylvania respond to, a collection of information 20044–4412; Avenue, NW., Washington, DC 20220 unless the collection of information • 202–453–2686 (facsimile); or Instructions: All submissions received displays a valid Office of Management • [email protected] (e-mail). must include the agency name and the and Budget (‘‘OMB’’) control number. Please send separate comments for Federal Register Doc. number that Books or records relating to a collection each specific information collection appears at the end of this document. of information must be retained for five listed below. You must reference the Comments received will be made years. information collection’s title, form or available to the public via recordkeeping requirement number, and regulations.gov or upon request, without Request for Comments OMB number (if any) in your comment. change and including any personal Comments submitted in response to If you submit your comment via information provided. this notice will be summarized and/or facsimile, send no more than five 8.5 × FOR FURTHER INFORMATION CONTACT: included in the request for OMB 11 inch pages in order to ensure Requests for additional information approval. All comments will become a electronic access to our equipment. about the filings or procedures should matter of public record. Comments are FOR FURTHER INFORMATION CONTACT: To be directed to Manager invited on: (a) Whether the collection of obtain additional information, copies of (Communications, Research and information is necessary for the proper the information collection and its External Affairs), Small Business performance of the functions of the instructions, or copies of any comments Lending Fund, Office of Domestic agency, including whether the received, contact Mary A. Wood, Finance, Department of the Treasury, information has practical utility; (b) the Alcohol and Tobacco Tax and Trade 1500 Pennsylvania Avenue, NW., accuracy of the agency’s estimate of the Bureau, P.O. Box 14412, Washington, Washington, DC 20220. burden of the collection of information, DC 20044–4412; or telephone 202–453– SUPPLEMENTARY INFORMATION: including the validity of the 1039, ext. 165. Title: Requirement to report quarterly methodology and assumptions used; (c) SUPPLEMENTARY INFORMATION: data on Small Business Lending. ways to enhance the quality, utility, and OMB Number: 1505–0228. clarity of the information to be Request for Comments Abstract: Once accepted into the collected; (d) ways to minimize the The Department of the Treasury and SBLF program, a bank is required to burden of the collection of information its Alcohol and Tobacco Tax and Trade submit a Supplemental Report each on respondents, including through the Bureau (TTB), as part of their quarter. The Supplemental Report use of automated collection techniques continuing effort to reduce paperwork serves two purposes. or other forms of information and respondent burden, invite the First, the Quarterly Supplemental technology, and (e) estimates of capital general public and other Federal Report is used to determine the bank’s or start-up costs and costs of operation, agencies to comment on the proposed or

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continuing information collections OMB Number: 1513–0037. of spirits to be shipped, and the bond listed below in this notice, as required TTB Form Number: 5100.11. of the U.S. person to cover taxes on such by the Paperwork Reduction Act of 1995 Abstract: TTB F 5100.11 is completed spirits. (44 U.S.C. 3501 et seq.). by exporters to report the withdrawal of Current Actions: We are submitting Comments submitted in response to spirits, denatured spirits, and wines this information collection for extension this notice will be included or from internal revenue bonded premises, purposes only. The information summarized in our request for Office of without payment of tax for direct collection, estimated number of Management and Budget (OMB) exportation; or transfer to a foreign trade respondents, and estimated total annual approval of the relevant information zone, customs manufacturer’s bonded burden hours remain unchanged. collection. All comments are part of the warehouse, or customs bonded Type of Review: Extension of a public record and subject to disclosure. warehouse; or for use as supplies on currently approved collection. Please not do include any confidential vessels or aircraft. Affected Public: Business or other for- or inappropriate material in your Current Actions: We are submitting profit. comments. this information collection for extension Estimated Number of Respondents: We invite comments on: (a) Whether purposes only. The information 20. this information collection is necessary collection, estimated number of Estimated Total Annual Burden for the proper performance of the respondents, and estimated total annual Hours: 750. agency’s functions, including whether burden hours remain unchanged. Dated: September 26, 2011. the information has practical utility; (b) Type of Review: Extension of a Angela M. Jeffries, the accuracy of the agency’s estimate of currently approved collection. Deputy Director, Regulations and Rulings the information collection’s burden; (c) Affected Public: Business or other for- Division. profit. ways to enhance the quality, utility, and [FR Doc. 2011–25145 Filed 9–28–11; 8:45 am] clarity of the information collected; (d) Estimated Number of Respondents: BILLING CODE 4810–31–P ways to minimize the information 300. collection’s burden on respondents, Estimated Total Annual Burden including through the use of automated Hours: 6,000. DEPARTMENT OF THE TREASURY collection techniques or other forms of Title: Application for Operating information technology; and (e) Permit Under 26 U.S.C. 5171(d). Fiscal Service estimates of capital or start-up costs and OMB Number: 1513–0040. costs of operation, maintenance, and TTB Form Number: 5110.25. Proposed Collection of Information: purchase of services to provide the Abstract: TTB F 5110.25 is completed Annual Letters—Certificates of requested information. by proprietors of distilled spirits plants Authority (A) and Admitted Reinsurer who engage in certain specified types of (B) Information Collections Open for activities (such as warehousing bulk Comment distilled spirits for non-industrial use AGENCY: Financial Management Service, Currently, we are seeking comments without bottling). TTB personnel use Fiscal Service, Treasury. on the following forms: the information on the form to identify ACTION: Notice and request for Title: Application and Permit to Ship the applicant, the location of the comments. Liquors and Articles of Puerto Rican business, and the types of activities to SUMMARY: The Financial Management Manufacture Taxpaid to the United be conducted. Service, as part of its continuing effort States. Current Actions: We are submitting OMB Control Number: 1513–0008. this information collection as a revision. to reduce paperwork and respondent TTB Form Number: 5170.7. Changes in this supporting statement burden, invites the general public and Abstract: TTB F 5170.7 is used to reflect changes to section numbers as other Federal agencies to take this document the shipment of taxpaid- recodified in the final rule for the opportunity to comment on a Puerto Rican liquors or articles into the revision of 27 CFR Part 19, Distilled continuing information collection. By U.S. The form is verified by Puerto Spirits Plants. The information this notice, the Financial Management Rican and U.S. Treasury officials to collection, estimated number of Service solicits comments concerning certify that products are either taxpaid respondents, and estimated total annual the ‘‘Annual Letters—Certificates of or deferred under appropriate bond. burden hours remain unchanged. Authority (A) and Admitted Reinsurer This serves as a method of protection of Type of Review: Revision of a (B).’’ the revenue. currently approved collection. DATES: Written comments should be Current Actions: We are submitting Affected Public: Business or other for- received on or before November 28, this information collection for extension profit. 2011. purposes only. The information Estimated Number of Respondents: ADDRESSES: Direct all written comments 80. collection, estimated number of to Financial Management Service, 3700 Estimated Total Annual Burden respondents, and estimated total annual East West Highway, Records and Hours: 20. burden hours remain unchanged. Information Management Program Staff, Type of Review: Extension of a Title: Application and Permit To Ship Room 135, Hyattsville, Maryland 20782. currently approved collection. Puerto Rican Spirits to the United States Affected Public: Business or other for- Without Payment of Tax. FOR FURTHER INFORMATION CONTACT: profit. OMB Control Number: 1513–0043. Requests for additional information Estimated Number of Respondents: TTB Form Number: 5110.31. should be directed to Rose Miller, 20. Abstract: TTB F 5110.31 is used to Surety Bond Branch, 3700 East West Estimated Total Annual Burden allow a person to ship spirits in bulk Highway, Room 632F, Hyattsville, MD Hours: 100. into the U.S. The form identifies the 20782, (202) 874–6850. Title: Withdrawal of Spirits, Specially person in Puerto Rico from where SUPPLEMENTARY INFORMATION: Pursuant Denatured Spirits, or Wines for shipments are to be made, the person in to the Paperwork Reduction Act of 1995, Exportation. the U.S. receiving the spirits, amounts (44 U.S.C. 3506(c)(2)(A)), the Financial

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Management Service solicits comments enhance the quality, utility, and clarity SUPPLEMENTARY INFORMATION: Notice is on the collection of information of the information to be collected; (d) hereby given that the Certificate of described below: ways to minimize the burden of the Authority issued by the Treasury to Title: Annual Letters—Certificates of collection of information on Minnesota Surety and Trust Company Authority (A) and Admitted Reinsurer respondents, including through the use (NAIC#30996) under 31 U.S.C. 9305 to (B). of automated collection techniques or qualify as an acceptable surety on OMB Number: 1510–0057. other forms of information technology; Federal bonds is terminated effective Form Number: None. and (e) estimates of capital or start-up today. Federal bond-approving officials Abstract: This letter is used to collect costs and costs of operation, should annotate their reference copies information from companies to maintenance and purchase of services to of the Treasury Department Circular 570 determine their acceptability and provide information. (‘‘Circular’’), 2011 Revision, to reflect solvency to write or reinsure federal Dated: September 22, 2011. this change. surety bonds. Charles Simpson, With respect to any bonds, including Current Actions: Extension of a continuous bonds, currently in force currently approved collection. Acting Assistant Commissioner (CFO), Management. with above listed Company, bond- Type of Review: Regular. approving officers should secure new [FR Doc. 2011–24877 Filed 9–28–11; 8:45 am] Affected Public: Business or other for- bonds with acceptable sureties in those profit. BILLING CODE 4810–35–M instances where a significant amount of Estimated Number of Respondents: liability remains outstanding. In 347. DEPARTMENT OF THE TREASURY addition, in no event, should bonds that Estimated Time per Respondent: are continuous in nature be renewed. 39.75 hours. Fiscal Service The Circular may be viewed and Estimated Total Annual Burden downloaded through the Internet at Hours: 13.793. Surety Companies Acceptable on http://www.fms.treas.gov/c570. Comments: Comments submitted in Federal Bonds: Termination; Questions concerning this notice may response to this notice will be Minnesota Surety and Trust Company be directed to the U.S. Department of summarized and/or included in the the Treasury, Financial Management AGENCY: Financial Management Service, request for Office of Management and Service, Financial Accounting and Budget approval. All comments will Fiscal Service, Department of the Treasury. Services Division, Surety Bond Branch, become a matter of public record. 3700 East-West Highway, Room 6F01, Comments are invited on: (a) Whether ACTION: Notice. Hyattsville, MD 20782. the collection of information is necessary for the proper performance of SUMMARY: This is Supplement No. 1 to Dated: September 15, 2011. the functions of the agency, including the Treasury Department Circular 570; Laura Carrico, whether the information shall have 2011 Revision, published July 1, 2011, Director, Financial Accounting and Services practical utility; (b) the accuracy of the at 76 FR 38892. Division, Financial Management Service. agency’s estimate of the burden of the FOR FURTHER INFORMATION CONTACT: [FR Doc. 2011–24876 Filed 9–28–11; 8:45 am] collection of information; (c) ways to Surety Bond Branch at (202) 874–6850. BILLING CODE 4810–35–M

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Part II

Department of Commerce

National Oceanic and Atmospheric Administration 50 CFR Part 648 Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Annual Catch Limits and Accountability Measures; Final Rule

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DEPARTMENT OF COMMERCE accessible via the Internet at http:// Black Sea Bass FMP; Amendment 16 to www.nero.noaa.gov. the Surfclam and Ocean Quahog FMP; National Oceanic and Atmospheric FOR FURTHER INFORMATION CONTACT: and Amendment 3 to the Tilefish FMP. Administration Michael Ruccio, Fishery Policy Analyst, Approved Omnibus Amendment (978) 281–9104. 50 CFR Part 648 Measures SUPPLEMENTARY INFORMATION: NMFS evaluated all comments [Docket No. 100902424–1331–03] Background received by the end of the comment periods, whether specifically directed to NMFS published a Notice of RIN 0648–BA23 the amendment approval decision or the Availability (NOA) soliciting public proposed rule measures, in its Magnuson-Stevens Fishery input on the Omnibus Amendment in decisionmaking process. NMFS, on Conservation and Management Act the Federal Register on May 23, 2011 behalf of the Secretary, approved the Provisions; Fisheries of the (76 FR 29717). NMFS published a Omnibus Amendment on August 12, Northeastern United States; Annual proposed rule in the Federal Register on 2011. NMFS now implements through Catch Limits and Accountability June 17, 2011 (76 FR 35578), proposing this final rule, the Omnibus Measures regulations that would implement the Amendment measures recommended by Omnibus Amendment measures. The the Council and as contained in the AGENCY: National Marine Fisheries NOA specifically solicited input on Service (NMFS), National Oceanic and proposed rule, with minor clarifications whether NMFS, acting on the behalf of as outlined in the Changes and Atmospheric Administration (NOAA), the Secretary of Commerce (Secretary), Commerce. Clarifications from the Proposed Rule should approve, partially approve, or section later in this preamble. As ACTION: Final rule. disapprove the Omnibus Amendment. outlined in the proposed rule and Comments were accepted through July SUMMARY: NMFS hereby implements an Omnibus Amendment document, this 22, 2011, on the NOA. The proposed omnibus amendment to all Mid-Atlantic action establishes the framework that rule outlined the Acceptable Biological Fishery Management Council (Council) the Council and SSC will utilize to Catch (ABC) control rules for use by the fishery management plans (FMPs) to establish catch limits, the system for Scientific and Statistical Committee bring all Council FMPs into compliance maintaining accountability when ACLs (SSC) in recommending ABC to the with the annual catch limit (ACL) and are exceeded, the process to evaluate the Council, a risk policy for use in accountability measure (AM) continued efficacy of the overall ABC/ conjunction with the ABC control rules requirements of the Magnuson-Stevens ACL/AM system, and the methods by to inform the SSC of the Council’s Act (MSA). This rule is necessary to which future changes to the overall preferred tolerance for the risk of establish measures that address the system may be made. The actual ABC overfishing a stock, ACLs for all MSA-required elements to utilize recommendations by the SSC and Council-managed stocks except Loligo scientific advice, establish catch limits, establishment of ACLs by the Council and Illex squids, which are exempt from and maintain accountability in will occur in subsequent specification the ACL/AM requirements because they managing fisheries. There are multiple setting processes. The approved are not overfished and have annual life objectives of the Omnibus Amendment: Omnibus Amendment measures are as cycles, comprehensive AMs for all To establish a comprehensive follows: established ACLs, descriptions of the framework for all Council FMPs that is process to review ACL and AM ABC Control Rules compliant with the MSA requirements performance, and information on the and consistent with the National This rule implements the four ABC processes for the future modification of Standard 1 guidelines issued by NMFS; control rule approaches developed by the measures established through the to implement a process that more the Council’s SSC, as proposed. The Omnibus Amendment. Comments were formally utilizes scientific framework of these rules places stocks accepted on the proposed rule measures recommendations in the establishment into one of four levels, each with through July 18, 2011. Additional of annual catch levels; to establish a specific criteria for both placement and background information and detail on framework to derive ACLs with AM generation of ABC recommendations, why and how the Omnibus Amendment backstops; and to establish processes for based on the amount of scientific was developed and the overarching revisiting and modifying the measures uncertainty as determined by the SSC requirements the amendment satisfies established by the Omnibus involved with the stock assessment, were provided in the Omnibus Amendment so that overfishing is available data, life history, and other Amendment proposed rule (76 FR prevented, stocks are rebuilt as needed, scientifically related parameters. When 35578, June 17, 2011) and are not and optimum yield (OY) may be possible, the SSC will utilize the repeated here. overfishing level (OFL) probability achieved for all managed stocks under The Council reviewed the proposed the Council’s jurisdiction. distribution in conjunction with the Omnibus Amendment regulations as Council’s risk policy to derive and DATES: Effective October 31, 2011. drafted by NMFS and deemed them to recommend ABC to the Council. In ADDRESSES: Copies of the Omnibus be necessary and appropriate as instances where OFL cannot be Amendment document, including the required by section 303(c) of the MSA. determined, or for stocks that the SSC Environmental Assessment and The Omnibus Amendment established determines have an unreliable OFL or Regulatory Impact Review (EA/RIR) and the measures described later in this final OFL distribution, the control rules guide other supporting documents for the rule through the following specific FMP the SSC in how ABC shall be derived. Omnibus Amendment, are available amendments: Amendment 13 to the from Dr. Christopher M. Moore, Atlantic Mackerel, Squids, and Council Risk Policy Executive Director, Mid-Atlantic Butterfish FMP; Amendment 3 to the This rule implements the risk policy Fishery Management Council, Suite 201, Atlantic Bluefish FMP; Amendment 2 to approaches, as proposed. The Council’s 800 North State Street, Dover, DE 19901. the Spiny Dogfish FMP; Amendment 15 risk policy is designed to inform the The Omnibus Amendment is also to the Summer Flounder, Scup, and SSC of the Council’s tolerance for the

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risk of overfishing. The risk policy uses ACL to ACT necessary to address Secretary’s amendment approval a combination of the ratio of biomass management uncertainty. Where ACLs decision and the Omnibus Amendment (B)/BMaximum Sustainable Yield (MSY) and the are divided into sector-specific ACLs, proposed rule (76 FR 35578; June 17, life history traits of any given species to comparable sector ACTs that address 2011). Comments were submitted by set the tolerance for overfishing the associated sector-specific private citizens, a recreational party/ anywhere from zero (for stocks with a management uncertainties will be used. charter vessel operator, a commercial B/BMSY of 0.10 or lower, irrespective of Finally, estimated discards (i.e., dead fish processing plant operator, a life history traits) to a maximum of a 40- discarded catch) will be removed from commercial fisheries advocacy group, percent probability of overfishing for ACTs to yield either commercial or and the following nongovernmental stocks with a typical life history as recreational landing targets, as organizations (NGOs): Environmental determined by the SSC and a B/BMSY of applicable. In summary, the structure Defense Fund; Pew Environmental 1.0 or higher. for all Council FMPs is: OFL ≥ ABC = Group; Marine Fish Conservation The probability of overfishing, as ACL(s) ≥ ACT(s), with scientific Network; National Coalition for Marine determined by the risk policy, will be uncertainty addressed at the ABC level Conservation; and Oceana. Some of the applied by the SSC to stocks with either by the SSC as an offset from OFL, and comments did not provide input on the an OFL distribution from the stock management uncertainty addressed by amendment approval decision, nor did assessment or generated by the SSC. If the Council following recommendations they address the proposed measures; no OFL is available from a stock from Council staff or species-specific thus no response to these comments is assessment and no OFL proxy is monitoring committees at the ACT level provided here. Where possible, provided by the SSC when an ABC as an offset from the ABC/ACL level. responses to similar comments on the recommendation is made, the risk Existing proactive accountability amendment approval decision and policy does not permit increases in ABC measures, including commercial trip proposed measures have been until an acceptable OFL has been and possession limits, commercial consolidated. identified. fishery closure authority, and Comment 1: One NGO commented For stocks under a rebuilding plan, commercial fishery overage repayments that the Council and NMFS appeared to the risk policy requires that the are being retained and codified as AMs exempt Loligo and Illex squids from all probability of exceeding the rebuilding through the Omnibus Amendment. In the required provisions of the MSA and target F (FREBUILD) would be 50 percent, addition, new AMs are established to NS1 guidelines. Specifically, the unless modified to a lesser value (i.e., a close recreational fisheries when data in commenter stated that ABC must be higher probability that FREBUILD would hand indicate ACLs have been met or established for both squid species using not be exceeded) through a stock exceeded, as well as establishing lb-for- the ABC control rules and Council risk rebuilding plan amendment. In lb repayment of any catch above policy. instances where the rebuilding plan risk established ACLs for all fisheries. Response: The Omnibus Amendment policy and general risk policy result in Recreational ACLs will be evaluated on only exempts Loligo and Illex squid different approaches and potential a 3-yr rolling average comparison of from the ACL and AM components of ABCs, the SSC will forward the lower of ACLs to 3-yr average catch. The the amendment; all other NS1 guideline the two resulting ABCs to the Council Omnibus Amendment also provides for requirements apply to these two species. as a more risk averse approach. adjustments to future ACTs when the Both the Omnibus Amendment document and the proposed rule state Annual Catch Limits and Accountability causes of ACL overages are not related that Loligo and Illex squid are exempt Measures to landings (i.e., dead discards, a combination of landings and discards, from the ACL and AM requirements. This final rule implements the ACL or other sources of stock mortality that Neither document provides any and AM measures, as proposed, along may be tracked and subsequently additional exemptions from the NS1 with the minor changes outlined in the quantified). guidelines for these species. The Changes from the Proposed Rule Section Omnibus Amendment approach for both later in this preamble. Under the Review and Future Modification of squids is wholly consistent with the implemented approach established by Omnibus Amendment Measures annual life cycle exemption found in the Omnibus Amendment, the Council The Omnibus Amendment establishes the note to section 303 of the MSA and will rely on the SSC to set ABC at or that ACL and AM performance reviews the NS1 guidelines at § 600.300(h)(2) below OFL, with the reduction from will occur at least every 5 yr if ACLs are and, as such, they are exempt from ACL OFL dependent on the amount of not routinely exceeded. Consistent with and AM requirements, but must have scientific uncertainty identified by the the NS1 guidelines, if the ACL is status determination criteria, MSY, OY, SSC. Where applicable, Canadian catch exceeded for any species with a ABC, and ABC control rules as part of estimates will be removed from the frequency greater than 25 percent of the their FMP. As both species already have overall ABC to establish a domestic ABC time (i.e., more than 1 in 4 yr, or in any these required elements in their FMP, for U.S. catch. The Council will 2 consecutive years), the Omnibus NMFS is implementing the Omnibus recommend to NMFS ACLs set equal to Amendment requires the Council to Amendment as proposed. ABC for all species, with some further initiate a review of the ACL, ACT, and Comment 2: One NGO raised subdivision to sector-level ACLs where AM approaches used. concerns about the process to modify stocks have pre-existing allocations for The Omnibus Amendment the ABC control rules and risk policy both commercial and recreational implements the comprehensive listing established by the Omnibus fisheries. The sum of these sector ACLs of items that may be modified through Amendment. The commenter asserted will equal the ABC. Annual Catch the Council’s specification or framework that these two components of the Targets (ACTs) will be used to address adjustment processes, as proposed. Omnibus Amendment could be management uncertainty. Council staff modified through the Council’s or species-specific monitoring Comments and Responses specification process. Specific concerns committees will review available NMFS received 11 combined were raised that the specification information and recommend to the comments on the May 23, 2011 (76 FR process could inappropriately be used Council the amount of reduction from 29717), NOA requesting input on the to modify the ABC control rules and/or

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risk policy, which could minimize percent probability of overfishing or, justification for the decisions reached. public participation and analysis of alternatively expressed as a 60-percent This is not inconsistent with the alternatives. The commenters stated that probability that overfishing will not approach contemplated under NS1. The the Omnibus Amendment must be occur, is permitted. This probability is SSC recently applied the risk policy in disapproved until such time that the 10 percent lower than the precedent developing ABC recommendations for potential adjustment processes are established for rebuilding probability of the summer flounder, scup, and bluefish clarified by the Council. success, wherein a 50-percent stocks. NMFS disagrees that the risk Response: NMFS disagrees that the probability of not exceeding the policy is a ‘‘paper exercise,’’ as the SSC Omnibus Amendment should be FREBUILD target was established for has begun using both the ABC control disapproved, as these concerns are summer flounder (see NRDC v. Daley). rules and risk policy. unfounded. The Omnibus Amendment The maximum probability of overfishing Comment 4: Some commenters and its implementing regulations do not for a SSC-determined atypical life expressed concern that the ABC control authorize the Council to make such history species is 35 percent, which is rule for deriving ABC for stocks changes through the specification a 65-percent probability that overfishing categorized as level 3 and 4, and the process. Minor adjustments, within a will not occur. The NS1 guidelines conditions for when the SSC might narrowly defined scope, are permitted indicate that the risk tolerance for deviate from the ABC control rule as outlined in each species-specific overfishing a stock is an important framework, are too vague. Some of these framework adjustment process component of the ABC control rule and comments recommended disapproving regulation. For all other changes, the derivation process; however, it is not a the amendment until such time that Council would be required to utilize an requirement that must be specified in an more information and criteria were FMP amendment process. FMP. The NS1 guidelines make clear added to how ABC would be derived for Comment 3: One NGO stated that the that a minimum threshold of a level 3 and 4 stocks and rules preferred Omnibus Amendment risk 50-percent probability of overfishing is established for when the SSC could policy (Alternative G, a two-tiered required; thus, NMFS would only have deviate from the ABC control rule approach based on species life history) grounds to disapprove the Council’s risk framework. provides too great a risk of overfishing policy approach if it permitted a higher Response: NMFS disagrees. NS1 and should be disapproved in favor of probability that overfishing would guidelines contemplate and authorize one of the other proposed risk occur. SSCs to deviate from ABC control rule alternatives (Alternative D, a four-tiered calculations, but require the SSC to approach considering stock status, All the risk policy alternatives were provide an explanation of why an replenishment threshold, and developed through a comprehensive, alternative ABC is more appropriate productivity, as well as an approach for collaborative effort of the Council’s SSC (§ 600.310(f)(3)). Because the authority the maximum permissible risk of and the Council. The alternative to deviate from ABCs calculated using implemented in the final rule provides overfishing allowed at a B/BMSY the control rules is explicitly provided inflection point higher than 1.0). In a useful and appropriate system to under the NS1 guidelines, there was no addition, the commenter expressed inform the SSC of the Council’s need to include the generic description concern about the vague life history tolerance for the risk of overfishing. It is of this possibility in the Omnibus criteria in the two-tiered Alternative G a more robust approach than selecting a Amendment and proposed rule; approach that will be used to fixed percentage, and is more restrictive however, a brief description was distinguish typical and atypical species. than the minimum requirement, and included, designed to echo the language The commenter also asserted that the sets a maximum probability thereby of § 600.310(f)(3), for better transparency risk policy is largely superfluous, as providing some flexibility to consider of the process. In fact, given the many of the Council stocks will not current information and circumstances language in the NS1 guidelines, the SSC have the necessary OFL probability when setting catch levels. NMFS may deviate from any ABC control rule distributions needed to apply the risk acknowledges that the risk policy is level at any time, provided it can policy in a meaningful way. These only applicable for stocks assigned to satisfactorily explain why the deviation comments on the risk policy were ABC control rule levels 1–3 when an was necessary and how the alternative suggested as grounds upon which acceptable OFL probability is provided methods used are the best approach. NMFS should disapprove the Omnibus as an assessment output or can be In addition, the level 3 and 4 control Amendment (i.e., allegations that the generated by the SSC for level 3 stocks. rule approaches provide a meaningful risk policy will not prevent overfishing.) NMFS also acknowledges that the framework for the SSC to evaluate the Response: NMFS disagrees that the expert judgment of the SSC will play a quality of assessment information and amendment should be disapproved and critical role in deriving ABC for stocks uncertainty in deriving an ABC also disagrees that one risk policy for which no OFL exists or for which recommendation for the Council. The alternative must be substituted over OFL is not viewed as adequate. These SSC is expected to conduct its ABC another. NMFS has approved and is stocks will either have the default recommendation process in an open, implementing the Council-preferred risk control rule applied (75 percent of the transparent public forum and to provide alternative (Alternative G). NMFS FMSY rate for level 3 stocks) or will have detailed documentation for the Council considers that the risk policy, in thoroughly documented, more and public that provides the conjunction with the comprehensive conservative approaches designed to information considered, the approaches system for deriving ABC and ensure overfishing does not occur (level taken, and why the ABC recommended establishing ACL(s) and ACT(s), will 4 stocks). Additionally, deference is is consistent with the best available provide a sufficiently high probability given to the SSC to make determinations scientific information, to satisfy that overfishing will not occur. as to which Council-managed species National Standard 2 requirements. For The risk policy under Alternative G have typical or atypical life histories. In these reasons, the level 3 and 4 ABC establishes a maximum permissible risk all the aforementioned scenarios control rules and the description of overfishing stocks. For a stock that wherein the SSC may utilize judgment, process for recommending alternatively has a B/BMSY ratio over 1.0 and has a the process will occur in open meetings derived ABCs are sufficient to approve typical life history, a maximum 40- and will include documentation and the Omnibus Amendment. NMFS

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expects that the ABC control rule the more than 1-in-4 or 2-consecutive- be reached or exceeded. Some provides a sufficiently robust approach year ACL overages occurred. The SSC commercial fisheries also have that utilizes the best available scientific has been reviewing the establishment possession or trip limit reductions that information, and that the ABC process and the performance of ABC occur when specified amounts of recommendations from the SSC will recommendations annually. It is landings are reached. For example, the provide a low risk of overfishing any expected that the level of review scup Winter I season possession limit is given stock, irrespective of that stock’s involved with the first few years of reduced when 80 percent of the Winter level assignment. There remain some operation under the ACL management I landing limit is reached. Many of these stock assessments that are limited by the system will require more intensive commercial fishery management available data and/or understanding of examination of performance, until such systems previously existed and were species status. The four-level ABC time that the system becomes more adopted as proactive AMs in the control rule framework is designed to stable. Omnibus Amendment. encourage scientific examination so that Comment 7: One commenter stated Recreational fisheries landings will stocks may be advanced to levels that the potential economic impacts of also be monitored during the fishing indicative of more robust the Omnibus Amendment implemented season, but because recreational data are understanding. The proposed rule did frameworks should have been prepared available much less frequently (i.e., not repeat that the ABC control rules are by the Council and NMFS. Specifically, updates provided in 2-month waves, a spectrum from least uncertain to most the commenter called on NMFS and the delivered some 6 weeks after the end of uncertain for levels 1 to 4; this Council to prepare a more thorough the wave period), the Omnibus description is in the Omnibus analysis of potential changes in yield, Amendment establishes that Amendment. by species, and the resultant potential recreational fishery closures will occur Comment 5: Several commenters with economic impacts. only when data in hand indicate a recreational fishing interests stated that Response: NMFS disagrees. The landing level has already been reached no recreational ACL overages should be Omnibus Amendment outlines a or exceeded. This is to help mitigate the required to pay back lb-for-lb the framework for how catch levels will be uncertainty that occurs in trying to overage amount through AMs until such established consistent with NS1 project recreational landings. The time that the Marine Recreational requirements and, as such, does not authority to close recreational fisheries Information Program (MRIP) is provide information on actual catch based on landings evaluations is a new operational. levels, by species, the application of risk component adopted in the Omnibus Response: NMFS expects the MRIP tolerances, or scientific or management Amendment. system for estimating recreational uncertainties. The Council’s approach, There is not currently the ability to catches to be available for the first year supported by NMFS, has been that the monitor dead discards in season for the of ACL performance evaluation (i.e., the application of the Omnibus purposes of inseason monitoring and 2012 FY). Amendment’s framework for setting potential closure. There will be a post- Comment 6: One commenter raised ABC, ACLs, and ACTs will be fully fishing year accounting to determine concern that the Omnibus Amendment’s evaluated as individual species dead discards and, in combination with planned 5-year review of ABC control specification processes occur in 2011 for the final landings data, an evaluation of rules and ACL performance is too long. the 2012 FY. These evaluations will ACL and ACT performance. If in the The commenter was concerned about provide economic impact analysis of the future, the ability to monitor total catch lost yield if ACLs and ACTs are set ‘‘too ABCs, ACLs, ACTs, and other Omnibus becomes available on a real-time basis, conservatively,’’ stating that the only Amendment elements, specific to the the Council may consider modifying an opportunity to potentially see less measures being proposed. FMP to specify when closures will be conservative approaches applied may Comment 8: One commenter enacted at either the ACT or ACL level. not occur until the 5-yr review. requested clarification on whether the Comment 9: One commenter stated Response: The Omnibus Amendment decision to close fisheries will be made that Atlantic mackerel and spiny affords flexibility for the Council to re- based on exceeding the ACL, ACT, or dogfish ABCs should not be reduced to examine the performance of any of the other levels within the Omnibus account for Canadian catch. measures at any time it deems such a Amendment framework. The Response: These stocks are managed review appropriate. The selection of a commenter also asked for clarification on a stock-wide basis, including the planned 5-year detailed performance on why commercial and recreational portion of the stock distributed in review was deliberately selected to sector landing-based closure evaluations Canadian waters. The specification ensure that ABC, ACL, and ACT setting are different. setting process for the two species approaches and subsequent Response: Closures are tied to the currently accounts for Canadian catch performance will be formally reviewed established commercial fishing quotas on the stock prior to establishing catch by the Council on a fixed schedule; and recreational harvest limits (for levels. The Omnibus Amendment however, this does not preclude fisheries with recreational sectors) established an approach wherein this additional review on a more frequent under the Omnibus Amendment. stock-wide management is preserved basis. In addition, the Omnibus Landings will be monitored during the and, because the MSA is inapplicable Amendment requires a thorough fishing seasons and proactive AMs within Canadian jurisdiction, removes performance review should an ACL be utilized to close the respective sectors the estimated Canadian catch before exceeded more than once in a 4-year when landing limits are reached. The establishing a domestic ABC, ACL, and period, or if an ACL is exceeded in 2 commercial closure approaches vary ACT for the U.S. portion of the fishery. consecutive years. These latter criteria from species to species, but generally NMFS agrees that this is a logical for review may well occur if ACLs have the level of commercial landings are approach and accomplishes been set ‘‘too conservatively,’’ as monitored in-season on a weekly or management of the stocks throughout suggested by the commenter. Were no daily basis, based on dealer-reported their range, which is a biologically period expressed for the formal review, data, and the commercial fishery may be sound approach. the Council would not be obligated to closed when landings projections Comment 10: Some commenters perform any performance review unless indicate that the established level will alleged that NMFS failed to ensure that

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the Omnibus Amendment’s EA available to the action agency cannot The Council acted consistently with provided alternatives to the proposed support the conclusions required in these guidelines in deciding to set action, and that an Environmental order to make a FONSI. The EA ACL=ABC for all managed species and Impact Statement (EIS) should have associated with the Omnibus to address management uncertainty by been required for the Omnibus Amendment evaluated the expected setting ACTs. Commenters argue that Amendment. The commenters cited direct, indirect, and cumulative impacts the decision to set ACL=ABC precludes several instances wherein they alleged likely to result from implementation of the Council for considering OY factors that additional reasonable and/or the proposed action. The EA, in both when setting the ACL and for that feasible alternatives should have been form and scope, followed all agency reason that the Council was required to developed and instances where they guidelines for an EA associated with an consider alternatives that set the ACL at believe the analyses were incomplete or FMP amendment. Had a FONSI a level less than the ABC. The response otherwise insufficient. Alleged determination not been supportable, to comment 12 below further explains instances of insufficient alternatives based on the analyses, then an EIS the Council’s approach for considering include an alleged failure to consider would have been prepared, consistent OY factors. Because the Council, additional approaches for dealing with with the process outlined in CEQ consistent with the NS1 guidelines, Canadian catch in the Atlantic mackerel regulations. Future FMP actions that chose to address those OY factors that and spiny dogfish fisheries, lack of make use of the Omnibus Amendment are not considered in setting ABC when additional alternatives beyond setting processes to establish fishing quotas setting the ACT, there was no need to ACL = ABC, with emphasis that will evaluate the impacts of those consider setting the ACL at a level lower ACL < ABC should have been actions as part of the specification than the ABC; such an alternative would developed as an alternative for setting process. have been superfluous. consideration and analysis, an alleged The Omnibus Amendment considered Moreover, the Council fully complied failure to provide sufficient measures to a reasonable range of alternatives for the with NEPA in developing a reasonable ensure accountability, including decisions made. The EA clearly lays out range of alternatives for the processes of insufficient alternatives for proactive the alternatives considered for each setting ABCs, ACLs, and AMs AMs besides ACT. Most of the decision point and explains the (including ACTs). Where it was feasible, comments on inadequate analyses reasoning behind the development of the Council developed multiple centered on alleged insufficient those alternatives, and for the ultimate proactive and reactive accountability description of the fisheries, species decision between those alternatives. measures designed to prevent the ACLs captured, and consideration of stocks in Additionally, Appendix A to the EA from being exceeded. Notably while one the fishery. provides a discussion of the alternatives commenter argues that more proactive Response: Consistent with NEPA, that were initially developed, but not accountability measures were required Council for Environmental Quality given further consideration because they to be considered, the commenter does (CEQ) regulations, and NOAA were determined to be either infeasible not point to any specific measures that administrative policy, the Council and or insufficient. were overlooked by the Council. The NMFS collaborated to prepare an EA to Council considered all reasonable and evaluate the significance of the The response to comment 9 provides feasible alternatives, consistent with environmental impacts expected as a additional information on why NMFS NEPA. result of the actions proposed in the considers the Omnibus Amendment Omnibus Amendment. The results of approach for addressing Canadian catch Comment 11: Many of the NGOs this assessment are provided in section of Atlantic mackerel and spiny dogfish alleged that the Omnibus Amendment 7.0 of the EA signed by NMFS on July, to be acceptable. The response to fails to adequately analyze non-target 28, 2011. The FONSI concludes that comment 11 outlines NMFS’ response species captured by fisheries for Mid- because the Omnibus Amendment will that additional treatment of species Atlantic FMP species and does not merely be formalizing the process of captured in target fisheries, and adequately consider all fisheries addressing scientific uncertainty and designation of non-target stocks and requiring conservation and management uncertainty when setting ecosystem components was not management. These commenters catch limits with a comprehensive required. indicated that the Omnibus Amendment system of accountability for catch for NMFS has determined that the should be disapproved and additional each of the managed resources that the Council’s analysis in setting ABCs, analyses conducted to indicate all impacts of the considered alternatives ACLs, and AMs was consistent with the species captured in Mid-Atlantic are administrative in nature. Thus NS1 guidelines and met the fisheries, reclassification of stocks as because the measures contained in the requirements of NEPA. The NS1 target, non-target, stocks in the fishery, Omnibus Amendment largely build on guidelines instruct that in order to and ecosystem components, as needed. measures already contained in the FMP, prevent overfishing and achieve, on a One commenter indicated that this which have been in place for many continuing basis, OY all sources of information is contained in existing years, NMFS does not expect that the uncertainty—both scientific and Standardized Bycatch Reporting new actions taken in the Omnibus management uncertainty—must be Methodology (SBRM) reports and Amendment will have any significant addressed. Scientific uncertainty should should have been used by the Council impacts. The commenters provided no be addressed in reducing the ABC from in the Omnibus Amendment evidence, nor even any claims, that the the ACL and management uncertainty development. Further comments on this conclusions in the FONSI are not can either be addressed in reducing the topic stated that the Omnibus supported by the evidence provided in ACL from the ABC, or through the use Amendment should be disapproved the EA for this finding. of AMs, including ACTs. The purpose of because it fails to establish appropriate According to the CEQ regulations, and utilizing an ACT is so that, given sub-ACLs for FMP-managed species guidance on the subject, an EIS need uncertainty in the amount of catch that captured incidentally in Council- only be prepared when an EA or other will result from the conservation and managed target fisheries. One related analysis identifies significant management measures in the fishery, commenter stated, as an example, that effects on the environment or if the facts the ACL will not be exceeded. swordfish captured in the squid trawl

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fishery should be managed through a Amendment. The level of analyses Response: The Omnibus sub-ACL. requested by these collective comments Amendment’s approach to OY is Response: NMFS disagrees with these would be wholly appropriate if the consistent with the MSA and the NS1 interpretations of the NS1 guidelines Council had elected to add new stocks guidelines. National Standard 1 of the and disagrees that the Omnibus to the fishery or include them as MSA requires that a fishery Amendment’s approach to stocks in the ecosystem component species. As the management plan or amendment fishery, incidentally captured species, Council did not, the level of fishery prevent overfishing while achieving, on and sub-ACLs is deficient and must be information provided is sufficient and a continuing basis, the optimum yield disapproved. Section 302(h) of the MSA not grounds for disapproving the from each fishery for the United States authorizes each Council to prepare and amendment. fishing industry. 16 U.S.C. 1851(a)(1). submit a fishery management plan and The designation of sub-ACLs is not The MSA defines ‘‘optimum’’ with amendments for ‘‘each fishery under its required by the MSA or NS1 Guidelines. respect to yield from a fishery as being authority that requires conservation and Although sub-ACLs are utilized in some prescribed on the basis of maximum management.’’ The NS1 guidelines fisheries in other regions, the Council sustainable yield from the fishery, as provide that, by default, species decided that sub-ACLs were neither reduced by relevant economic, social or managed under FMPs are considered to reasonable or practical here, given the ecological factor. 16 U.S.C. 1802(33). be stocks in the fishery. 50 CFR current constraints on fishery The Omnibus Amendment amends 600.310(d). The NS1 guidelines do not monitoring for Mid-Atlantic stocks. All existing FMPs to address new annual require Councils to change which managed species catch, regardless of catch limit and other requirements, but species are or are not included in FMPs, whether the FMP is a Mid-Atlantic, retains the FMPs’ existing, previously- nor do the NS1 guidelines require FMPs South Atlantic, New England, or approved processes for specifying and to incorporate ecosystem component Secretarial FMP, is fully accounted for assessing OY. The Council’s FMPs all species classifications. Councils may, under the respective ACLs, irrespective contain a process for assessing, but are not required to, use an of whether the catch is directed specifying, identifying, and adjusting ‘‘ecosystem component species’’ landings, dead discards in the directed OY, as needed, based on relevant classification. 50 CFR 600.310(c)–(d). fishery, or dead discards incurred while economic, social, and ecological factors Thus, Councils have had, and continue targeting other species. With regard to for each species. The reauthorized MSA to have under the MSA and NS1 swordfish, the Secretary of Commerce, did not change National Standard 1 or Guidelines, considerable discretion to and not the Councils, directly manages the definition of OY, and the basic define the managed ‘‘fishery.’’ the fishery under an Atlantic Highly approach to OY is unchanged in the Consistent with the MSA and the NS1 Migratory Species FMP. 16 U.S.C. NS1 guidelines. Thus, there is no need Guidelines, the Council determined that 1854(g). That Secretarial FMP accounts to revise the OY processes in the the stocks managed under its FMPs for the total catch of swordfish, Omnibus Amendment. should all continue to be considered including that which occurs in the The NS1 Guidelines provide that OY stocks in the fishery, exercised its squid fishery both as authorized can be described at a fishery, stock discretion not to add other species in retention for sale and as dead discards complex, or stock level and the OY the fishery, and decided against (if any). The NS1 guidelines do not specification process must be included pursuing potential ecosystem require the Secretary and the Council to in FMPs or amendments. 50 CFR component species classification. While establish a swordfish sub-ACL in the 600.310(c), (e)(3). While the Councils the NS1 guidelines explain that a Atlantic Mackerel, Squids, and have codified OY identification Council should determine which target Butterfish FMP. approaches for some individual stocks, and non-target species to include in a Comment 12: Several NGOs for other stocks, the Councils address fishery, the guidelines do not require commented that NMFS should OY at the fishery level, consistent with FMPs to list species in target and non- disapprove or partially disapprove the what is required under the MSA and target species ‘‘classifications.’’ See 50 Omnibus Amendment until approaches allowed under the NS1 guidelines. CFR 600.310(d). The main point of to OY are revised by the Council Providing a clear description of OY classifying stocks is distinguishing consistent with the NS1 Guidelines. considerations is an important part of between ‘‘stocks in the fishery’’ versus Specifically, these commenters asserted the specification process, and the the ecosystem component species that the Omnibus Amendment must existing FMPs provide such category. See 50 CFR 600.310(c)–(d). include OY evaluations for all Council- descriptions. The MSA also does not require managed species, with specific Because the reauthorized MSA added classification into target and non-target determination of where OY lies within ACLs and ABC, the NS1 guidelines were classifications. Section 303(a)(2) of the the overall ABC/ACL/ACT framework revised to clarify the relationships MSA merely requires that an FMP for each species. These commenters between MSY, OY, ABC, and ACL(s), contain a description of the species of stated that more specificity must be and these relationships were also fish involved in the fishery; this is not included in the process descriptions for discussed in the Omnibus Amendment a new requirement, nor is that how ACL or ACTs may be adjusted for (p. 27–28). The guidelines state that requirement modified by the NS1 OY considerations (i.e., relevant achieving OY on a continuing basis guidelines. The Mid-Atlantic FMPs economic, social, or ecological factors), means producing a long-term series of have, since their inception, approval, and provide that ACL should be catches such that the average catch is and implementation, contained these reduced from ABC for OY equal to OY and other conservation required descriptions. Amendments to considerations. In addition, one objectives of the MSA are met. 50 CFR the FMPs, including the Omnibus commenter said it would not be 600.310(e)(3)(i)(B). The guidelines Amendment, update these listings. The appropriate for OY considerations to be further state that an FMP must contain Omnibus Amendment’s affected applied at the ACT level, as it is a target, measures, including ACLs and AMs, to environment incorporates, by reference, not a limit. Another commenter achieve OY on a continuing basis. detailed analyses of species involved in indicated that specification of OY is However, the MSA and guidelines do each fishery. NMFS supports the missing from several Mid-Atlantic FMP not require that OY considerations be Council’s approach in the Omnibus implementing regulations. addressed when developing ACLs. A

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Council may set an ACL lower than uncertainty within their respective level, by sector, to be monitored ABC to take into account factors related fisheries and provide the technical inseason. Following the completion of to preventing overfishing or achieving basis, including any necessary control the fishing year, the final landings will OY, or it may set the ACL equal to ABC rules, along with a recommendation for be added to the re-estimated dead and take these additional factors into the necessary ACT. NMFS finds this discards to provide total catch. If this account when establishing ACTs. See approach to be consistent with the NS1 total catch exceeds the ACL, AMs will final NS1 guidelines, 74 FR 3178, 3189 guidelines that merely state that an ACT be imposed as soon as possible, (explaining OY, ABC, ACT, ACL control rule may be utilized as part of consistent with the Omnibus relationships in response 33). the ACT-setting process. Thus, NMFS Amendment approach for the species in Here, the Omnibus Amendment takes finds the Council’s ACT approach question. the latter approach. The Omnibus wholly consistent with the NS1 NMFS acknowledges that this Amendment rightly describes OY as the guidelines’ intent, and sufficient to accounting exercise to derive total catch long-term average desired yield from a provide the Council, through its contains some uncertainty, particularly fishery; OY is not, and should not be monitoring committees, a robust if the discard estimates utilized to offset confused with, an annual catch limit. mechanism for categorizing and the ACT or to derive the landing limits Yield to a fishery and total catch are not quantifying applicable management before the fishery occurs are variable. interchangeable; it is expected that the uncertainty. However, this is largely why the OY level will vary over time, as Comment 14: Several NGOs stated Council elected to utilize ACTs, so that scientific and management that the Omnibus Amendment is the likelihood of exceeding ACLs if uncertainties, as well as dead discards deficient because it does not establish changes in discard estimates occur are reduced. sufficient bycatch and catch monitoring could be mitigated. This process is NMFS disagrees that the lack of an processes. Within these comments, one consistent with NS1 guidance. While OY process description or specific NGO stated that failure to propose more the Omnibus Amendment establishes a criteria for the monitoring committees’ extensive catch monitoring programs strong process to ensure the likelihood consideration to specify OY is grounds violates NEPA. The commenters claim of exceeding ACLs is infrequent by for disapproving the amendment. The the Omnibus Amendment is fatally requiring consideration of both Omnibus Amendment is designed to flawed, as a result, and must be scientific and management uncertainty, provide flexibility to the Council and disapproved. there are AMs that will be imposed if their committees to adapt their practices Response: NMFS disagrees that the this does occur, a formal process for over time and in response to changing Omnibus Amendment must consider examining performance if ACLs are fishery conditions while meeting its new or additional at-sea or other catch frequently exceeded, and no obligations under the MSA, NS1 monitoring programs. NMFS also requirement that catch be set so that guidelines, and their FMPs. NMFS disagrees that the Omnibus ACL is never exceeded. How robust considers that the Omnibus Amendment Amendment’s approach for assessing discard estimates are also influences processes lend themselves to a total catch is insufficient and does not scientific uncertainty as imprecise transparent, participatory process that agree that the amendment needs to be fishery-related mortality can alter the will allow the public and interested disapproved based on the grounds perception of fishing mortality and parties a mechanism to understand the raised by these comments. The Omnibus stock size. concerns and issues raised by these Amendment considering a reasonable NMFS considers that the process for commenters with respect to OY. range of alternatives to address the catch accounting will be iterative as Comment 13: One NGO stated that the monitoring needs of the fisheries. management under ACLs occurs over Omnibus Amendment lacks required Neither the MSA nor the NS1 guidelines the next few years. The process may ACT control rules and that the process require real-time catch monitoring or well require adjustments, and the for how management uncertainty will be discard controls as contemplated in the descriptive nature of the Omnibus addressed is deficient, as it lacks a comment letters. Currently, such Amendment processes is such that the clearly articulated policy. For these programs are beyond the scope of Council and NMFS have some reasons, the commenter states the existing resources. The Omnibus flexibility to make modifications that amendment must be disapproved and Amendment did not explore these improve the process and management these components revised. options as alternatives, as the such that advancements are realized and Response: NMFS disagrees. The alternatives would have been neither overfishing is prevented. In addition, Council directed the monitoring reasonable nor feasible. should greater monitoring resources or committees and staff to set ACTs on a In lieu of monitoring total catch on a systems become available, the Omnibus sector-specific basis so that the ACTs real-time basis, the Omnibus Amendment does not require would accurately reflect the interannual Amendment contemplates a two-part modification to incorporate the and intrannual variability in the sources examination of the fisheries: Inseason information generated by such systems. of management uncertainty that vary by monitoring of landings (through The data could be utilized as soon as sector. ACTs are not required under the commercial dealer reports for they become operational. NS1 guidelines but are discretionary commercial landings and MRIP for Comment 15: One commenter alleged provisions that can be used as proactive recreational landings) and post-fishing that the Omnibus Amendment fails to AMs. Similarly, ACT control rules are year accounting of dead discards. The satisfy the MSA deadline of establishing not required to be specified in the FMP monitoring committees will consider ACLs and AMs by the 2011 FY, by either the MSA or the NS1 the estimated discards for a given particularly because the Omnibus guidelines. The lack of a single over- specification period (annual or multi- Amendment establishes a process for arching formulaic control rule does not year) and recommend any necessary setting catch, but does not actually weaken the Omnibus Amendment’s reductions for uncertainty associated provide specific limits for the 2011 FY. approaches for addressing management with discard performance to the Council Response: NMFS asserts that the uncertainty through a descriptive to establish ACT(s). The estimated implementation of the final Omnibus process. The sector-specific committees discards will then be removed from the Amendment before the end of the 2011 will consider all sources of management Council-adjusted ACT to set the landing FY satisfies the MSA requirement.

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Comment 16: One commenter stated and discard information is not expected first and second quarters. However, if that the Omnibus Amendment must be to be available until after the first the final data are not available until disapproved because ACT will not leave quarter of 2014. Given that the later in 2014, if there is no ongoing a margin for management uncertainty specification process for 2014 will begin regulatory mechanism to adjust the and that ACTs are inadequate because in mid-2013 and culminate in recreational harvest limit and they do not have AMs. rulemaking for January 1 recreational measures concurrently or Response: NMFS disagrees. The use of implementation the last quarter of 2013, for other as of yet unforeseen reasons, ACTs in the Omnibus Amendment is it will not be possible to make NMFS may have to wait to adjust the wholly consistent with NS1 guidelines. adjustments for any ACL overage when 2015 FY recreational sector ACL during The NS1 guidelines do not require that the initial 2014 specifications are 2014 for an overage accrued in the 2013 ACL be set lower than ABC, nor that established. recreational fishery. ACT be used. ACTs are not required in The Omnibus Amendment retains the The Omnibus Amendment provides the MSA, but only ACLs and existing commercial overage repayments the flexibility in describing how AMs appropriate AMs. The Secretary may that were in place prior to the will function so that NMFS can ensure assume that, if OFL = ABC = ACL = development of ACLs. NMFS routinely that any necessary adjustments will ACT, overfishing will not be prevented, makes adjustments to specifications for occur consistent with the data necessary but the Council’s process will likely known commercial overages and will to evaluate ACL performance. It is include some reductions at either the continue to do so in the Omnibus expected that these data systems and OFL to ABC level for scientific Amendment process. Using the prior delivery timing may improve in the uncertainty, at the ACL to ACT level for example, if known commercial overages future. Should this be the case, the management uncertainty, or both. This are available by October 31, 2013, Omnibus Amendment provides provides a strong system to prevent NMFS can adjust the 2014 commercial flexibility for NMFS to modify the AM overfishing, consistent with the NS1 specifications accordingly through repayment process, as needed, without guidelines. rulemaking. Then, in late 2014, the needing to amend the ACL process. Under the Omnibus Amendment totality of the 2013 commercial FY data NMFS considers that this system will measures, the Council is expected to will be examined to ensure that any function best if ACL overages are reduce catch from the ACL to the ACT additional overages or adjustments avoided by well-established sector to account for management uncertainty. resulting from incorporation of final ACLs, mitigating the need to trigger In years when an ACT is exceeded but commercial landings information, if AMs all together. See response to the ACL is not, the management buffer needed, will be performed for the 2015 may be adjusted in subsequent years, comment 18 for additional information. commercial specifications. The system Comment 18: One NGO commented but no AMs in the form of lb-for-lb is configured so double counting does that the description of the AM process payback of the ACT overage are required. If the ACL is exceeded in any not occur, but, as the example indicates that adjustments, through year, AMs will be invoked as described illustrates, it is possible that commercial overage repayments, will be made in the Omnibus Amendment for the overage repayment AMs may occur 1 through the Council’s specification FMP and species in question. There is full year removed from the FY in which process. The commenter states that the no requirement that lb-for-lb overage they occurred. As stated before, this is Omnibus Amendment must be repayment AMs be triggered if ACTs are not new. Under the Omnibus disapproved for this reason, asserting exceeded. However, there are AMs Amendment, there will also be an that AMs must be automatic and non- operative within the ACT as there will examination of commercial catch data discretionary. be closures when commercial and (i.e., landings + dead discards). This Response: This is an apparent recreational landing limits are reached. process may function similarly to the misunderstanding by the commenter. As As such, ACTs will be used as proactive example or, using the example explained in the response to Comment measures, to reduce the likelihood that timeframe, may occur in 2014 for 17, NMFS, not the Council, will make ACLs will be exceeded. The ACT is, in application to the 2015 FY for a 2013 automatic lb-for-lb overage repayments fact, itself an AM (§ 600.310(f)(2)(v)). catch overage of the ACL (i.e., dead for ACL overages through the Comment 17: One NGO stated that the discard caused overage of the ACL). specification rulemaking. The AMs are Omnibus Amendment must be Recreational fisheries have not been automatic and do not involve discretion disapproved because NMFS’s proposed managed in a system analogous to the on either NMFS’s or the Council’s part. AM measures are not an accurate commercial example provided above. For this reason, the AMs implemented reflection of the Council’s intent. The Landings data are not available in as by the Omnibus Amendment are commenters alleged that recreational timely a fashion as commercial data. consistent with the NS1 guidelines. sector fishery lb-for-lb overage Using the example years previously Comment 19: One commenter stated repayments must occur in the year discussed, NMFS may only be able to that the Omnibus Amendment must be following the overage. evaluate 2013 recreational landings disapproved because it does not Response: The commenter may have through June 2013 during the 2014 consider catch outside its jurisdiction. misinterpreted the description of the specification rulemaking process. While The example cited was summer overage repayment system. The it is possible that a recreational overage flounder, a Council-managed species, operation of the overage repayment may have occurred by that date, historic which is captured and landed in the system is clarified here and is consistent data indicate such an occurrence should Atlantic sea scallop fishery, managed by with the Council’s intent. be rare. As a result, NMFS may not be the New England Fishery Management NMFS attempted to explain, in the able to make informed examination of Council. The commenter alleged that proposed rule, that the data for both 2013 recreational overages until after the Omnibus Amendment fails to commercial and recreational landings the first quarter in 2014. NMFS may consider catch from all sources and, and discards will not likely be available make adjustments to the recreational thus, must be disapproved. The immediately following the FY harvest limit when this information commenter also indicated that the conclusion. For example, when ACLs becomes available, through the Omnibus Amendment failed to are set for the 2013 FY, the final recreational management measures adequately examine alternatives for sub- commercial and recreational landings rulemaking, typically conducted in the ACLs in examples such as the one

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provided. In so doing, the commenter is being implemented consistent with regulations that are consistent with the alleged that the Omnibus Amendment applicable laws. Council-revised information. violates NEPA. Changes and Clarifications From the Summer flounder. In the interim Response: NMFS disagrees with the Proposed Rule between the publication of the NOA and contention that the Omnibus Omnibus Amendment proposed rule, Amendment’s approach for addressing Atlantic bluefish. The process for the 2011 recreational management total catch is fatally flawed. All deriving ACT and Total Allowable measures were finalized (76 FR 38387, federally managed fish landed for Landings (TAL) was clarified. The June 30, 2011). The amendatory commercial sale within the region, proposed rule correctly outlined the language with respect to summer irrespective of whether the fish are process required to derive ACT and TAL flounder recreational management captured in a Council-managed fishery from the recommended ABC; however, measures has been revised from the or in a fishery managed by another additional language on where the proposed rule to reflect the final 2011 Council or the Secretary, will be commercial and recreational allocation recreational management measures. counted toward the total annual shall be addressed was added for a more Relationship of ABC to ACL. NMFS landings for that species. This method clear description. These changes are has modified several erroneous of accounting is not new, and will consistent with both the proposed rule regulations for spiny dogfish, summer continue under the Omnibus and the Omnibus Amendment. flounder, scup, black sea bass, Atlantic Amendment. Similarly, all dead Atlantic mackerel. As was noted in bluefish, surfclam, ocean quahog, and discards of a species such as summer the Omnibus Amendment proposed tilefish that indicated ACL could be set flounder will be attributed to the total rule, the Council took final action on less than or equal to ABC. Several catch estimation of summer flounder. Amendment 11 to the Atlantic public comments were received about Thus, the Omnibus Amendment’s Mackerel, Squids, and Butterfish FMP the Omnibus Amendment’s treatment of system of catch accounting does, in fact, (Amendment 11) in October 2010 and ABC in relation to ACL, specifically if consider catch from all directed fishery NMFS published an Amendment 11 ACL could be reduced from the ABC and other sources. The NS1 guidelines NOA and proposed rule on August 1, level. The Council’s Omnibus do not require the establishment of sub- 2011 (76 FR 45742). While the proposed Amendment EA document contains ACLs for species captured incidentally rule for Amendment 11 does contain a some conflicting language on this in other directed fisheries. See response proposed recreational fishery allocation matter, with language under the to comment 11 for additional for mackerel, the final approval decision discussion of OY (page 27–8) information. and final rule for Amendment 11 contemplating that adjustments based Comment 20: One commenter alleged measures will occur after the final on OY considerations could occur at that the decisions made to implement Omnibus Amendment measures in this either the ACL or ACT level; however, the Omnibus Amendment are arbitrary, rule are effective. Therefore, the final examination of the species-specific capricious, an abuse of discretion, and Omnibus Amendment measures reflect information contained in the document otherwise not in accordance with law the various Atlantic mackerel measures clearly articulates that ACL will be set and, as such, are a violation of the designed to function without a formal equal to ABC. The final regulations Administrative Procedure Act (APA) recreational allocation. If the final issued by this rule correctly indicate and must be set aside as unlawful. The Amendment 11 measures, when that ABC=ACL for all species. commenter did not provide specific approved, contain the recreational Additional discussion of OY occurs in information in support of their general allocation for Atlantic mackerel, the the Comment and Responses section of assertion that the APA had been final rule to implement Amendment 11 this preamble. violated by implementing the Omnibus measures will also modify Omnibus Additional Editorial and Corrective Amendment. Amendment measures, as needed. Changes. Minor changes in language not Response: NMFS disagrees. The Butterfish. In the interim between affecting the content or intent of the Omnibus Amendments measures are in deeming the proposed Omnibus regulations have been made between the accordance with the requirements of Amendment regulations and this final proposed and final rules. These changes NS1 guidelines and the MSA and, as rule, the Council initiated the process to are designed to improve readability, such, are not arbitrary. The Omnibus develop 2012 specifications for the grammar, and punctuation; maintain Amendment measures were not Atlantic Mackerel, Squids, and consistency between FMPs; and impulsively derived or implemented; Butterfish FMP. During this process, the generally improve the final instead, a lengthy, transparent process Council discovered that the method for implementing regulations. was utilized by the Council, its deriving the butterfish cap in the Loligo Classification committees, and the Fishery fishery with respect to the OFL/ABC/ Management Action Team (FMAT) ACT framework was not entirely clear The Administrator, Northeast Region, tasked with developing alternatives and in either the Omnibus Amendment NMFS, determined that the Omnibus measures. NMFS undertook all required document or the proposed regulations. Amendment to the Atlantic Mackerel, elements of announcing the amendment The Council held discussion during its Squids, and Butterfish, Atlantic and proposed rule availability for June 2011 meeting to clarify the intent Bluefish; Spiny Dogfish; Summer review and comment and is responding, of the butterfish cap to be derived as a Flounder, Scup, and Black Sea Bass; the in full, to all relevant comments percentage of the ACT rather than the Surfclam and Ocean Quahog; and the provided on the amendment and ABC. Following this discussion, the Tilefish FMPs is necessary for the proposed measures. Neither the Council Council provided a comment on the conservation and management of the nor NMFS has abused discretion in proposed rule to clarify how the Atlantic mackerel, butterfish; Atlantic following the required development and butterfish cap should be devised under bluefish, spiny dogfish, summer implementation processes required for the OFL/ABC/ACT framework. NMFS flounder, scup, black sea bass, surfclam, the amendment. NMFS is confident that agrees with the Council’s clarification ocean quahog, and the tilefish fisheries the APA has not been violated in any and is implementing, though this final and that it is consistent with the MSA manner and the Omnibus Amendment rule, revisions to the butterfish and other applicable laws.

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This final rule has been determined to specified in § 648.249(a), or engaged in (i) Key features of the stock biology, be not significant for purposes of recreational fishing. the fisheries that exploit it, and/or the Executive Order 12866. * * * * * data collection methods for stock The Chief Council for Regulation of ■ 3. Section 648.20 is revised to read as information are missing from the stock the Department of Commerce certified follows: assessment; to the Chief Council for Advocacy of the (ii) The stock assessment provides Small Business Administration during § 648.20 Mid-Atlantic Fishery Management reference points (which may be the proposed rule stage that this action Council ABC control rules. proxies), stock status, and uncertainties would not have a significant economic The SSC shall review the following associated with each; however, the impact on a substantial number of small criteria, and any additional relevant uncertainty is not fully promulgated entities. The factual basis for the information, to assign managed stocks to through the stock assessment model certification was published in the a specific control rule level when and/or some important sources of proposed rule and is not repeated here. developing ABC recommendations. The uncertainty may be lacking; No comments were received regarding SSC shall review the ABC control rule (iii) The stock assessment provides this certification. As a result, a level assignment for stocks each time an estimates of the precision of biomass, regulatory flexibility analysis was not ABC is recommended. The ABC may be fishing mortality, and reference points; required and none was prepared. recommended for up to 3 years for all and stocks, with the exception of 5 years for (iv) The accuracy of the minimum List of Subjects in 50 CFR Part 648 spiny dogfish. The SSC may deviate fishing mortality threshold and Fisheries, Fishing, Reporting and from the control rule methods or level projected future biomass is estimated in recordkeeping requirements. criteria and recommend an ABC that the stock assessment using ad hoc differs from the result of the ABC methods. Dated: September 20, 2011. (2) Level 2 ABC determination. Stocks John Oliver, control rule calculation; however, any such deviation must include the assigned to Level 2 by the SSC will have Deputy Assistant Administrator for following: A description of why the the ABC derived by applying acceptable Operations, National Marine Fisheries probability of overfishing from the Service. deviation is warranted, description of the methods used to derive the MAFMC’s risk policy found in For the reasons stated in the alternative ABC, and an explanation of § 648.21(a) through (d) to the probability preamble, 50 CFR part 648 is amended how the deviation is consistent with distribution of the OFL. as follows: (c) Level 3 criteria. (1) Assignment of National Standard 2. a stock to Level 3 requires the SSC to (a) Level 1 criteria. (1) Assignment of PART 648—FISHERIES OF THE determine that the stock assessment a stock to Level 1 requires the SSC to NORTHEASTERN UNITED STATES attributes are the same as those for a determine the following: Level 2 assessment listed in ■ (i) All important sources of scientific 1. The authority citation for part 648 § 648.20(d)(1) through (4), except that uncertainty are captured in the stock continues to read as follows: the stock assessment does not contain assessment model; Authority: 16 U.S.C. 1801 et seq. an estimated probability distribution of (ii) The probability distribution of the OFL or the stock assessment provided § 648.13 [Amended] OFL is calculated within the stock OFL probability distribution is judged assessment and provides an adequate ■ by the SSC to not adequately reflect 2a. Section 648.13(i)(2)(iii) is description of the OFL uncertainty; amended by removing ‘‘§ 648.123(a)(2), uncertainty in the OFL estimate. (iii) The stock assessment model (3), and (4)’’ and adding (2) Level 3 ABC determination. Stocks structure and treatment of the data prior ‘‘§ 648.125(a)(2), (3), and (4)’’ in its assigned to Level 3 will have ABC to use in the model includes relevant place. derived by one of the following two details of the biology of the stock, ■ methods: 2b. Section 648.14 is amended as fisheries that exploit the stock, and data follows: (i) The SSC will derive the ABC by collection methods; applying the acceptable probability of ■ a. Paragraph (o)(1)(vi) is amended by (iv) The stock assessment provides the overfishing from the MAFMC’s risk removing ‘‘§§ 648.122 and 648.123(a)’’ following estimates: Fishing mortality policy found in § 648.21(a) through (d) and adding ‘‘§§ 648.124 and 648.125(a)’’ rate (F) at MSY or an alternate to an SSC-adjusted OFL probability in its place. maximum fishing mortality threshold ■ distribution. The SSC will use default b. Paragraph (u)(2)(vi) is amended by (MFMT) to define OFL, biomass, levels of uncertainty in the adjusted removing ‘‘§ 648.291(d)(3) or § 648.291’’ biological reference points, stock status, OFL probability distribution based on and adding ‘‘§ 648.294(d)(3) or OFL, and the respective uncertainties literature review and evaluation of § 648.295’’ in its place. associated with each value; and control rule performance; or, ■ c. Paragraph (u)(2)(vii) is added to (v) No substantial retrospective (ii) If the SSC cannot develop an OFL read as follows: patterns exist in the stock assessment distribution, a default control rule of 75 estimates of fishing mortality, biomass, § 648.14 Prohibitions. percent of the FMSY value will be and recruitment. applied to derive ABC. * * * * * (2) Level 1 ABC determination. Stocks (d) Level 4 criteria. (1) Assignment of (u) * * * assigned to Level 1 by the SSC will have a stock to Level 4 requires the SSC to (2) * * * the ABC derived by applying acceptable determine that none of the criteria for (vii) Land or possess tilefish in or probability of overfishing from the Levels 1–3 found in § 648.20(a) through from the Tilefish Management Unit, on MAFMC’s risk policy found in (c) were met. a vessel issued a valid tilefish permit § 648.21(a) through (d) to the probability (2) Level 4 ABC determination. Stocks under this part, after the incidental distribution of the OFL. assigned to Level 4 will have ABC fishery is closed pursuant to (b) Level 2 criteria. (1) Assignment of derived using control rules developed § 648.245(b), unless fishing under a a stock to Level 2 requires the SSC to on a case-by-case basis by the SSC based valid tilefish IFQ allocation permit as determine the following: on biomass and catch history and

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application of the MAFMC’s risk policy (2) of this section using OFL (1) Loligo and/or Illex squid. (i) The found in § 648.21(a) through (d). distribution, as applicable given life ABC for any fishing year must be either ■ 4. Section 648.21 is revised to read as history determination, results in a more the maximum OY, or a lower amount, follows: restrictive ABC recommendation than if stock assessments indicate that the the calculation of ABC derived from the potential yield is less than the § 648.21 Mid-Atlantic Fishery Management use of FREBUILD at the MAFMC-specified maximum OY. The OYs specified Council risk policy. overfishing risk level as outlined in during a fishing year may not exceed the The risk policy shall be used by the paragraph (a) of this section, the SSC following amounts: SSC in conjunction with the ABC shall recommend to the MAFMC the (A) Loligo—The catch associated with control rules in § 648.20(a) through (d) lower of the ABC values. a fishing mortality rate of FThreshold. to ensure the MAFMC’s preferred (d) If an OFL cannot be determined (B) Illex—Catch associated with a tolerance for the risk of overfishing is from the stock assessment, or if a proxy fishing mortality rate of FMSY. addressed in the ABC development and is not provided by the SSC during the (ii) IOY is a modification of ABC recommendation process. ABC recommendation process, ABC based on social and economic factors. (a) Stocks under a rebuilding plan. levels may not be increased until such The IOY is composed of RSA and DAH. The probability of not exceeding the F time that an OFL has been identified. RSA will be based on requests for necessary to rebuild the stock within the research quota as described in ■ specified time frame (rebuilding F or 5. Section 648.22 is revised to read as paragraph (g) of this section. DAH will follows: FREBUILD) must be at least 50 percent, be set after deduction for RSA, if unless the default level is modified to a § 648.22 Atlantic mackerel, squid, and applicable. higher probability for not exceeding the butterfish specifications. (2) Mackerel—(i) ABC. The MAFMC’s rebuilding F through the formal stock (a) Initial recommended annual SSC shall recommend an ABC to the rebuilding plan. A higher probability of specifications. The Atlantic Mackerel, MAFMC, as described in § 648.20. The not exceeding the rebuilding F would be mackerel ABC is reduced from the OFL expressed as a value greater than 50 Squid, and Butterfish Monitoring Committee (Monitoring Committee) based on an adjustment for scientific percent (e.g., 75-percent probability of uncertainty; the ABC must be less than not exceeding rebuilding F, which shall meet annually to develop and recommend the following specifications or equal to the OFL. corresponds to a 25-percent probability (ii) ACL. The ACL or Domestic ABC for consideration by the Squid, of exceeding rebuilding F). is calculated using the formula ACL = Mackerel, and Butterfish Committee of (b) Stocks not subject to a rebuilding ABC ¥ C, where C is the estimated the MAFMC: plan. (1) For stocks determined by the catch of mackerel in Canadian waters (1) Initial OY (IOY), including SSC to have an atypical life history, the for the upcoming fishing year. maximum probability of overfishing as Research Set-Aside (RSA), DAH, and (iii) OY. OY may not exceed the ACL, informed by the OFL distribution will DAP for Illex squid, which, subject to and must take into account the need to be 35 percent for stocks with a ratio of annual review, may be specified for a prevent overfishing while allowing the period of up to 3 years; biomass (B) to biomass at MSY (BMSY) fishery to achieve OY on a continuing (2) ACL; ACT including RSA, DAH, of 1.0 or higher (i.e., the stock is at BMSY basis. OY is prescribed on the basis of or higher). The maximum probability of DAP; bycatch level of the TALFF, if any; MSY, as reduced by social, economic, overfishing shall decrease linearly from and butterfish mortality cap for the and ecological factors. the maximum value of 35 percent as the Loligo fishery for butterfish; which, (iv) ACT. The Monitoring Committee B/BMSY ratio becomes less than 1.0 (i.e., subject to annual review, may be shall identify and review relevant the stock biomass less than BMSY) until specified for a period of up to 3 years; sources of management uncertainty to the probability of overfishing becomes (3) ACL; commercial ACT, including recommend ACTs for the commercial zero at a B/BMSY ratio of 0.10. An RSA, DAH, DAP; JVP if any; TALFF, if and recreational fishing sectors as part atypical life history is generally defined any; and recreational ACT, including of the specifications process. as one that has greater vulnerability to RSA for mackerel; which, subject to (A) Commercial sector ACT. exploitation and whose characteristics annual review, may be specified for a Commercial ACT is composed of RSA, have not been fully addressed through period of up to 3 years. The Monitoring DAH, dead discards, and TALFF. RSA the stock assessment and biological Committee may also recommend that will be based on requests for research reference point development process. certain ratios of TALFF, if any, for quota as described in paragraph (g) of (2) For stocks determined by the SSC mackerel to purchases of domestic this section. DAH, DAP, and JVP will be to have a typical life history, the harvested fish and/or domestic set after deduction for RSA, if maximum probability of overfishing as processed fish be established in relation applicable, and must be projected by informed by the OFL distribution will to the initial annual amounts. reviewing data from sources specified in be 40 percent for stocks with a ratio of (4) IOY, including RSA, DAH, and paragraph (b) of this section and other B to BMSY of 1.0 or higher (i.e., the stock DAP for Loligo squid, which, subject to relevant data, including past domestic is at BMSY or higher). The maximum annual review, may be specified for a landings, projected amounts of mackerel probability of overfishing shall decrease period of up to 3 years; and necessary for domestic processing and linearly from the maximum value of 40 (5) Inseason adjustment, upward or for joint ventures during the fishing percent as the B/BMSY ratio becomes less downward, to the specifications for year, projected recreational landings, 1.0 (stock biomass less than BMSY) until Loligo squid, as specified in paragraph and other data pertinent for such a the probability of overfishing becomes (e) of this section. projection. The JVP component of DAH zero at a B/BMSY ratio of 0.10. Stocks (b) Guidelines. As the basis for its is the portion of DAH that domestic with typical life history are those not recommendations under paragraph (a) processors either cannot or will not use. meeting the criteria in paragraph (b)(1) of this section, the Monitoring Economic considerations for the of this section. Committee shall review the best establishment of JVP and TALFF (c) For instances in which the available data to recommend include: application of the risk policy specifications consistent with the (1) Total world export potential of approaches in either paragraph (b)(1) or following: mackerel producing countries.

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(2) Total world import demand of MSY, as reduced by social, economic, (12) Recreational season. mackerel consuming countries. and ecological factors. (13) Changes, as appropriate, to the (3) U.S. export potential based on (iv) ACT. The Monitoring Committee Northeast Region SBRM, including the expected U.S. harvests, expected U.S. shall identify and review relevant coefficient of variation (CV) based consumption, relative prices, exchange sources of management uncertainty to performance standard, fishery rates, and foreign trade barriers. recommend the butterfish ACT as part stratification, and/or reports. (4) Increased/decreased revenues to of the specifications process. The ACT (14) Modification of existing the U.S. from foreign fees. is composed of RSA, DAH, dead accountability measures (AMs) utilized (5) Increased/decreased revenues to discards, and bycatch TALFF that is by the Monitoring Committee. U.S. harvesters (with/without joint equal to 0.08 percent of the allocated (d) Annual fishing measures. (1) The ventures). portion of the mackerel TALFF. RSA Squid, Mackerel, and Butterfish (6) Increased/decreased revenues to will be based on requests for research Committee will review the U.S. processors and exporters. quota as described in paragraph (g) of recommendations of the Monitoring (7) Increases/decreases in U.S. this section. DAH and bycatch TALFF Committee. Based on these recommendations and any public harvesting productivity due to will be set after deduction for RSA, if comment received thereon, the Squid, decreases/increases in foreign harvest. applicable. Mackerel, and Butterfish Committee (8) Increases/decreases in U.S. (v) The butterfish mortality cap will must recommend to the MAFMC processing productivity. be based on the ACT and allocated to appropriate specifications and any (9) Potential impact of increased/ the Loligo fishery as follows: Trimester measures necessary to assure that the decreased TALFF on foreign purchases I—65 percent; Trimester II—3.3 percent; specifications will not be exceeded. The of U.S. products and services and U.S.- and Trimester III—31.7 percent. MAFMC will review these caught fish, changes in trade barriers, (vi) Any underages of the butterfish mortality cap for Trimesters I or II will recommendations and, based on the technology transfer, and other recommendations and any public considerations. be applied to Trimester III of the same year, and any overages of the butterfish comment received thereon, must (B) Recreational sector ACT. recommend to the Regional Recreational ACT is composed of RSA, mortality cap for Trimesters I and II will be applied to Trimester III of the same Administrator appropriate dead discards, and the Recreational specifications and any measures Harvest Limit (RHL). year. (vii) Performance review. The Squid, necessary to assure that the ACL will (v) Performance review. The Squid, not be exceeded. The MAFMC’s Mackerel, and Butterfish Committee Mackerel, and Butterfish Committee shall conduct a detailed review of recommendations must include shall conduct a detailed review of supporting documentation, as fishery performance relative to the fishery performance relative to the butterfish ACL in conjunction with appropriate, concerning the mackerel ACL at least every 5 years. environmental, economic, and social (A) If the ACL is exceeded with a review for the mackerel fishery, as outlined in this section. impacts of the recommendations. The frequency greater than 25 percent (i.e., Regional Administrator will review the more than once in 4 years or any two (c) Recommended measures. Based on the review of the data described in recommendations and will publish a consecutive years), the Squid, Mackerel, proposed rule in the Federal Register and Butterfish Monitoring Committee paragraph (b) of this section and requests for research quota as described proposing specifications and any will review fishery performance measures necessary to assure that the information and make recommendations in paragraph (g) of this section, the Monitoring Committee will recommend specifications will not be exceeded and to the MAFMC for changes in measures providing a 30-day public comment intended to ensure ACLs are not to the Squid, Mackerel, and Butterfish Committee the measures from the period. If the proposed specifications exceeded as frequently. differ from those recommended by the (B) The MAFMC may specify more following list that it determines are necessary to ensure that the MAFMC, the reasons for any differences frequent or more specific ACL must be clearly stated and the revised performance review criteria as part of a specifications are not exceeded: (1) RSA set from a range of 0 to 3 specifications must satisfy the criteria stock rebuilding plan following a set forth in this section. The MAFMC’s determination that a stock has become percent of: (i) The IOY for Loligo and/or Illex. recommendations will be available for overfished. (ii) The commercial and/or inspection at the office of the Regional (C) Performance reviews shall not recreational ACT for mackerel. Administrator during the public substitute for annual reviews that occur (iii) The ACT for butterfish. comment period. If the annual to ascertain if prior year ACLs have been (2) Commercial quotas, set after specifications for squid, mackerel, and exceeded, but may be conducted in reductions for research quotas. butterfish are not published in the conjunction with such reviews. (3) The amount of Loligo, Illex, and Federal Register prior to the start of the (3) Butterfish—(i) ABC. The MAFMC’s butterfish that may be retained, fishing year, the previous year’s annual SSC shall recommend an ABC to the possessed, and landed by vessels issued specifications, excluding specifications MAFMC, as described in § 648.20. The the incidental catch permit specified in of TALFF, will remain in effect. The butterfish ABC is reduced from the OFL § 648.4(a)(5)(ii). previous year’s specifications will be based on an adjustment for scientific (4) Commercial minimum fish sizes. superceded as of the effective date of the uncertainty; the ABC must be less than (5) Commercial trip limits. final rule implementing the current or equal to the OFL. (6) Commercial seasonal quotas/ year’s annual specifications. (ii) ACL. The butterfish ACL will be closures for Loligo and Illex. (2) The Regional Administrator will set equal to the butterfish ABC. (7) Minimum mesh sizes. make a final determination concerning (iii) OY. OY may not exceed the ACL, (8) Commercial gear restrictions. the specifications for each species and and must take into account the need to (9) Recreational harvest limit, set after any measures necessary to assure that prevent overfishing while allowing the reductions for research quotas. the specifications will not be exceeded. fishery to achieve OY on a continuing (10) Recreational minimum fish size. After the Regional Administrator basis. OY is prescribed on the basis of (11) Recreational possession limits. considers all relevant data and any

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public comments, notification of the (ii) The NEFSC Director and the ■ 6. Section 648.23 is revised to read as final specifications and any measures NOAA Grants Office will consider each follows: necessary to assure that the panel member’s recommendation, and specifications will not be exceeded and provide final approval of the projects. § 648.23 Mackerel, squid, and butterfish gear restrictions. responses to the public comments will The Regional Administrator may, when be published in the Federal Register. If appropriate, exempt selected vessel(s) (a) Mesh restrictions and exemptions. the final specification amounts differ from regulations specified in each of the (1) Vessels subject to the mesh from those recommended by the respective FMPs through written restrictions in this paragraph (a) may MAFMC, the reason(s) for the notification to the project proponent. not have available for immediate use difference(s) must be clearly stated and (3) The grant awards approved under any net, or any piece of net, with a mesh the revised specifications must be the RFPs will be for the upcoming size smaller than that required. consistent with the criteria set forth in fishing year. Proposals to fund research (2) Owners or operators of otter trawl paragraph (b) of this section. that would start prior to, or that would vessels possessing 1,000 lb (0.45 mt) or (e) Inseason adjustments. The end after the fishing year, will not be more of butterfish harvested in or from specifications established pursuant to eligible for consideration. All research the EEZ may only fish with nets having this section may be adjusted by the and/or compensation trips must be a minimum codend mesh of 3 inches Regional Administrator, in consultation completed within the fishing year for (76 mm) diamond mesh, inside stretch with the MAFMC, during the fishing which the research grant was awarded. measure, applied throughout the codend year by publishing notification in the (4) Research projects will be for at least 100 continuous meshes Federal Register. conducted in accordance with forward of the terminus of the net, or, (f) Distribution of annual Loligo squid provisions approved and provided in an for codends with less than 100 meshes, commercial quota. (1) A commercial Exempted Fishing Permit (EFP) issued the minimum mesh size codend shall be quota for Loligo squid will be allocated by the Regional Administrator. a minimum of one-third of the net, annually into trimester periods, based (5) If a proposal is disapproved by the measured from the terminus of the on the following percentages: Trimester NEFSC Director or the NOAA Grants codend to the headrope. I (January–April)—43.0 percent; Office, or if the Regional Administrator (3) Owners or operators of otter trawl Trimester II (May–August)—17.0 determines that the allocated research vessels possessing Loligo harvested in or percent; and Trimester III (September– quota cannot be utilized by a project, from the EEZ may only fish with nets 1 December)—40.0 percent. the Regional Administrator shall having a minimum mesh size of 2 ⁄8 (2) Any underages of commercial reallocate the unallocated or unused inches (54 mm) during Trimesters I 7 period quota for Trimester I that are amount of research quota to the (Jan–Apr) and III (Sept–Dec), or 1 ⁄8 greater than 25 percent of the Trimester respective commercial and recreational inches (48 mm) during Trimester II I quota will be reallocated to Trimesters fisheries by publication of a notice in (May–Aug), diamond mesh, inside II and III of the same year. The the Federal Register in compliance with stretch measure, applied throughout the reallocation of quota from Trimester I to the Administrative Procedure Act, codend for at least 150 continuous Trimester II is limited, such that the provided: meshes forward of the terminus of the Trimester II quota may only be (i) The reallocation of the unallocated net, or, for codends with less than 150 increased by 50 percent; the remaining or unused amount of research quota is meshes, the minimum mesh size codend portion of the underage will be in accord with National Standard 1, and shall be a minimum of one-third of the reallocated to Trimester III. Any can be available for harvest before the net measured from the terminus of the underages of commercial period quota end of the fishing year for which the codend to the headrope, unless they are for Trimester I that are less than 25 research quota is specified; and fishing consistent with exceptions percent of the Trimester I quota will be (ii) Any reallocation of unallocated or specified in paragraph (b) of this applied to Trimester III of the same year. unused research quota shall be section. Any overages of commercial quota for consistent with the proportional (i) Net obstruction or constriction. Trimesters I and II will be subtracted division of quota between the Owners or operators of otter trawl from Trimester III of the same year. commercial and recreational fisheries in vessels fishing for and/or possessing (g) Research set-aside (RSA) quota. the relevant FMP and allocated to the Loligo shall not use any device, gear, or Prior to the MAFMC’s quota-setting remaining quota periods for the fishing material, including, but not limited to, meetings: year proportionally. nets, net strengtheners, ropes, lines, or (1) NMFS will publish a Request for (6) Vessels participating in approved chafing gear, on the top of the regulated Proposals (RFP) in the Federal Register, research projects may be exempted from portion of a trawl net that results in an consistent with procedures and certain management measures by the effective mesh opening of less than 21⁄8 requirements established by the NOAA Regional Administrator, provided that inches (54 mm) during Trimesters I Grants Office, to solicit proposals from one of the following analyses of the (Jan–Apr) and III (Sept–Dec), or 17⁄8 industry for the upcoming fishing year, impacts associated with the exemptions inches (48 mm) during Trimester II based on research priorities identified is provided: (May–Aug), diamond mesh, inside by the MAFMC. (i) The analysis of the impacts of the stretch measure. ‘‘Top of the regulated (2) NMFS will convene a review requested exemptions is included as portion of the net’’ means the 50 percent panel, including the MAFMC’s part of the annual quota specification of the entire regulated portion of the net Comprehensive Management Committee packages submitted by the MAFMC; or that would not be in contact with the and technical experts, to review (ii) For proposals that require ocean bottom if, during a tow, the proposals submitted in response to the exemptions that extend beyond the regulated portion of the net were laid RFP. scope of the analysis provided by the flat on the ocean floor. However, owners (i) Each panel member will MAFMC, applicants may be required to or operators of otter trawl vessels fishing recommend which research proposals provide additional analysis of impacts for and/or possessing Loligo may use net should be authorized to utilize research of the exemptions before issuance of an strengtheners (covers), splitting straps, quota, based on the selection criteria EFP will be considered, as specified in and/or bull ropes or wire around the described in the RFP. the EFP regulations at § 648.12(b). entire circumference of the codend,

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provided they do not have a mesh available from the Regional Closure Areas, the Georges Bank opening of less than 5 inches (12.7 cm) Administrator upon request): Seasonal Area Closure, and the diamond mesh, inside stretch measure. Conditional Gulf of Maine Rolling For the purposes of this paragraph OCEANOGRAPHER CANYON Closure Area. (a)(3)(i), head ropes are not to be (A) The net is on a reel, its entire considered part of the top of the Point N. lat. W. long. surface is covered with canvas or other regulated portion of a trawl net. similar opaque material, and the canvas OC1 ...... 40°10.0′ 68°12.0′ (ii) Illex fishery. Owners or operators OC2 ...... 40°24.0′ 68°09.0′ or other material is securely bound; of otter trawl vessels possessing Loligo OC3 ...... 40°24.0′ 68°08.0′ (B) The towing wires are detached harvested in or from the EEZ and fishing OC4 ...... 40°10.0′ 67°59.0′ from the doors; and during the months of June, July, August, OC1 ...... 40°10.0′ 68°12.0′ (C) No containment rope, codend and September for Illex seaward of the tripping device, or other mechanism to following coordinates (copies of a map (ii) Lydonia Canyon. No permitted close off the codend is attached to the depicting this area are available from mackerel, squid, or butterfish vessel codend. the Regional Administrator upon may fish with bottom trawl gear in the (2) Scallop dredges. (i) The towing request) are exempt from the Loligo gear Lydonia Canyon or be in the Lydonia wire is detached from the scallop requirements in paragraph (a)(3) of this Canyon unless transiting. Vessels may dredge, the towing wire is completely section, provided they do not have transit this area provided the bottom reeled up onto the winch, the dredge is available for immediate use, as defined trawl gear is stowed in accordance with secured, and the dredge or the winch is in paragraph (b) of this section, any net, the provisions of paragraph (b) of this covered so that it is rendered unusable or any piece of net, with a mesh size section. Lydonia Canyon is defined by for fishing; or 7 straight lines connecting the following (ii) The towing wire is detached from less than 1 ⁄8 inches (48 mm) diamond mesh or any net, or any piece of net, points in the order stated (copies of a the dredge and attached to a bright- with mesh that is rigged in a manner chart depicting this area are available colored poly ball no less than 24 inches that is prohibited by paragraph (a)(3) of from the Regional Administrator upon (60.9 cm) in diameter, with the towing this section, when the vessel is request): wire left in its normal operating position landward of the specified coordinates. (through the various blocks) and either LYDONIA CANYON is wound back to the first block (in the Point N. lat. W. long. gallows) or is suspended at the end of Point N. lat. W. long. the lifting block where its retrieval does M1 ...... 43°58.0′ 67°22.0′ ° ′ ° ′ not present a hazard to the crew and M2 ...... 43°50.0′ 68°35.0′ LC1 ...... 40 16.0 67 34.0 ° ′ ° ′ where it is readily visible from above. M3 ...... 43°30.0′ 69°40.0′ LC2 ...... 40 16.0 67 42.0 ° ′ ° ′ (3) Hook gear (other than pelagic). All M4 ...... 43°20.0′ 70°00.0′ LC3 ...... 40 20.0 67 43.0 ° ′ ° ′ anchors and buoys are secured and all M5 ...... 42°45.0′ 70°10.0′ LC4 ...... 40 27.0 67 40.0 ° ′ ° ′ LC5 ...... 40°27.0′ 67°38.0′ hook gear, including jigging machines, M6 ...... 42 13.0 69 55.0 ° ′ ° ′ M7 ...... 41°00.0′ 69°00.0′ LC1 ...... 40 16.0 67 34.0 is covered. M8 ...... 41°45.0′ 68°15.0′ (4) Sink gillnet gear. All nets are M9 ...... 42°10.0′ 67°10.0′ (b) Definition of ‘‘not available for covered with canvas or other similar M10 ...... 41°18.6′ 66°24.8′ immediate use.’’ Gear that is shown not material and lashed or otherwise M11 ...... 40°55.5′ 66°38.0′ to have been in recent use and that is securely fastened to the deck or rail, and M12 ...... 40°45.5′ 68°00.0′ stowed in conformance with one of the all buoys larger than 6 inches (15.24 cm) M13 ...... 40°37.0′ 68°00.0′ following methods is considered to be in diameter, high flyers, and anchors are M14 ...... 40°30.0′ 69°00.0′ not available for immediate use: disconnected. ° ′ ° ′ M15 ...... 40 22.7 69 00.0 (1) Nets—(i) Below-deck stowage. (A) (5) Other methods of stowage. Any M16 ...... 40°18.7′ 69°40.0′ The net is stored below the main ° ′ ° ′ other method of stowage authorized in M17 ...... 40 21.0 71 03.0 working deck from which it is deployed M18 ...... 39°41.0′ 72°32.0′ writing by the Regional Administrator ° ′ ° ′ and retrieved; and subsequently published in the M19 ...... 38 47.0 73 11.0 (B) The towing wires, including the M20 ...... 38°04.0′ 74°06.0′ Federal Register. M21 ...... 37°08.0′ 74°46.0′ leg wires, are detached from the net; and (c) Mesh obstruction or constriction. M22 ...... 36°00.0′ 74°52.0′ (C) It is fan-folded (flaked) and bound The owner or operator of a fishing M23 ...... 35°45.0′ 74°53.0′ around its circumference. vessel shall not use any mesh M24 ...... 35°28.0′ 74°52.0′ (ii) On-deck stowage. (A) The net is construction, mesh configuration, or fan-folded (flaked) and bound around its other means that effectively decreases circumference; the mesh size below the minimum mesh (4) Mackerel, squid, and butterfish (B) It is securely fastened to the deck size, except that a liner may be used to bottom trawling restricted areas. (i) or rail of the vessel; and Oceanographer Canyon. No permitted (C) The towing wires, including the close the opening created by the rings in mackerel, squid, or butterfish vessel leg wires, are detached from the net. the aftermost portion of the net, may fish with bottom trawl gear in the (iii) On-reel stowage. (A) The net is on provided the liner extends no more than Oceanographer Canyon or be in the a reel, its entire surface is covered with 10 meshes forward of the aftermost Oceanographer Canyon unless canvas or other similar opaque material, portion of the net. The inside webbing transiting. Vessels may transit this area and the canvas or other material is of the codend shall be the same provided the bottom trawl gear is securely bound; circumference or less than the outside stowed in accordance with the (B) The towing wires are detached webbing (strengthener). In addition, the provisions of paragraph (b) of this from the net; and inside webbing shall not be more than section. Oceanographer Canyon is (C) The codend is removed and stored 2 ft (61 cm) longer than the outside defined by straight lines connecting the below deck. webbing. following points in the order stated (iv) On-reel stowage for vessels ■ 7. Section 648.24 is revised to read as (copies of a chart depicting this area are transiting the Gulf of Maine Rolling follows:

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§ 648.24 Fishery closures and landings are responsible for the overage, fishing year in which the deductions accountability measures. then landings in excess of the RHL will will be made. (a) Fishery closure procedures—(1) be deducted from the RHL for the (d) Notification. Upon determining Loligo. NMFS shall close the directed following year, as a single-year that a closure is necessary, the Regional fishery in the EEZ for Loligo when the adjustment. Administrator will notify, in advance of Regional Administrator projects that 90 (5) Non-landing AMs, by sector. In the the closure, the Executive Directors of percent of the Loligo quota is harvested event that the ACL is exceeded, and that the MAFMC, NEFMC, and SAFMC; mail in Trimesters I and II, and when 95 the overage has not been accommodated notification of the closure to all holders percent of the Loligo DAH has been through other landing-based AMs, but is of mackerel, squid, and butterfish harvested in Trimester III. The closure attributable to either the commercial or fishery permits at least 72 hours before of the directed fishery shall be in effect recreational sector (such as research the effective date of the closure; provide for the remainder of that fishing period, quota overages, dead discards in excess adequate notice of the closure to with incidental catches allowed as of those otherwise accounted for in recreational participants in the fishery; specified at § 648.26. management uncertainty, or other non- and publish notification of closure in (i) If the Regional Administrator landing overages), then the exact the Federal Register. determines that the Trimester I closure amount, in pounds, by which the sector ■ 8. Section 648.25 is revised to read as threshold has been under-harvested by ACT was exceeded will be deducted follows: 25 percent or more, then the amount of from the following year, as a single-year the underharvest shall be reallocated to adjustment. § 648.25 Atlantic Mackerel, squid, and Trimester II and Trimester III, as (6) Mackerel ACL overage evaluation. butterfish framework adjustments to specified at § 648.22(f)(2), through The ACL will be evaluated based on a management measures. notice in the Federal Register. single-year examination of total catch (a) Within season management action. (ii) [Reserved] (landings and discards). Both landings The MAFMC may, at any time, initiate (2) Illex. NMFS shall close the and dead discards will be evaluated in action to add or adjust management directed Illex fishery in the EEZ when determining if the ACL has been measures within the Atlantic Mackerel, the Regional Administrator projects that exceeded. NMFS shall make Squid, and Butterfish FMP if it finds 95 percent of the Illex DAH is harvested. determinations about overages and that action is necessary to meet or be The closure of the directed fishery shall implement any changes to the ACL, in consistent with the goals and objectives be in effect for the remainder of that accordance with the Administrative of the FMP. fishing period, with incidental catches Procedure Act, through notification in (1) Adjustment process. The MAFMC allowed as specified at § 648.26. the Federal Register, by March 31 of the shall develop and analyze appropriate (b) Mackerel AMs. (1) Mackerel fishing year in which the deductions management actions over the span of at commercial sector EEZ closure. NMFS will be made. least two MAFMC meetings. The shall close the commercial mackerel (c) Butterfish AMs—(1) Butterfish EEZ MAFMC must provide the public with fishery in the EEZ when the Regional closure. NMFS shall close the directed advance notice of the availability of the Administrator projects that 90 percent butterfish fishery in the EEZ when the recommendation(s), appropriate of the mackerel DAH is harvested, if Regional Administrator projects that 80 justification(s) and economic and such a closure is necessary to prevent percent of the butterfish DAH has been biological analyses, and the opportunity the DAH from being exceeded. The harvested. The closure of the directed to comment on the proposed closure of the commercial fishery shall fishery shall be in effect for the adjustment(s) at the first meeting and be in effect for the remainder of that remainder of that fishing year, with prior to and at the second MAFMC fishing year, with incidental catches incidental catches allowed as specified meeting. The MAFMC’s allowed as specified in § 648.26. When at § 648.26. recommendations on adjustments or the Regional Administrator projects that (2) Butterfish ACL overage repayment. additions to management measures the DAH for mackerel shall be landed, If the butterfish ACL is exceeded, then must come from one or more of the NMFS shall close the commercial catch in excess of the ACL will be following categories: Adjustments mackerel fishery in the EEZ, and the deducted from the ACL the following within existing ABC control rule levels; incidental catches specified for year, as a single-year adjustment. adjustments to the existing MAFMC risk mackerel in § 648.26 will be prohibited. (3) Butterfish mortality cap on the policy; introduction of new AMs, (2) Mackerel commercial landings Loligo fishery. NMFS shall close the including sub-ACTs; minimum fish size; overage repayment. If the mackerel ACL directed fishery in the EEZ for Loligo maximum fish size; gear restrictions; is exceeded, and commercial fishery when the Regional Administrator gear requirements or prohibitions; landings are responsible for the overage, projects that 80 percent of the butterfish permitting restrictions, recreational then landings in excess of the DAH will mortality cap has been harvested in possession limit; recreational seasons; be deducted from the DAH the Trimester I, and/or when 90 percent of closed areas; commercial seasons; following year, as a single-year the butterfish mortality cap has been commercial trip limits; commercial adjustment to the DAH. harvested in Trimester III. quota system, including commercial (3) Mackerel recreational sector EEZ (4) Butterfish ACL overage evaluation. quota allocation procedure and possible closure. NMFS shall close the The ACL will be evaluated based on a quota set-asides to mitigate bycatch; recreational mackerel fishery in the EEZ single-year examination of total catch recreational harvest limit; annual when the Regional Administrator (landings and discards). Both landings specification quota setting process; FMP determines that recreational landings and dead discards will be evaluated in Monitoring Committee composition and have exceeded the RHL. This determining if the ACL has been process; description and identification determination shall be based on exceeded. NMFS shall make of EFH (and fishing gear management observed landings and will not utilize determinations about overages and measures that impact EFH); description projections of future data. implement any changes to the ACL, in and identification of habitat areas of (4) Mackerel recreational landings accordance with the Administrative particular concern; overfishing overage repayment. If the mackerel ACL Procedure Act, through notification in definition and related thresholds and is exceeded, and the recreational fishery the Federal Register, by March 31 of the targets; regional gear restrictions;

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regional season restrictions (including of this section, the measures will be vessel has been issued an Illex option to split seasons); restrictions on issued as a final rule in the Federal incidental catch permit (as specified at vessel size (LOA and GRT) or shaft Register. § 648.4(a)(5)(ii)), then it may not fish for, horsepower; changes to the Northeast (ii) If NMFS concurs with the possess, or land more than 10,000 lb Region SBRM (including the CV-based MAFMC’s recommended management (4.54 mt) of Illex per trip at any time, performance standard, the means by measures and determines that the and may only land Illex once on any which discard data are collected/ recommended management measures calendar day. obtained, fishery stratification, reports, should be published first as a proposed (d) Butterfish. (1) During a closure of and/or industry-funded observers or rule, the measures will be published as the directed fishery for butterfish that observer set-aside programs); any other a proposed rule in the Federal Register. occurs prior to October 1, vessels may management measures currently After additional public comment, if not fish for, possess, or land more than included in the FMP, set aside quota for NMFS concurs with the MAFMC 250 lb (0.11 mt) of butterfish per trip at scientific research, regional recommendation, the measures will be any time, and may only land butterfish management, and process for inseason issued as a final rule in the Federal once on any calendar day, which is adjustment to the annual specification. Register. defined as the 24-hr period beginning at Measures contained within this list that (iii) If NMFS does not concur, the 0001 hours and ending at 2400 hours. require significant departures from MAFMC will be notified in writing of During a closure of the directed fishery previously contemplated measures or the reasons for the non-concurrence. for butterfish that occurs on or after that are otherwise introducing new (4) Emergency actions. Nothing in this October 1, vessels may not fish for, concepts may require amendment of the section is meant to derogate from the possess, or land more than 600 lb (0.27 FMP instead of a framework adjustment. authority of the Secretary to take mt) of butterfish per trip at any time, (2) MAFMC recommendation. After emergency action under section 305(e) and may only land butterfish once on developing management actions and of the Magnuson-Stevens Act. any calendar day. If a vessel has been receiving public testimony, the MAFMC (b) [Reserved] issued a butterfish incidental catch shall make a recommendation to the ■ 9. Section 648.26 is revised to read as permit (as specified at § 648.4(a)(5)(ii)), Regional Administrator. The MAFMC’s follows: it may not fish for, possess, or land more recommendation must include than 600 lb (0.27 mt) of butterfish per supporting rationale, if management § 648.26 Mackerel, squid, and butterfish trip at any time, and may only land possession restrictions. measures are recommended, an analysis butterfish once on any calendar day, of impacts, and a recommendation to (a) Atlantic mackerel. During a unless the directed fishery for butterfish the Regional Administrator on whether closure of the commercial Atlantic closes prior to October 1, then a vessel to issue the management measures as a mackerel fishery that occurs prior to that has been issued a butterfish final rule. If the MAFMC recommends June 1, vessels may not fish for, possess, incidental catch permit may not fish for, that the management measures should or land more than 20,000 lb (9.08 mt) of possess, or land more than 250 lb (0.11 be issued as a final rule, the MAFMC Atlantic mackerel per trip at any time, mt) of butterfish per trip at any time, must consider at least the following and may only land Atlantic mackerel and may only land butterfish once on factors, and provide support and once on any calendar day, which is any calendar day. analysis for each factor considered: defined as the 24-hr period beginning at (2) A vessel issued a butterfish (i) Whether the availability of data on 0001 hours and ending at 2400 hours. moratorium permit (as specified at which the recommended management During a closure of the commercial § 648.4(a)(5)(i)) may not fish for, measures are based allows for adequate fishery for mackerel that occurs on or possess, or land more than 5,000 lb time to publish a proposed rule, and after June 1, vessels may not fish for, (2.27 mt) of butterfish per trip at any whether the regulations would have to possess, or land more than 50,000 lb time, and may only land butterfish once be in place for an entire harvest/fishing (22.7 mt) of Atlantic mackerel per trip on any calendar day, which is defined season. at any time, and may only land Atlantic as the 24-hr period beginning at 0001 (ii) Whether there has been adequate mackerel once on any calendar day. hours and ending at 2400 hours. notice and opportunity for participation (b) Loligo. During a closure of the ■ 10. Section 648.27 is added to subpart by the public and members of the directed fishery for Loligo, vessels may B read as follows: affected industry in the development of not fish for, possess, or land more than the recommended management 2,500 lb (1.13 mt) of Loligo per trip at § 648.27 Observer requirements for the measures. any time, and may only land Loligo once Loligo fishery. (iii) Whether there is an immediate on any calendar day, which is defined (a) A vessel issued a Loligo and need to protect the resource. as the 24-hr period beginning at 0001 butterfish moratorium permit, as (iv) Whether there will be a hours and ending at 2400 hours. If a specified at § 648.4(a)(5)(i), must, for the continuing evaluation of management vessel has been issued a Loligo purposes of observer deployment, have measures following their incidental catch permit (as specified at a representative provide notice to NMFS implementation as a final rule. § 648.4(a)(5)(ii)), then it may not fish for, of the vessel name, vessel permit (3) NMFS action. If the MAFMC’s possess, or land more than 2,500 lb number, contact name for coordination recommendation includes adjustments (1.13 mt) of Loligo per trip at any time of observer deployment, telephone or additions to management measures and may only land Loligo once on any number or e-mail address for contact; and, after reviewing the MAFMC’s calendar day. and the date, time, port of departure, recommendation and supporting (c) Illex. During a closure of the and approximate trip duration, at least information: directed fishery for Illex, vessels may 72 hr, but no more than 10 days, prior (i) If NMFS concurs with the not fish for, possess, or land more than to beginning any fishing trip, unless it MAFMC’s recommended management 10,000 lb (4.54 mt) of Illex per trip at complies with the possession measures and determines that the any time, and may only land Illex once restrictions in paragraph (c) of this recommended management measures on any calendar day, which is defined section. should be issued as a final rule based on as the 24-hr period beginning at 0001 (b) A vessel that has a representative the factors specified in paragraph (a)(2) hours and ending at 2400 hours. If a provide notification to NMFS as

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described in paragraph (a) of this (1) Sectors. The surfclam and ocean (2) Periodicity. ACTs may be section may only embark on a Loligo quahog ACLs will be established established on an annual basis for up to trip without an observer if a vessel consistent with the guidelines contained 3 years at a time, dependent on whether representative has been notified by in the Atlantic Surfclam and Ocean the SSC provides single or multiple year NMFS that the vessel has received a Quahog FMP. The ACL for ocean ABC recommendations. waiver of the observer requirement for quahog will then be allocated to the (b) Performance review. The MAFMC that trip. NMFS shall notify a vessel Maine and non-Maine components of staff shall conduct a detailed review of representative whether the vessel must the fishery according to the allocation fishery performance relative to ACTs in carry an observer, or if a waiver has guidelines of the Atlantic Surfclam and conjunction with any ACL performance been granted, for the specified Loligo Ocean Quahog FMP as specified in review, as outlined in § 648.70(b)(1) trip, within 24 hr of the vessel § 648.78(b). through (3). representative’s notification of the (2) Periodicity. The surfclam and ■ 13. Section 648.72 is revised to read prospective Loligo trip, as specified in ocean quahog ACLs may be established as follows: paragraph (a) of this section. Any on an annual basis for up to 3 years at request to carry an observer may be a time, dependent on whether the SSC § 648.72 Surfclam and ocean quahog waived by NMFS. A vessel that fishes provides single or multiple year ABC specifications. with an observer waiver confirmation recommendations. (a) Establishing catch quotas. The number that does not match the Loligo (b) Performance review. The MAFMC amount of surfclams or ocean quahogs trip plan that was called in to NMFS is staff shall conduct a detailed review of that may be caught annually by fishing prohibited from fishing for, possessing, the fishery performance relative to the vessels subject to these regulations will harvesting, or landing Loligo except as ACLs at least every 5 years. be specified for up to a 3-year period by specified in paragraph (c) of this (1) If the surfclam or the ocean quahog the Regional Administrator. section. Confirmation numbers for trip ACL is exceeded with a frequency Specifications of the annual quotas will notification calls are only valid for 48 hr greater than 25 percent (i.e., more than be accomplished in the final year of the from the intended sail date. once in 4 years or any 2 consecutive quota period, unless the quotas are (c) A vessel issued a Loligo and years), the MAFMC staff will review modified in the interim pursuant to butterfish moratorium permit, as fishery performance information and paragraph (b) of this section. The specified in § 648.4(a)(5)(i), that does make recommendations to the MAFMC amount of surfclams available for not have a representative provide the for changes in measures intended to harvest annually must be specified trip notification required in paragraph ensure the ACL is not exceeded as within the range of 1.85 to 3.4 million (a) of this section is prohibited from frequently. bu (98.5 to 181 million L). The amount fishing for, possessing, harvesting, or (2) The MAFMC may specify more of ocean quahogs available for harvest landing 2,500 lb (1.13 mt) or more of frequent or more specific ACL annually must be specified within the Loligo per trip at any time, and may performance review criteria as part of a range of 4 to 6 million bu (213 to 319.4 only land Loligo once on any calendar stock rebuilding plan following a million L). Quotas for surfclams and day, which is defined as the 24-hr determination that a stock has become ocean quahogs may be specified below period beginning at 0001 hours and overfished. these ranges if the ABC ending at 2400 hours. (3) Performance reviews shall not recommendation of the SSC limits the (d) If a vessel issued a Loligo and substitute for annual reviews that occur ACL to a value less than the minimum butterfish moratorium permit, as to ascertain if prior year ACLs have been of the range indicated. specified in § 648.4(a)(5)(i), intends to exceeded, but may be conducted in (1) Quota reports. On an annual basis, possess, harvest, or land 2,500 lb (1.13 conjunction with such reviews. MAFMC staff will produce and provide mt) or more of Loligo per trip or per ■ 12. Section 648.71 is revised to read to the MAFMC an Atlantic surfclam and calendar day, has a representative notify as follows: NMFS of an upcoming trip, is selected ocean quahog annual quota by NMFS to carry an observer, and then § 648.71 Surfclam and ocean quahog recommendation paper based on the cancels that trip, the representative is Annual Catch Targets (ACT). ABC recommendation of the SSC, the required to provide notice to NMFS of (a) The MAFMC staff shall identify latest available stock assessment report the vessel name, vessel permit number, and review the relevant sources of prepared by NMFS, data reported by contact name for coordination of management uncertainty to recommend harvesters and processors, and other observer deployment, and telephone ACTs to the MAFMC as part of the relevant data, as well as the information number or e-mail address for contact, surfclam and ocean quahog contained in paragraphs (a)(1)(i) through and the intended date, time, and port of specification process. The MAFMC staff (vi) of this section. Based on that report, departure for the cancelled trip prior to recommendations shall identify the and at least once prior to August 15 of the planned departure time. In addition, specific sources of management the year in which a multi-year annual if a trip selected for observer coverage uncertainty that were considered, quota specification expires, the is cancelled, then that vessel is required technical approaches to mitigating these MAFMC, following an opportunity for to carry an observer, provided an sources of uncertainty, and any public comment, will recommend to the observer is available, on its next trip. additional relevant information Regional Administrator annual quotas and estimates of DAH and DAP within ■ 11. Section 648.70 is revised to read considered in the ACT recommendation the ranges specified for up to a 3-year as follows: process. (1) Sectors. The surfclam ACT and the period. In selecting the annual quotas, § 648.70 Surfclam and ocean quahog sum of the Maine and non-Maine ocean the MAFMC shall consider the current Annual Catch Limit (ACL). quahog ACTs shall be less than or equal stock assessments, catch reports, and (a) The MAFMC staff shall to the ACL for the corresponding stock. other relevant information concerning: recommend to the MAFMC ACLs for the The MAFMC staff shall recommend any (i) Exploitable and spawning biomass surfclam and ocean quahog fisheries, reduction in catch necessary to address relative to the OY. which shall be equal to the ABCs management uncertainty, consistent (ii) Fishing mortality rates relative to recommended by the SSC. with paragraph (a) of this section. the OY.

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(iii) Magnitude of incoming § 648.73 Surfclam and ocean quahog the Federal Register, charge a permit fee recruitment. Accountability Measures. before issuance of the permit to recover (iv) Projected effort and (a) Commercial ITQ fishery. (1) If the administrative expenses. Failure to pay corresponding catches. ACL for surfclam or ocean quahog is the fee will preclude issuance of the exceeded, and the overage can be permit. (v) Geographical distribution of the attributed to one or more ITQ allocation (b) Transfers—(1) Allocation catch relative to the geographical holders, the full amount of the overage percentage. Subject to the approval of distribution of the resource. will be deducted from the appropriate the Regional Administrator, part or all (vi) Status of areas previously closed ITQ allocation in the following fishing of an allocation percentage may be to surfclam fishing that are to be opened year. transferred in the year in which the during the year and areas likely to be (2) Any amount of an ACL overage transfer is made, to any person or entity closed to fishing during the year. that cannot be otherwise attributed to an eligible to own a documented vessel (2) Public review. Based on the ITQ allocation holder will be deducted under the terms of 46 U.S.C. 12102(a). recommendation of the MAFMC, the from the appropriate ACL in the Approval of a transfer by the Regional Regional Administrator shall publish following fishing year. Administrator and for a new allocation (b) Maine mahogany quahog fishery. proposed surfclam and ocean quahog permit reflecting that transfer may be If the ocean quahog ACL is exceeded, quotas in the Federal Register. The requested by submitting a written and the Maine mahogany quahog fishery Regional Administrator shall consider application for approval of the transfer is responsible for the overage, than the and for issuance of a new allocation public comments received, determine Maine fishery ACT shall be reduced in the appropriate annual quotas, and permit to the Regional Administrator at the following year by an amount equal least 10 days before the date on which publish the annual quotas in the to the ACL overage. Federal Register. The quota shall be set the applicant desires the transfer to be ■ 15. Section 648.74 is revised to read at that amount that is most consistent effective, in the form of a completed as follows: with the objectives of the Atlantic transfer log supplied by the Regional Administrator. The transfer is not Surfclam and Ocean Quahog FMP. The § 648.74 Annual individual allocations. effective until the new holder receives Regional Administrator may set quotas (a) General. (1) Each fishing year, the at quantities different from the a new or revised annual allocation Regional Administrator shall determine permit from the Regional Administrator. MAFMC’s recommendations only if he/ the initial allocation of surfclams and she can demonstrate that the MAFMC’s An application for transfer may not be ocean quahogs for the next fishing year made between October 15 and recommendations violate the national for each allocation holder owning an standards of the Magnuson-Stevens Act December 31 of each year. allocation pursuant to paragraph (a)(2) (2) Cage tags. Cage tags issued or the objectives of the Atlantic of this section. For each species, the pursuant to § 648.77 may be transferred Surfclam and Ocean Quahog FMP or initial allocation for the next fishing at any time, and in any amount subject other applicable law. year is calculated by multiplying the to the restrictions and procedure (b) Interim quota modifications. Based allocation percentage owned by each specified in paragraph (b)(1) of this upon information presented in the quota allocation owner as of the last day of the section; provided that application for reports described in paragraph (a)(1) of previous fishing year in which such cage tag transfers may be made at this section, the MAFMC may allocation owners are permitted to any time before December 10 of each recommend to the Regional permanently transfer allocation year. The transfer is effective upon the Administrator a modification to the percentage pursuant to paragraph (b) of receipt by the transferee of written annual quotas that have been specified this section (i.e., October 15 of every authorization from the Regional for a 3-year period and any estimate of year), by the quota specified by the Administrator. DAH or DAP made in conjunction with Regional Administrator pursuant to (3) Review. If the Regional such specifications within the ranges § 648.72. The total number of bushels of Administrator determines that the specified in paragraph (a)(1) of this allocation shall be divided by 32 to applicant has been issued a Notice of section. Based upon the MAFMC’s determine the appropriate number of Permit Sanction for a violation of the recommendation, the Regional cage tags to be issued or acquired under Magnuson-Stevens Act that has not been Administrator may propose surfclam § 648.77. Amounts of allocation of 0.5 resolved, he/she may decline to approve and or ocean quahog quotas that differ cages or smaller created by this division such transfer pending resolution of the from the annual quotas specified for the shall be rounded downward to the matter. current 3-year period. Such nearest whole number, and amounts of ■ 16. Section 648.75 is revised to read modification shall be in effect for a allocation greater than 0.5 cages created as follows: period of up to 3 years, unless further by this division shall be rounded modified. Any interim modification upward to the nearest whole number, so § 648.75 Shucking at sea and minimum shall follow the same procedures for that allocations are specified in whole surfclam size. establishing the annual quotas that are cages. These allocations shall be made (a) Shucking at sea—(1) Observers. specified for up to a 3-year period. in the form of an allocation permit (i) The Regional Administrator may (c) Annual quotas. The annual quotas specifying the allocation percentage and allow the shucking of surfclams or for surfclams and ocean quahogs will the allocation in cages and cage tags for ocean quahogs at sea if he/she remain effective unless revised pursuant each species. An allocation permit is determines that an observer carried to this section. At the end of a multiyear only valid for the entity for which it is aboard the vessel can measure quota period, NMFS will issue issued. Such permits shall be issued on accurately the total amount of surfclams notification in the Federal Register if or before December 15, to allow and ocean quahogs harvested in the the previous year’s specifications will allocation owners to purchase cage tags shell prior to shucking. (ii) Any vessel owner may apply in not be changed. from a vendor specified by the Regional Administrator pursuant to § 648.77(b). writing to the Regional Administrator to ■ 14. Section 648.73 is revised to read (2) The Regional Administrator may, shuck surfclams or ocean quahogs at as follows: after publication of a fee notification in sea. The application shall specify: Name

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and address of the applicant; permit surfclams has been reduced because of (i) Sixty percent or more are smaller number of the vessel; method of density dependent factors. than 4.5 inches (11.43 cm); and calculating the amount of surfclams or (4) Measurement. Length is measured (ii) Not more than 15 percent are ocean quahogs harvested in the shell; at the longest dimension of the surfclam larger than 5.5 inches (13.97 cm) in size. vessel dimensions and shell. (2) Reopening. The Regional accommodations; and length of fishing ■ 17. Section 648.76 is revised to read Administrator may reopen areas or parts trip. as follows: of areas closed under paragraph (b)(1) of (iii) The Regional Administrator shall this section if he/she determines, based provide an observer to any vessel owner § 648.76 Closed areas. on survey cruises or other information, whose application is approved. The (a) Areas closed because of that: owner shall pay all reasonable expenses environmental degradation. Certain (i) The average length of the dominant of carrying the observer on board the areas are closed to all surfclam and (in terms of weight) size class in the area vessel. ocean quahog fishing because of adverse to be reopened is equal to or greater (iv) Any observer shall certify at the environmental conditions. These areas than 4.75 inches (12.065 cm); or end of each trip the amount of surfclams will remain closed until the Regional (ii) The yield or rate of growth of the or ocean quahogs harvested in the shell Administrator determines that the dominant shell-length class in the area by the vessel. Such certification shall be adverse environmental conditions no to be reopened would be significantly made by the observer’s signature on the longer exist. If additional areas are enhanced through selective, controlled, daily fishing log required by § 648.7. identified by the Regional Administrator or limited harvest of surfclams in the (2) Conversion factor. (i) Based on the as being contaminated by the area. recommendation of the MAFMC, the introduction or presence of hazardous (c) Procedure. (1) The Regional Regional Administrator may allow materials or pollutants, they may be Administrator may hold a public shucking at sea of surfclams or ocean closed by the Regional Administrator in hearing on the proposed closure or quahogs, with or without an observer, if accordance with paragraph (c) of this reopening of any area under paragraph he/she determines a conversion factor section. The areas closed are: (a) or (b) of this section. The Regional for shucked meats to calculate (1) Boston Foul Ground. The waste Administrator shall publish notification accurately the amount of surfclams or disposal site known as the ‘‘Boston Foul in the Federal Register of any proposed ocean quahogs harvested in the shell. Ground’’ and located at 42°25′36″ N. area closure or reopening, including any (ii) The Regional Administrator shall lat., 70°35′00″ W. long., with a radius of restrictions on harvest in a reopened publish notification in the Federal 1 nm (1.61 km) in every direction from area. Comments on the proposed closure Register specifying a conversion factor, that point. or reopening must be submitted to the together with the data used in its (2) New York Bight. The polluted area Regional Administrator within 30 days calculation, for a 30-day comment and waste disposal site known as the after publication. The Regional period. After consideration of the public ‘‘New York Bight’’ and located at Administrator shall consider all comments and any other relevant data, 40°25′04″ N. lat., 73°42′38″ W. long., comments and publish the final the Regional Administrator may publish and with a radius of 6 nm (9.66 km) in notification of closure or reopening, and final notification in the Federal Register every direction from that point, any restrictions on harvest, in the specifying the conversion factor. extending further northwestward, Federal Register. Any adjustment to (iii) If the Regional Administrator westward and southwestward between a harvest restrictions in a reopened area makes the determination specified in line from a point on the arc at 40°31′00″ shall be made by notification in the paragraph (b)(1) of this section, he/she N. lat., 73°43′38″ W. long., directly Federal Register. The Regional may authorize the vessel owner to shuck northward toward Atlantic Beach Light Administrator shall send notice of any surfclams or ocean quahogs at sea. Such in New York to the limit of the state action under this paragraph (c)(1) to authorization shall be in writing and be territorial waters of New York; and a each surfclam and ocean quahog carried aboard the vessel. line from the point on the arc at processor and to each surfclam and (b) Minimum surfclam size—(1) 40°19′48″ N. lat., 73°45′42″ W. long., to ocean quahog permit holder. Minimum length. The minimum length a point at the limit of the state territorial (2) If the Regional Administrator for surfclams is 4.75 inches (12.065 cm). waters of New Jersey at 40°14′00″ N. lat., determines, as the result of testing by (2) Determination of compliance. No 73°55′42″ W. long. state, Federal, or private entities, that a more than 50 surfclams in any cage may (3) 106 Dumpsite. The toxic industrial closure of an area under paragraph (a) be less than 4.75 inches (12.065 cm) in site known as the ‘‘106 Dumpsite’’ and of this section is necessary to prevent length. If more than 50 surfclams in any located between 38°40′00″ and any adverse effects fishing may have on inspected cage of surfclams are less than 39°00′00″ N. lat., and between 72°00′00″ the public health, he/she may close the 4.75 inches (12.065 cm) in length, all and 72°30′00″ W. long. area for 60 days by publication of cages landed by the same vessel from (4) Georges Bank. The paralytic notification in the Federal Register, the same trip are deemed to be in shellfish poisoning (PSP) contaminated without prior comment or public violation of the minimum size area, which is located on Georges Bank, hearing. If an extension of the 60-day restriction. and located east of 69° W. long., and closure period is necessary to protect (3) Suspension. Upon the south of 42°20′ N. lat. the public health, the hearing and notice recommendation of the MAFMC, the (b) Areas closed because of small requirements of paragraph (c)(1) of this Regional Administrator may suspend surfclams. Areas may be closed because section shall be followed. annually, by publication in the Federal they contain small surfclams. (d) Areas closed due to the presence Register, the minimum shell-length (1) Closure. The Regional of paralytic shellfish poisoning toxin— standard, unless discard, catch, and Administrator may close an area to (1) Maine mahogany quahog zone. The survey data indicate that 30 percent of surfclams and ocean quahog fishing if Maine mahogany quahog zone is closed the surfclams are smaller than 4.75 he/she determines, based on logbook to fishing for ocean quahogs except in inches (12.065 cm) and the overall entries, processors’ reports, survey those areas of the zone that are tested by reduced shell length is not attributable cruises, or other information, that the the State of Maine and deemed to be to beds where the growth of individual area contains surfclams of which: within the requirements of the National

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Shellfish Sanitation Program and the tags were issued. Replacement tags fishing for an individual allocation of adopted by the Interstate Shellfish may be purchased from the Regional ocean quahogs under § 648.74 shall be Sanitation Conference as acceptable Administrator or a vendor with a applied against the Maine mahogany limits for the toxin responsible for PSP. written authorization from the Regional quahog ACT, regardless of where the Harvesting is allowed in such areas Administrator. mahogany quahogs are harvested. during the periods specified by the (g) Transfer. See § 648.74(b)(2). (iii) All mahogany quahogs landed by Maine Department of Marine Resources (h) Presumptions. Surfclams and vessels fishing in the Maine mahogany during which quahogs are safe for ocean quahogs found in cages without a quahog zone for an individual allocation human consumption. For information valid state tag are deemed to have been of quahogs under § 648.74 will be regarding these areas contact the State of harvested in the EEZ and to be part of counted against the ocean quahog Maine Division of Marine Resources. an individual’s allocation, unless the allocation for which the vessel is (2) [Reserved] individual demonstrates that he/she has fishing. ■ 18. Section 648.77 is revised to read surrendered his/her Federal vessel (iv) The Regional Administrator will as follows: permit issued under § 648.4(a)(4) and monitor the ACT based on dealer conducted fishing operations reports and other available information, § 648.77 Cage identification. exclusively within waters under the and shall determine the date when the Except as provided in § 648.78, the jurisdiction of any state. Surfclams and ACT will be harvested. NMFS shall following cage identification ocean quahogs in cages with a Federal publish notification in the Federal requirements apply to all vessels issued tag or tags, issued and still valid Register advising the public that, a Federal fishing permit for surfclams pursuant to this section, affixed thereto effective upon a specific date, the Maine and ocean quahogs: are deemed to have been harvested by mahogany quahog quota has been (a) Tagging. Before offloading, all the individual allocation holder to harvested, and notifying vessel and cages that contain surfclams or ocean whom the tags were issued under the dealer permit holders that no Maine quahogs must be tagged with tags provisions of § 648.77(b) or transferred mahogany quahog quota is available for acquired annually under provisions of under the provisions of § 648.74(b). the remainder of the year. paragraph (b) of this section. A tag must ■ 19. Section 648.78 is added to subpart (2) Maine Mahogany Quahog be fixed on or as near as possible to the E to read as follows: Advisory Panel. The MAFMC shall upper crossbar of the cage. A tag is establish a Maine Mahogany Quahog required for every 60 ft3 (1,700 L) of § 648.78 Maine mahogany quahog zone. Advisory Panel consisting of cage volume, or portion thereof. A tag or (a) Landing requirements. (1) A vessel representatives of harvesters, dealers, tags must not be removed until the cage issued a valid Maine mahogany quahog and the Maine Department of Marine is emptied by the processor, at which permit pursuant to § 648.4(a)(4)(i), and Resources. The Advisory Panel shall time the processor must promptly fishing for or possessing ocean quahogs make recommendations, through the remove and retain the tag(s) for 60 days within the Maine mahogany quahog Surfclam and Ocean Quahog Committee beyond the end of the calendar year, zone, must land its catch in the State of of the MAFMC, regarding revisions to unless otherwise directed by authorized Maine. the annual quota and other management law enforcement agents. (2) A vessel fishing under an measures. (b) Issuance. The Regional individual allocation permit, regardless ■ 20. Section 648.79 is added to subpart Administrator will issue a supply of tags of whether it has a Maine mahogany E to read as follows: to each individual allocation owner quahog permit, fishing for or possessing qualifying for an allocation under ocean quahogs within the zone, may § 648.79 Surfclam and ocean quahog § 648.74 prior to the beginning of each land its catch in the State of Maine, or, framework adjustments to management fishing year, or he/she may specify, in consistent with applicable state law in measures. the Federal Register, a vendor from any other state that utilizes food safety- (a) Within season management action. whom the tags shall be purchased. The based procedures including sampling The MAFMC may, at any time, initiate number of tags will be based on the and analyzing for PSP toxin consistent action to add or adjust management owner’s initial allocation as specified in with those food safety-based procedures measures within the Atlantic Surfclam § 648.74(a). Each tag represents 32 bu used by the State of Maine for such and Ocean Quahog FMP if it finds that (1,700 L) of allocation. purpose, and must comply with all action is necessary to meet or be (c) Expiration. Tags will expire at the requirements in §§ 648.74 and 648.77. consistent with the goals and objectives end of the fishing year for which they Documentation required by the state of the plan. are issued, or if rendered null and void and other laws and regulations (1) Adjustment process. The MAFMC in accordance with 15 CFR part 904. applicable to food safety-based shall develop and analyze appropriate (d) Return. Tags that have been procedures must be made available by management actions over the span of at rendered null and void must be federally permitted dealers for least two MAFMC meetings. The returned to the Regional Administrator, inspection by NMFS. MAFMC must provide the public with if possible. (b) ACT monitoring and closures—(1) advance notice of the availability of the (e) Loss. Loss or theft of tags must be Catch quota. (i) The ACT for harvest of recommendation(s), appropriate reported by the owner, numerically mahogany quahogs from within the justification(s) and economic and identifying the tags to the Regional Maine mahogany quahog zone is biological analyses, and the opportunity Administrator by telephone as soon as 100,000 Maine bu (35,239 hL). The ACL to comment on the proposed the loss or theft is discovered and in may be revised annually within the adjustment(s) at the first meeting, and writing within 24 hours. Thereafter, the range of 17,000 and 100,000 Maine bu prior to and at the second MAFMC reported tags shall no longer be valid for (5,991 and 35,239 hL) following the meeting. The MAFMC’s use under this part. procedures set forth in §§ 648.72 and recommendations on adjustments or (f) Replacement. Lost or stolen tags 648.73, if applicable. additions to management measures may be replaced by the Regional (ii) All mahogany quahogs landed for must come from one or more of the Administrator if proper notice of the sale in Maine by vessels issued a Maine following categories: Adjustments loss is provided by the person to whom mahogany quahog permit and not within existing ABC control rule levels;

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adjustments to the existing MAFMC risk of this section, the measures will be stock rebuilding plan following a policy; introduction of new AMs, issued as a final rule in the Federal determination that the summer flounder including sub-ACTs; description and Register. stock has become overfished. identification of EFH (and fishing gear (ii) If NMFS concurs with the (3) Performance reviews shall not management measures that impact MAFMC’s recommended management substitute for annual reviews that occur EFH); habitat areas of particular measures and determines that the to ascertain if prior year ACLs have been concern; set-aside quota for scientific recommended management measures exceeded but may be conducted in research; VMS; OY range; suspension or should be published first as a proposed conjunction with such reviews. adjustment of the surfclam minimum rule, the measures will be published as ■ 22. Section 648.101 is revised to read size limit; and changes to the Northeast a proposed rule in the Federal Register. as follows: Region SBRM (including the CV-based After additional public comment, if performance standard, the means by NMFS concurs with the MAFMC § 648.101 Summer flounder Annual Catch which discard data are collected/ recommendation, the measures will be Target (ACT). obtained, fishery stratification, reports, published as a final rule in the Federal (a) The Summer Flounder Monitoring and/or industry-funded observers or Register. Committee shall identify and review the observer set-aside programs). Issues that (iii) If NMFS does not concur, the relevant sources of management require significant departures from MAFMC will be notified in writing of uncertainty to recommend ACTs for the previously contemplated measures or the reasons for the non-concurrence. commercial and recreational fishing that are otherwise introducing new (4) Emergency actions. Nothing in this sectors as part of the summer flounder concepts may require an amendment of section is meant to derogate from the specification process. The Summer the FMP instead of a framework authority of the Secretary to take Flounder Monitoring Committee adjustment. emergency action under section 305(e) recommendations shall identify the (2) MAFMC recommendation. After of the Magnuson-Stevens Act. specific sources of management developing management actions and (b) [Reserved] uncertainty that were considered, receiving public testimony, the MAFMC ■ 21. Section 648.100 is revised to read technical approaches to mitigating these shall make a recommendation to the as follows: sources of uncertainty, and any Regional Administrator. The MAFMC’s additional relevant information recommendation must include § 648.100 Summer flounder Annual Catch considered in the ACT recommendation supporting rationale, if management Limit (ACL). process. measures are recommended, an analysis (a) The Summer Flounder Monitoring (1) Sectors. Commercial and of impacts, and a recommendation to Committee shall recommend to the recreational specific ACTs shall be less the Regional Administrator on whether MAFMC separate ACLs for the than or equal to the sector-specific to issue the management measures as a commercial and recreational summer ACLs. The Summer Flounder final rule. If the MAFMC recommends flounder fisheries, the sum total of Monitoring Committee shall recommend that the management measures should which shall be equal to the ABC any reduction in catch necessary to be issued as a final rule, it must recommended by the SSC. address sector-specific management consider at least the following factors, (1) Sector allocations. The uncertainty, consistent with paragraph and provide support and analysis for commercial and recreational fishing (a) of this section. each factor considered: sector ACLs will be established (2) Periodicity. ACTs may be (i) Whether the availability of data on consistent with the allocation guidelines established on an annual basis for up to which the recommended management contained in the Summer Flounder, 3 years at a time, dependent on whether measures are based allows for adequate Scup, and Black Sea Bass Fishery the SSC provides single or multiple year time to publish a proposed rule, and Management Plan (FMP). ABC recommendations. whether the regulations would have to (2) Periodicity. The summer flounder (b) Performance review. The Summer be in place for an entire harvest/fishing commercial and recreational sector Flounder Monitoring Committee shall season. ACLs may be established on an annual conduct a detailed review of fishery (ii) Whether there has been adequate basis for up to 3 years at a time, performance relative to ACTs in notice and opportunity for participation dependent on whether the SSC provides conjunction with any ACL performance by the public and members of the single or multiple year ABC review, as outlined in § 648.100(b)(1) affected industry in the development of recommendations. through (3). recommended management measures. (b) Performance review. The Summer ■ 23. Section 648.102 is revised to read (iii) Whether there is an immediate Flounder Monitoring Committee shall as follows: need to protect the resource. conduct a detailed review of fishery (iv) Whether there will be a performance relative to the sector ACLs § 648.102 Summer flounder specifications. continuing evaluation of management at least every 5 years. (a) Commercial quota, recreational measures adopted following their (1) If one or both of the sector-specific landing limits, research set-asides, and implementation as a final rule. ACLs is exceeded with a frequency other specification measures. The (3) NMFS action. If the MAFMC’s greater than 25 percent (i.e., more than Summer Flounder Monitoring recommendation includes adjustments once in 4 years or any 2 consecutive Committee shall recommend to the or additions to management measures years), the Summer Flounder MAFMC, through the specifications and after reviewing the MAFMC’s Monitoring Committee will review process, for use in conjunction with recommendation and supporting fishery performance information and each ACL and ACT, a sector-specific information: make recommendations to the MAFMC research set-aside, estimates of sector- (i) If NMFS concurs with the for changes in measures intended to related discards, recreational harvest MAFMC’s recommended management ensure ACLs are not exceeded as limit, and commercial quota, along with measures and determines that the frequently. other measures, as needed, that are recommended management measures (2) The MAFMC may specify more projected to ensure the sector-specific should be issued as a final rule based on frequent or more specific ACL ACL for an upcoming fishing year or the factors specified in paragraph (a)(2) performance review criteria as part of a years will not be exceeded. The

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measures to be considered by the (c) After such review, the Regional for the calendar year for which the Summer Flounder Monitoring Administrator will publish a proposed request was made; Committee are: rule in the Federal Register to (iii) A state may not submit a request (1) Research quota set from a range of implement a coastwide commercial to transfer quota or combine quotas if a 0 to 3 percent of the allowable landings quota, a recreational harvest limit, request to which it is party is pending level for both the commercial and research set-aside, adjustments to ACL before the Regional Administrator. A recreational sectors. or ACT resulting from AMs, and state may submit a new request when it (2) Commercial minimum fish size. additional management measures for the receives notice that the Regional (3) Minimum mesh size. commercial fishery. After considering Administrator has disapproved the (4) Restrictions on gear other than public comment, NMFS will publish a previous request or when notice of the otter trawls. final rule in the Federal Register. approval of the transfer or combination (5) Adjustments to the exempted area (1) Distribution of annual commercial has been filed at the Office of the boundary and season specified in quota. (i) The annual commercial quota Federal Register. § 648.108(b)(1) by 30-minute intervals of will be distributed to the states, based (iv) If there is a quota overage among latitude and longitude and 2-week upon the following percentages; state states involved in the combination of intervals, respectively, based on data followed by percent share in quotas at the end of the fishing year, the reviewed by Summer Flounder parenthesis: Maine (0.04756); New overage will be deducted from the Monitoring Committee during the Hampshire (0.00046); Massachusetts following year’s quota for each of the specification process, to prevent (6.82046); Rhode Island (15.68298); states involved in the combined quota. discarding of sublegal sized summer Connecticut (2.25708); New York The deduction will be proportional, flounder in excess of 10 percent, by (7.64699); New Jersey (16.72499); based on each state’s relative share of weight. Delaware (0.01779); Maryland (2.03910); the combined quota for the previous (6) Recreational possession limit set Virginia (21.31676); North Carolina year. A transfer of quota or combination from a range of 0 to 15 summer flounder (27.44584). of quotas does not alter any state’s to achieve the recreational harvest limit, (ii) [Reserved] percentage share of the overall quota set after reductions for research quota. (2) Quota transfers and combinations. specified in paragraph (d)(1)(i) of this (7) Recreational minimum fish size. Any state implementing a state section. (8) Recreational season. commercial quota for summer flounder (d) Recreational specification (9) Recreational state conservation may request approval from the Regional measures. The Demersal Species equivalent and precautionary default Administrator to transfer part or its Committee shall review the measures utilizing possession limits, entire annual quota to one or more recommendations of the Summer minimum fish sizes, and/or seasons set states. Two or more states implementing Flounder Monitoring Committee. Based after reductions for research quota. a state commercial quota for summer on these recommendations and any (10) Changes, as appropriate, to the flounder may request approval from the public comment, the Demersal Species Northeast Region SBRM, including the Regional Administrator to combine their Committee shall recommend to the CV-based performance standard, fishery quotas, or part of their quotas, into an MAFMC and ASMFC measures that are stratification, and/or reports. overall regional quota. Requests for projected to ensure the sector-specific (11) Modification of existing AM transfer or combination of commercial ACL for an upcoming fishing year or measures and ACT control rules utilized quotas for summer flounder must be years will not be exceeded. The by the Summer Flounder Monitoring made by individual or joint letter(s) MAFMC shall review these Committee. signed by the principal state official recommendations and, based on the (b) Specification fishing measures. with marine fishery management recommendations and any public The Demersal Species Committee shall responsibility and expertise, or his/her comment, recommend to the Regional review the recommendations of the previously named designee, for each Administrator measures that are Summer Flounder Monitoring state involved. The letter(s) must certify projected to ensure the sector-specific Committee. Based on these that all pertinent state requirements ACL for an upcoming fishing year or recommendations and any public have been met and identify the states years will not be exceeded. The comment, the Demersal Species involved and the amount of quota to be MAFMC’s recommendations must Committee shall recommend to the transferred or combined. include supporting documentation, as MAFMC measures necessary that are (i) Within 10 working days following appropriate, concerning the projected to ensure the sector-specific the receipt of the letter(s) from the states environmental and economic impacts of ACLs for an upcoming fishing year or involved, the Regional Administrator the recommendations. The MAFMC and years will not be exceeded. The shall notify the appropriate state the ASMFC will recommend that the MAFMC shall review these officials of the disposition of the Regional Administrator implement recommendations and, based on the request. In evaluating requests to either: recommendations and any public transfer a quota or combine quotas, the (1) Coastwide measures. Annual comment, recommend to the Regional Regional Administrator shall consider coastwide management measures that Administrator measures that are whether: constrain the recreational summer projected to ensure the sector-specific (A) The transfer or combination flounder fishery to the recreational ACL for an upcoming fishing year or would preclude the overall annual harvest limit, or years will not be exceeded. The quota from being fully harvested; (2) Conservation equivalent measures. MAFMC’s recommendations must (B) The transfer addresses an Individual states, or regions formed include supporting documentation, as unforeseen variation or contingency in voluntarily by adjacent states (i.e., appropriate, concerning the the fishery; and multi-state conservation equivalency environmental and economic impacts of (C) The transfer is consistent with the regions), may implement different the recommendations. The Regional objectives of the FMP and the combinations of minimum fish sizes, Administrator shall review these Magnuson-Stevens Act. possession limits, and closed seasons recommendations and any (ii) The transfer of quota or the that achieve equivalent conservation as recommendations of the ASMFC. combination of quotas will be valid only the coastwide measures established

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under paragraph (e)(1) of this section. states have been closed. The Regional landings and will not utilize projections Each state or multi-state conservation Administrator may reopen the EEZ if of future landings. At such time that the equivalency region may implement earlier inaction by a state has been available data indicate that the measures by mode or area only if the remedied by that state, or if commercial recreational harvest limit has been met proportional standard error of fisheries in one or more states have been or exceeded, the Regional Administrator recreational landing estimates by mode reopened without causing the sector shall publish notification in the Federal or area for that state is less than 30 ACL to be exceeded. Register advising that, effective on a percent. (b) State commercial landing quotas. specific date, the summer flounder (i) After review of the The Regional Administrator will recreational fishery in the EEZ shall be recommendations, the Regional monitor state commercial quotas based closed for remainder of the calendar Administrator will publish a proposed on dealer reports and other available year. rule in the Federal Register as soon as information and shall determine the (1) Recreational ACL overage possible to implement the overall date when a state commercial quota will evaluation. The recreational sector ACL percent adjustment in recreational be harvested. The Regional will be evaluated based on a 3-year landings required for the fishing year, Administrator shall publish notification moving average comparison of total and the ASMFC’s recommendation in the Federal Register advising a state catch (landings and dead discards). Both concerning conservation equivalency, that, effective upon a specific date, its landings and dead discards will be the precautionary default measures, and commercial quota has been harvested evaluated in determining if the 3-year coastwide measures. and notifying vessel and dealer permit average recreational sector ACL has (ii) The ASMFC will review holders that no commercial quota is been exceeded. The 3-year moving conservation equivalency proposals and available for landing summer flounder average will be phased in over the first determine whether or not they achieve in that state. 3 years, beginning with 2012: Total the necessary adjustment to recreational (1) Commercial ACL overage recreational catch from 2012 will be landings. The ASMFC will provide the evaluation. The commercial sector ACL compared to the 2012 recreational sector Regional Administrator with the will be evaluated based on a single-year ACL; the average total catch from both individual state and/or multi-state examination of total catch (landings and 2012 and 2013 will be compared to the region conservation measures for the dead discards). Both landings and dead average of the 2012 and 2013 approved state and/or multi-state region discards will be evaluated in recreational sector ACLs; the average proposals and, in the case of determining if the commercial sector total catch from 2012, 2013, and 2014 disapproved state and/or multi-state ACL has been exceeded. will be compared to the average of the region proposals, the precautionary (2) Commercial landings overage 2012, 2013, and 2014 recreational sector default measures. repayment. All summer flounder landed ACLs; and for all subsequent years, the (iii) The ASMFC may allow states for sale in a state shall be applied preceding 3-year average recreational assigned the precautionary default against that state’s annual commercial total catch will be compared to the measures to resubmit revised quota, regardless of where the summer preceding 3-year average recreational management measures. The ASMFC flounder were harvested. Any landings sector ACL. will detail the procedures by which the in excess of the commercial quota in (2) Recreational landing overage state can develop alternate measures. any state, inclusive of any state-to-state repayment. If available data indicate The ASMFC will notify the Regional transfers, will be deducted from that that the recreational sector ACL has Administrator of any resubmitted state state’s annual quota for the following been exceeded and the landings have proposals approved subsequent to year in the final rule that establishes the exceeded the RHL, the exact poundage publication of the final rule and the annual state-by-state quotas, irrespective of the landings overage will be Regional Administrator will publish a of whether the commercial sector ACL deducted, as soon as possible, from a notice in the Federal Register to notify is exceeded. The overage deduction will subsequent single fishing year the public. be based on landings for the current recreational sector ACT. (iv) After considering public year through October 31 and on (d) Non-landing accountability comment, the Regional Administrator landings for the previous calendar year measures, by sector. In the event that a will publish a final rule in the Federal that were not included when the sector ACL has been exceeded and the Register to implement either the state overage deduction was made in the final overage has not been accommodated specific conservation equivalency rule that established the annual quota through landing-based AMs, then the measures or coastwide measures to for the current year. If the Regional exact amount by which the sector ACL ensure that the applicable specified Administrator determines during the was exceeded, in pounds, will be target is not exceeded. fishing year that any part of an overage deducted, as soon as possible, from the (e) Research quota. See § 648.22(g). deduction was based on erroneous applicable subsequent single fishing ■ 24. Section 648.103 is revised to read landings data that were in excess of year sector ACL. as follows: actual landings for the period (e) State/Federal disconnect AM. If concerned, he/she will restore the the total catch, allowable landing, § 648.103 Summer flounder accountability overage that was deducted in error to commercial quotas and/or RHL measures. the appropriate quota allocation. The measures adopted by the ASMFC (a) Commercial sector EEZ closure. Regional Administrator will publish Summer Flounder Management Board The Regional Administrator shall close notification in the Federal Register and the MAFMC differ for a given the EEZ to fishing for summer flounder announcing such restoration. fishing year, administrative action will by commercial vessels for the remainder (c) Recreational landings sector be taken as soon as possible to revisit of the calendar year by publishing closure. The Regional Administrator the respective recommendations of the notification in the Federal Register if will monitor recreational landings based two groups. The intent of this action he/she determines that the inaction of on the best available data and shall shall be to achieve alignment through one or more states will cause the determine if the recreational harvest consistent state and Federal measures so commercial sector ACL to be exceeded, limit has been met or exceeded. The no differential effects occur on Federal or if the commercial fisheries in all determination will be based on observed permit holders.

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■ 25. Section 648.104 is revised to read boat issued a summer flounder possession limit prescribed in as follows: moratorium permit are subject to the §§ 648.104(b), 648.105, and 648.106(a), possession limit when carrying respectively. This determination is § 648.104 Summer flounder minimum fish passengers for hire or when carrying based on a recommendation from the sizes. more than five crew members for a party Summer Flounder Board of the ASMFC. (a) Moratorium (commercial) boat, or more than three crew members (1) Federally permitted party and permitted vessels. The minimum size for a charter boat. This possession limit charter vessels subject to the for summer flounder is 14 inches (35.6 may be adjusted pursuant to the recreational fishing measures of this cm) TL for all vessels issued a procedures in § 648.102. part, and other recreational fishing moratorium permit under § 648.4(a)(3), (b) If whole summer flounder are vessels harvesting summer flounder in except on board party and charter boats processed into fillets, the number of or from the EEZ and subject to the carrying passengers for hire or carrying fillets will be converted to whole recreational fishing measures of this more than three crew members, if a summer flounder at the place of landing part, landing summer flounder in a state charter boat, or more than five crew by dividing the fillet number by two. If whose fishery management measures members, if a party boat. summer flounder are filleted into single are determined by the Regional (b) Party/charter permitted vessels (butterfly) fillets, each fillet is deemed Administrator to be conservation and recreational fishery participants. to be from one whole summer flounder. equivalent shall not be subject to the Unless otherwise specified pursuant to (c) Summer flounder harvested by more restrictive Federal measures, § 648.107, the minimum size for vessels subject to the possession limit pursuant to the provisions of § 648.4(b). summer flounder is 18.5 inches (46.99 with more than one person on board Those vessels shall be subject to the cm) TL for all vessels that do not qualify may be pooled in one or more recreational fishing measures for a moratorium permit under containers. Compliance with the daily implemented by the state in which they § 648.4(a)(3), and charter boats holding possession limit will be determined by land. a moratorium permit if fishing with dividing the number of summer (2) [Reserved] more than three crew members, or party flounder on board by the number of (b) Federally permitted vessels subject boats holding a moratorium permit if persons on board, other than the captain to the recreational fishing measures of fishing with passengers for hire or and the crew. If there is a violation of this part, and other recreational fishing carrying more than five crew members. the possession limit on board a vessel vessels subject to the recreational (c) The minimum sizes in this section carrying more than one person, the fishing measures of this part and apply to whole fish or to any part of a violation shall be deemed to have been registered in states whose fishery fish found in possession, e.g., fillets, committed by the owner and operator of management measures are not except that party and charter vessels the vessel. determined by the Regional possessing valid state permits (d) Commercially permitted vessel Administrator to be the conservation authorizing filleting at sea may possess possession limits. Owners and operators equivalent of the season, minimum size, fillets smaller than the size specified if of otter trawl vessels issued a permit and possession limit prescribed in all state requirements are met. under § 648.4(a)(3) that fish with or §§ 648.104(b), 648.105, and 648.106(a), ■ 26. Section 648.105 is revised to read possess nets or pieces of net on board respectively, due to the lack of, or the as follows: that do not meet the minimum mesh reversal of, a conservation equivalent requirements and that are not stowed in recommendation from the Summer § 648.105 Summer flounder recreational accordance with § 648.108(e), may not Flounder Board of the ASMFC, shall be fishing season. retain 100 lb (45.4 kg) or more of subject to the following precautionary Unless otherwise specified pursuant summer flounder from May 1 through default measures: Season—May 1 to § 648.107, vessels that are not eligible October 31, or 200 lb (90.7 kg) or more through September 30; minimum size— for a moratorium permit under of summer flounder from November 1 20.0 inches (50.80 cm); and possession § 648.4(a)(3), and fishermen subject to through April 30, unless the vessel limit—two fish. the possession limit, may fish for possesses a valid summer flounder ■ 29. Section 648.108 is revised to read summer flounder from May 1 through small-mesh exemption LOA and is as follows: September 30. This time period may be fishing in the exemption area as adjusted pursuant to the procedures in § 648.108 Summer flounder gear specified in § 648.108(b). Summer restrictions. § 648.102. flounder on board these vessels must be (a) General. (1) Otter trawlers whose ■ 27. Section 648.106 is revised to read stored so as to be readily available for owners are issued a summer flounder as follows: inspection in standard 100-lb (45.3-kg) permit and that land or possess 100 lb totes or fish boxes having a liquid § 648.106 Summer flounder possession (45.4 kg) or more of summer flounder capacity of 18.2 gal (70 L), or a volume restrictions. from May 1 through October 31, or 200 of not more than 4,320 in3 (2.5 ft3 or (a) Party/charter and recreational 3 lb (90.7 kg) or more of summer flounder possession limits. Unless otherwise 70.79 cm ). ■ 28. Section 648.107 is revised to read from November 1 through April 30, per specified pursuant to § 648.107, no as follows: trip, must fish with nets that have a person shall possess more than two minimum mesh size of 5.5-inch (14.0- summer flounder in, or harvested from, § 648.107 Conservation equivalent cm) diamond or 6.0-inch (15.2-cm) the EEZ, unless that person is the owner measures for the summer flounder party/ square mesh applied throughout the or operator of a fishing vessel issued a charter and recreational fishery. body, extension(s), and codend portion summer flounder moratorium permit, or (a) The Regional Administrator has of the net. is issued a summer flounder dealer determined that the recreational fishing (2) Mesh size is measured by using a permit. Persons aboard a commercial measures proposed to be implemented wedge-shaped gauge having a taper of 2 vessel that is not eligible for a summer by Massachusetts through North cm (0.79 inches) in 8 cm (3.15 inches), flounder moratorium permit are subject Carolina for 2011 are the conservation and a thickness of 2.3 mm (0.09 inches), to this possession limit. The owner, equivalent of the recreational fishing inserted into the meshes under a operator, and crew of a charter or party season, minimum fish size, and pressure or pull of 5 kg (11.02 lb) for

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mesh size less than 120 mm (4.72 (ii) The first body section (belly) of (e) Stowage of nets. Otter trawl vessels inches) and under a pressure or pull of the net has 35 or more meshes that are retaining 100 lb (45.3 kg) or more of 8 kg (17.64 lb) for mesh size at, or at least 8 inches (20.3 cm). summer flounder from May 1 through greater than, 120 mm (4.72 inches). The (iii) The mesh decreases in size October 31, or 200 lb (90.6 kg) or more mesh size is the average of the throughout the body of the net to 2 of summer flounder from November 1 measurements of any series of 20 inches (5 cm) or smaller towards the through April 30, and subject to the consecutive meshes for nets having 75 terminus of the net. minimum mesh size requirement of or more meshes, and 10 consecutive (3) The Regional Administrator may paragraph (a)(1) of this section may not meshes for nets having fewer than 75 terminate this exemption if he/she have ‘‘available for immediate use’’ any meshes. The mesh in the regulated determines, after a review of sea net or any piece of net that does not portion of the net is measured at least sampling data, that vessels fishing meet the minimum mesh size five meshes away from the lacings, under the exemption, on average, are requirement, or any net, or any piece of running parallel to the long axis of the discarding more than 1 percent of their net, with mesh that is rigged in a net. entire catch of summer flounder per manner that is inconsistent with the (b) Exemptions. Unless otherwise trip. If the Regional Administrator minimum mesh size requirement. A net restricted by this part, the minimum makes such a determination, he/she that is stowed in conformance with one mesh-size requirements specified in shall publish notification in the Federal of the methods specified in § 648.23(b) paragraph (a)(1) of this section do not Register terminating the exemption for and that can be shown not to have been apply to: the remainder of the calendar year. in recent use is considered to be not (1) Vessels issued a summer flounder (c) Net modifications. No vessel ‘‘available for immediate use.’’ moratorium permit, a Summer Flounder subject to this part shall use any device, (f) The minimum net mesh Small-Mesh Exemption Area letter of gear, or material, including, but not requirement may apply to any portion of authorization (LOA), required under limited to, nets, net strengtheners, the net. The minimum mesh size and paragraph (b)(1)(i) of this section, and ropes, lines, or chafing gear, on the top the portion of the net regulated by the fishing from November 1 through April of the regulated portion of a trawl net; minimum mesh size may be adjusted 30 in the exemption area, which is east except that, one splitting strap and one pursuant to the procedures in § 648.102. of the line that follows 72°30.0′ W. long. bull rope (if present) consisting of line ■ 30. Section 648.109 is added to until it intersects the outer boundary of or rope no more than 3 inches (7.2 cm) subpart G to read as follows: the EEZ (copies of a map depicting the in diameter may be used if such § 648.109 Sea turtle conservation. area are available upon request from the splitting strap and/or bull rope does not Sea turtle regulations are found at 50 Regional Administrator). Vessels fishing constrict, in any manner, the top of the CFR parts 222 and 223. under the LOA shall not fish west of the regulated portion of the net, and one ■ line. Vessels issued a permit under rope no greater than 0.75 inches (1.9 31. Section 648.110 is added to § 648.4(a)(3)(iii) may transit the area cm) in diameter extending the length of subpart G to read as follows: west or south of the line, if the vessel’s the net from the belly to the terminus of § 648.110 Summer flounder framework fishing gear is stowed in a manner the codend along the top, bottom, and adjustments to management measures. prescribed under § 648.108(e), so that it each side of the net. ‘‘Top of the (a) Within season management action. is not ‘‘available for immediate use’’ regulated portion of the net’’ means the The MAFMC may, at any time, initiate outside the exempted area. The Regional 50 percent of the entire regulated action to add or adjust management Administrator may terminate this portion of the net that (in a hypothetical measures within the Summer Flounder, exemption if he/she determines, after a situation) will not be in contact with the Scup, and Black Sea Bass FMP if it finds review of sea sampling data, that vessels ocean bottom during a tow if the that action is necessary to meet or be fishing under the exemption are regulated portion of the net were laid consistent with the goals and objectives discarding more than 10 percent, by flat on the ocean floor. For the purpose of the FMP. weight, of their entire catch of summer of this paragraph (c), head ropes shall (1) Adjustment process. The MAFMC flounder per trip. If the Regional not be considered part of the top of the shall develop and analyze appropriate Administrator makes such a regulated portion of a trawl net. A vessel management actions over the span of at determination, he/she shall publish shall not use any means or mesh least two MAFMC meetings. The notification in the Federal Register configuration on the top of the regulated MAFMC must provide the public with terminating the exemption for the portion of the net, as defined paragraph advance notice of the availability of the remainder of the exemption season. (c) of this section, if it obstructs the recommendation(s), appropriate (i) Requirements. (A) A vessel fishing meshes of the net or otherwise causes justification(s) and economic and in the Summer Flounder Small-Mesh the size of the meshes of the net while biological analyses, and the opportunity Exemption Area under this exemption in use to diminish to a size smaller than to comment on the proposed must have on board a valid LOA issued the minimum specified in paragraph (a) adjustment(s) at the first meeting and by the Regional Administrator. of this section. prior to and at the second MAFMC (B) The vessel must be in enrolled in (d) Mesh obstruction or constriction. meeting. The MAFMC’s the exemption program for a minimum (1) A fishing vessel may not use any recommendations on adjustments or of 7 days. mesh configuration, mesh construction, additions to management measures (ii) [Reserved] or other means on or in the top of the must come from one or more of the (2) Vessels fishing with a two-seam net, as defined in paragraph (c) of this following categories: Adjustments otter trawl fly net with the following section, that obstructs the meshes of the within existing ABC control rule levels; configuration, provided that no other net in any manner. adjustments to the existing MAFMC risk nets or netting with mesh smaller than (2) No person on any vessel may policy; introduction of new AMs, 5.5 inches (14.0 cm) are on board: possess or fish with a net capable of including sub-ACTs; minimum fish size; (i) The net has large mesh in the catching summer flounder in which the maximum fish size; gear restrictions; wings that measures 8 inches (20.3 cm) bars entering or exiting the knots twist gear requirements or prohibitions; to 64 inches (162.6 cm). around each other. permitting restrictions; recreational

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possession limit; recreational seasons; measures adopted following their will review fishery performance closed areas; commercial seasons; implementation as a final rule. information and make recommendations commercial trip limits; commercial (3) NMFS action. If the MAFMC’s to the MAFMC for changes in measures quota system including commercial recommendation includes adjustments intended to ensure ACLs are not as quota allocation procedure and possible or additions to management measures frequently exceeded. quota set asides to mitigate bycatch; and, if after reviewing the MAFMC’s (2) The MAFMC may specify more recreational harvest limit; specification recommendation and supporting frequent or more specific ACL quota setting process; FMP Monitoring information: performance review criteria as part of a Committee composition and process; (i) NMFS concurs with the MAFMC’s stock rebuilding plan following a description and identification of recommended management measures determination that the scup stock has essential fish habitat (and fishing gear and determines that the recommended become overfished. management measures that impact management measures should be issued (3) Performance reviews shall not EFH); description and identification of as a final rule based on the factors in substitute for annual reviews that occur habitat areas of particular concern; paragraph (a)(2) of this section, the to ascertain if prior year ACLs have been regional gear restrictions; regional measures will be issued as a final rule exceeded but may be conducted in season restrictions (including option to in the Federal Register. conjunction with such reviews. split seasons); restrictions on vessel size (ii) If NMFS concurs with the ■ 33. Section 648.121 is revised to read (LOA and GRT) or shaft horsepower; MAFMC’s recommended management as follows: operator permits; changes to the measures and determines that the Northeast Region SBRM (including the recommended management measures § 648.121 Scup Annual Catch Target CV-based performance standard, the should be published first as a proposed (ACT). means by which discard data are rule, the measures will be published as (a) The Scup Monitoring Committee collected/obtained, fishery stratification, a proposed rule in the Federal Register. shall identify and review the relevant reports, and/or industry-funded After additional public comment, if sources of management uncertainty to observers or observer set-aside NMFS concurs with the MAFMC recommend ACTs for the commercial programs); any other commercial or recommendation, the measures will be and recreational fishing sectors as part recreational management measures; any published as a final rule in the Federal of the scup specification process. The other management measures currently Register. Scup Monitoring Committee included in the FMP; and set aside (iii) If NMFS does not concur, the recommendations shall identify the quota for scientific research. Issues that MAFMC will be notified in writing of specific sources of management require significant departures from the reasons for the non-concurrence. uncertainty that were considered, previously contemplated measures or (4) Emergency actions. Nothing in this technical approaches to mitigating these that are otherwise introducing new section is meant to derogate from the sources of uncertainty, and any concepts may require an amendment of authority of the Secretary to take additional relevant information the FMP instead of a framework emergency action under section 305(e) considered in the ACT recommendation adjustment. of the Magnuson-Stevens Act. process. (2) MAFMC recommendation. After (b) [Reserved] (1) Sectors. Commercial and developing management actions and ■ 32. Section 648.120 is revised to read recreational specific ACTs shall be less receiving public testimony, the MAFMC as follows: than or equal to the sector-specific shall make a recommendation to the ACLs. The Scup Monitoring Committee Regional Administrator. The MAFMC’s § 648.120 Scup Annual Catch Limit (ACL). shall recommend any reduction in catch recommendation must include (a) The Scup Monitoring Committee necessary to address sector-specific supporting rationale, if management shall recommend to the MAFMC management uncertainty, consistent measures are recommended, an analysis separate ACLs for the commercial and with paragraph (a) of this section. of impacts, and a recommendation to recreational scup fisheries, the sum total (2) Periodicity. ACTs may be the Regional Administrator on whether of which shall be equal to the ABC established on an annual basis for up to to issue the management measures as a recommended by the SSC. 3 years at a time, dependent on whether final rule. If the MAFMC recommends (1) Sector allocations. The the SSC provides single or multiple year that the management measures should commercial and recreational fishing ABC recommendations. be issued as a final rule, it must sector ACLs will be established (b) Performance review. The Scup consider at least the following factors consistent with the allocation guidelines Monitoring Committee shall conduct a and provide support and analysis for contained in the Summer Flounder, detailed review of fishery performance each factor considered: Scup, and Black Sea Bass FMP. relative to ACTs in conjunction with (i) Whether the availability of data on (2) Periodicity. The scup commercial any ACL performance review, as which the recommended management and recreational sector ACLs may be outlined in § 648.120(b)(1) through (3). measures are based allows for adequate established on an annual basis for up to ■ 34. Section 648.122 is revised to read time to publish a proposed rule, and 3 years at a time, dependent on whether as follows: whether the regulations would have to the SSC provides single or multiple year be in place for an entire harvest/fishing ABC recommendations. § 648.122 Scup specifications. season; (b) Performance review. The Scup (a) Commercial quota, recreational (ii) Whether there has been adequate Monitoring Committee shall conduct a landing limits, research set-asides, and notice and opportunity for participation detailed review of fishery performance other specification measures. The Scup by the public and members of the relative to the sector ACLs at least every Monitoring Committee shall recommend affected industry in the development of 5 years. to the Demersal Species Committee of recommended management measures; (1) If one or both of the sector-specific the MAFMC and the ASMFC through (iii) Whether there is an immediate ACLs is exceeded with a frequency the specifications process, for use in need to protect the resource; and greater than 25 percent (i.e., more than conjunction with each ACL and ACT, a (iv) Whether there will be a once in 4 years or any 2 consecutive sector specific research set-aside, continuing evaluation of management years), the Scup Monitoring Committee estimates of sector-related discards,

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recreational harvest limit, and recommendations and any through the annual specifications- commercial quota, along with other recommendations of the ASMFC. After setting process. measures, as needed, that are projected such review, NMFS will publish a (e) Research quota. See § 648.21(g). to ensure the sector-specific ACL for an proposed rule in the Federal Register to ■ 35. Section 648.123 is revised to read upcoming fishing year or years will not implement a commercial quota, as follows: be exceeded. The measures to be specifying the amount of quota allocated considered by the Scup Monitoring to each of the three periods, possession § 648.123 Scup accountability measures. Committee are as follows: limits for the Winter I and Winter II (a) Commercial sector period closures. (1) Research quota set from a range of periods, including possession limits that The Regional Administrator will 0 to 3 percent of the maximum allowed result from potential rollover of quota monitor the harvest of commercial quota to achieve the specified exploitation from Winter I to Winter II, the for each quota period based on dealer rate. percentage of landings attained during reports, state data, and other available (2) The commercial quota for each of the Winter I fishery at which the information and shall determine the the three periods specified in paragraph possession limits will be reduced, a date when the commercial quota for a (c)(1) of this section for research quota. recreational harvest limit, and period will be harvested. NMFS shall (3) Possession limits for the Winter I additional management measures for the close the EEZ to fishing for scup by and Winter II periods, including commercial fishery. If the Regional commercial vessels for the remainder of possession limits that result from Administrator determines that the indicated period by publishing potential rollover of quota from Winter additional recreational measures are notification in the Federal Register I to Winter II. The possession limit is necessary to ensure that the sector ACL advising that, effective upon a specific the maximum quantity of scup that is will not be exceeded, he or she will date, the commercial quota for that allowed to be landed within a 24–hour publish a proposed rule in the Federal period has been harvested, and period (calendar day). Register to implement additional notifying vessel and dealer permit (4) Percent of landings attained at management measures for the holders that no commercial quota is which the landing limit for the Winter recreational fishery. After considering available for landing scup for the remainder of the period. I period will be reduced. public comment, the Regional (1) Commercial ACL overage (5) All scup landed for sale in any Administrator will publish a final rule evaluation. The commercial sector ACL state during a quota period shall be in the Federal Register to implement applied against the coastwide will be evaluated based on a single-year annual measures. examination of total catch (landings and commercial quota for that period, (c) Distribution of commercial quota. dead discards). Both landings and dead regardless of where the scup were (1) The annual commercial quota will be discards will be evaluated in harvested, except as provided in allocated into three periods, based on determining if the commercial sector paragraph (c)(5) of this section. the following percentages: (6) Minimum mesh size. ACL has been exceeded. (2) Commercial landings overage (7) Recreational possession limit set Period Percent from a range of 0 to 50 scup to achieve repayment by quota period. (i) All scup the recreational harvest limit, set after Winter I—January–April ...... 45.11 landed for sale in any state during a the reduction for research quota. Summer—May–October ...... 38.95 quota period shall be applied against the (8) Recreational minimum fish size. Winter II—November–December ... 15.94 coastwide commercial quota for that (9) Recreational season. period, regardless of where the scup (10) Restrictions on gear. (2) The commercial quotas for each were harvested, except as provided in (11) Season and area closures in the period will each be distributed to the paragraph (a)(2)(iv) of this section, and commercial fishery. coastal states from Maine through North irrespective of whether the commercial (12) Total allowable landings on an Carolina on a coastwide basis. sector ACL is exceeded. Any current annual basis for a period not to exceed (d) Winter I and II commercial quota year landings in excess of the 3 years. adjustment procedures. The Regional commercial quota in any quota period (13) Changes, as appropriate, to the Administrator will monitor the harvest will be deducted from that quota Northeast Region SBRM, including the of commercial quota for the Winter I period’s annual quota in the following CV-based performance standard, fishery period based on dealer reports, state year as prescribed in paragraphs stratification, and/or reports. data, and other available information (a)(2)(ii) through (iii) of this section: (14) Modification of existing AM and shall determine the total amount of (ii) For the Winter I and Summer measures and ACT control rules utilized scup landed during the Winter I period. quota periods, landings in excess of the by the Scup Monitoring Committee. In any year that the Regional allocation will be deducted from the (b) Specification of fishing measures. Administrator determines that the appropriate quota period for the The Demersal Species Committee shall landings of scup during Winter I are less following year in the final rule that review the recommendations of the than the Winter I quota for that year, he/ establishes the annual quota. The Scup Monitoring Committee. Based on she shall increase, through publication overage deduction will be based on these recommendations and any public of a notification in the Federal Register, landings for the current year through comment, the Demersal Species provided such rule complies with the October 31 and on landings for the Committee shall recommend to the requirements of the Administrative previous calendar year that were not MAFMC measures necessary to assure Procedure Act, the Winter II quota for included when the overage deduction that the specified ACLs will not be that year by the amount of the Winter was made in the final rule that exceeded. The MAFMC’s I under-harvest. The Regional established the period quotas for the recommendation must include Administrator shall also adjust, through current year. If the Regional supporting documentation, as publication of a notification in the Administrator determines during the appropriate, concerning the Federal Register, the Winter II fishing year that any part of an overage environmental and economic impacts of possession limits consistent with the deduction was based on erroneous the recommendations. The Regional amount of the quota increase, based on landings data that were in excess of Administrator shall review these the possession limits established actual landings for the period

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concerned, he/she will restore the (1) Recreational ACL overage section must fish with nets that have a overage that was deducted in error to evaluation. The recreational sector ACL minimum mesh size of 5.0-inch (12.7- the appropriate quota allocation. The will be evaluated based on a 3-year cm) diamond mesh, applied throughout Regional Administrator will publish moving average comparison of total the codend for at least 75 continuous notification in the Federal Register catch (landings and dead discards). Both meshes forward of the terminus of the announcing the restoration. landings and dead discards will be net. For trawl nets with codends (iii) For the Winter II quota period, evaluated in determining if the 3-year (including an extension) of fewer than landings in excess of the allocation will average recreational sector ACL has 75 meshes, the entire trawl net must be deducted from the Winter II period been exceeded. The 3-year moving have a minimum mesh size of 5.0 inches for the following year through average will be phased in over the first (12.7 cm) throughout the net. The notification in the Federal Register 3 years, beginning with 2012: Total Southern Gear Restricted Area is an area during July of the following year. The recreational total catch from 2012 will bounded by straight lines connecting overage deduction will be based on be compared to the 2012 recreational the following points in the order stated landings information available for the sector ACL; the average total catch from (copies of a chart depicting the area are Winter II period as of June 30 of the both 2012 and 2013 will be compared to available from the Regional following year. If the Regional the average of the 2012 and 2013 Administrator upon request): Administrator determines during the recreational sector ACLs; the average fishing year that any part of an overage total catch from 2012, 2013, and 2014 SOUTHERN GEAR RESTRICTED AREA deduction was based on erroneous will be compared to the average of 2012, landings data that were in excess of 2013, and 2014 recreational sector Point N. lat. W. long. actual landings for the period ACLs; and for all subsequent years, the SGA1 ...... 39°20′ 72°53′ concerned, he/she will restore the preceding 3-year average recreational ° ′ ° ′ total catch will be compared to the SGA2 ...... 39 20 72 28 overage that was deducted in error to SGA3 ...... 38°00′ 73°58′ the appropriate quota allocation. The preceding 3-year average recreational SGA4 ...... 37°00′ 74°43′ Regional Administrator will publish sector ACL. SGA5 ...... 36°30′ 74°43′ notification in the Federal Register (2) Recreational landing overage SGA6 ...... 36°30′ 75°03′ announcing the restoration. repayment. If available data indicate SGA7 ...... 37°00′ 75°03′ (iv) During a fishing year in which the that the recreational sector ACL has SGA8 ...... 38°00′ 74°23′ ° ′ ° ′ Winter I quota period is closed prior to been exceeded and the landings have SGA1 ...... 39 20 72 53 April 15, a state may apply to the exceeded RHL, the exact amount of the Regional Administrator for landings overage in pounds will be (2) Non-exempt species. Unless authorization to count scup landed for deducted, as soon as possible, from a otherwise specified in paragraph (d) of sale in that state from April 15 through subsequent single fishing year this section, the restrictions specified in April 30 by state-only permitted vessels recreational sector ACT. paragraph (a)(1) of this section apply fishing exclusively in waters under the (c) Non-landing accountability only to vessels in the Southern Gear jurisdiction of that state against the measures, by sector. In the event that a Restricted Area that are fishing for or in Summer period quota. Requests to the sector ACL has been exceeded and the possession of the following non-exempt Regional Administrator to count scup overage has not been accommodated species: Loligo squid; black sea bass; landings in a state from April 15 through landing-based AMs, then the and silver hake (whiting). through April 30 against the Summer exact amount by which the sector ACL (b) Northern Gear Restricted Area 1— period quota must be made by letter was exceeded will be deducted, as soon (1) Restrictions. From November 1 signed by the principal state official as practicable, from a subsequent single through December 31, all trawl vessels with marine fishery management fishing year applicable sector ACL in the Northern Gear Restricted Area 1 responsibility and expertise, or his/her through the specification process. that fish for or possess non-exempt (d) State/Federal disconnect AM. If designee, and must be received by the species as specified in paragraph (b)(2) the total catch, allowable landing, Regional Administrator no later than of this section must fish with nets of commercial quotas and/or RHL April 15. Within 10 working days 5.0-inch (12.7-cm) diamond mesh, measures adopted by the ASMFC Scup following receipt of the letter, the applied throughout the codend for at Management Board and the MAFMC Regional Administrator shall notify the least 75 continuous meshes forward of differ for a given fishing year, appropriate state official of the the terminus of the net. For trawl nets administrative action will be taken as disposition of the request. with codends (including an extension) soon as is practicable to revisit the (b) Recreational landings sector of fewer than 75 meshes, the entire respective recommendations of the two closure. The Regional Administrator trawl net must have a minimum mesh groups. The intent of this action shall be will monitor recreational landings based size of 5.0 inches (12.7 cm) throughout to achieve alignment through consistent on the best available data and shall the net. The Northern Gear Restricted state and Federal measures so no determine if the recreational harvest Area 1 is an area bounded by straight differential effects occur on Federal limit has been met or exceeded. The lines connecting the following points in permit holders. determination will be based on observed the order stated (copies of a chart ■ 36. Section 648.124 is revised to read depicting the area are available from the landings and will not utilize projections as follows: of future landings. At such time that the Regional Administrator upon request): available data indicate that the § 648.124 Scup commercial season and recreational harvest limit has been met commercial fishery area restrictions. NORTHERN GEAR RESTRICTED AREA 1 or exceeded, the Regional Administrator (a) Southern Gear Restricted Area— Point N. lat. W. long. shall publish notification in the Federal (1) Restrictions. From January 1 through Register advising that, effective on a March 15, all trawl vessels in the NGA1 ...... 41°00′ 71°00′ specific date, the scup recreational Southern Gear Restricted Area that fish NGA2 ...... 41°00′ 71°30′ fishery in the EEZ shall be closed for for or possess non-exempt species as NGA3 ...... 40°00′ 72°40′ remainder of the calendar year. specified in paragraph (a)(2) of this NGA4 ...... 40°00′ 72°05′

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NORTHERN GEAR RESTRICTED AREA the Magnuson-Stevens Act, and other purpose of this paragraph (a)(3), head 1—Continued applicable law and will not: ropes are not considered part of the top (i) Have a detrimental effect on the of the regulated portion of a trawl net. Point N. lat. W. long. scup resource and fishery; (4) Mesh obstruction or constriction. (ii) Cause the quotas for any species (i) The owner or operator of a fishing ° ′ ° ′ NGA1 ...... 41 00 71 00 of fish for any quota period to be vessel subject to the minimum mesh exceeded; restrictions in § 648.124 and in (iii) Create significant enforcement (2) Non-exempt species. Unless paragraph (a)(1) of this section shall not problems; or otherwise specified in paragraph (d) of use any mesh construction, mesh (iv) Have a detrimental effect on the this section, the restrictions specified in configuration, or other means on, in, or paragraph (b)(1) of this section apply scup discard mitigation research project. ■ attached to the top of the regulated only to vessels in the Northern Gear 37. Section 648.125 is revised to read portion of the net, as defined in Restricted Area 1 that are fishing for, or as follows: paragraph (a)(3) of this section, if it in possession of, the following non- § 648.125 Scup gear restrictions. obstructs or constricts the meshes of the exempt species: Loligo squid; black sea net in any manner. bass; and silver hake (whiting). (a) Trawl vessel gear restrictions—(1) Minimum mesh size. No owner or (ii) The owner or operator of a fishing (c) Transiting. Vessels that are subject operator of an otter trawl vessel that is vessel subject to the minimum mesh to the provisions of the Southern and issued a scup moratorium permit may requirements in § 648.124 and in Northern GRAs, as specified in possess 500 lb (226.8 kg) or more of paragraph (a)(1) of this section may not paragraphs (a) and (b) of this section, scup from November 1 through April use a net capable of catching scup if the respectively, may transit these areas 30, or 200 lb (90.7 kg) or more of scup bars entering or exiting the knots twist provided that trawl net codends on from May 1 through October 31, unless around each other. board of mesh size less than that fishing with nets that have a minimum specified in paragraphs (a) and (b) of (5) Stowage of nets. The owner or mesh size of 5.0-inch (12.7-cm) this section are not available for operator of an otter trawl vessel diamond mesh, applied throughout the immediate use and are stowed in retaining 500 lb (226.8 kg) or more of codend for at least 75 continuous accordance with the provisions of scup from November 1 through April meshes forward of the terminus of the § 648.23(b). 30, or 200 lb (90.7 kg) or more of scup net, and all other nets are stowed in (d) [Reserved] from May 1 through October 31, and accordance with § 648.23(b)(1). For subject to the minimum mesh (e) Addition or deletion of trawl nets with codends (including an requirements in paragraph (a)(1) of this exemptions. The MAFMC may extension) of fewer than 75 meshes, the section, and the owner or operator of a recommend to the Regional entire trawl net must have a minimum midwater trawl or other trawl vessel Administrator, through the framework mesh size of 5.0 inches (12.7 cm) subject to the minimum size procedure specified in § 648.130(a), throughout the net. Scup on board these requirement in § 648.126, may not have additions or deletions to exemptions for vessels must be stowed separately and available for immediate use any net, or fisheries other than scup. A fishery may kept readily available for inspection. any piece of net, not meeting the be restricted or exempted by area, gear, Measurement of nets will conform with minimum mesh size requirement, or season, or other means determined to be § 648.80(f). mesh that is rigged in a manner that is appropriate to reduce bycatch of scup. (2) Mesh-size measurement. Mesh inconsistent with the minimum mesh (f) Exempted experimental fishing. sizes will be measured according to the size. A net that is stowed in The Regional Administrator may issue procedure specified in § 648.104(a)(2). conformance with one of the methods an exempted experimental fishing (3) Net modification. The owner or specified in § 648.23(b), and that can be permit (EFP) under the provisions of operator of a fishing vessel subject to the shown not to have been in recent use, § 600.745(b), consistent with paragraph minimum mesh requirements in is considered to be not available for (d)(2) of this section, to allow any vessel § 648.124 and paragraph (a)(1) of this immediate use. participating in a scup discard section shall not use any device, gear, or (6) Roller gear. The owner or operator mitigation research project to engage in material, including, but not limited to, of an otter trawl vessel issued a any of the following activities: Fish in nets, net strengtheners, ropes, lines, or moratorium permit pursuant to the applicable gear restriction area; use chafing gear, on the top of the regulated § 648.4(a)(6) shall not use roller rig trawl fishing gear that does not conform to the portion of a trawl net. However, one gear equipped with rollers greater than regulations; possess non-exempt species splitting strap and one bull rope (if 18 inches (45.7 cm) in diameter. specified in paragraphs (a)(2) and (b)(2) present), consisting of line or rope no of this section; or engage in any other more than 3 inches (7.2 cm) in diameter, (7) Procedures for changes. The activity necessary to project operations may be used if such splitting strap and/ minimum net mesh and the threshold for which an exemption from regulatory or bull rope does not constrict in any catch level at which it is required set provision is required. Vessels issued an manner the top of the regulated portion forth in paragraph (a)(1) of this section, EFP must comply with all conditions of the net, and one rope no greater that and the maximum roller diameter set and restrictions specified in the EFP. 0.75 inches (1.9 cm) in diameter forth in paragraph (a)(6) of this section, (1) A vessel participating in an extending the length of the net from the may be changed following the exempted experimental fishery in the belly to the terminus of the codend procedures in § 648.122. Scup Gear Restriction Area(s) must along the top, bottom, and each side of (b) Pot and trap gear restrictions. carry an EFP authorizing the activity the net. ‘‘Top of the regulated portion of Owners or operators of vessels subject to and any required Federal fishery permit the net’’ means the 50 percent of the this part must fish with scup pots or on board. entire regulated portion of the net that traps that comply with the following: (2) The Regional Administrator may (in a hypothetical situation) will not be (1) Degradable hinges. A scup pot or not issue an EFP unless s/he determines in contact with the ocean bottom during trap must have degradable hinges and that issuance is consistent with the a tow if the regulated portion of the net fasteners made of one of the following objectives of the FMP, the provisions of were laid flat on the ocean floor. For the degradable materials:

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(i) Untreated hemp, jute, or cotton ■ 38. Section 648.127 is revised to read take of sea turtles under authority of the string of 3⁄16 inches (4.8 mm) diameter as follows: Endangered Species Act under 50 CFR or smaller; parts 222 and 223. In addition to the (ii) Magnesium alloy, timed float § 648.127 Scup recreational fishing measures required under those parts, season. releases (pop-up devices) or similar NMFS will investigate the extent of sea magnesium alloy fasteners; or Vessels that are not eligible for a turtle takes in flynet gear and, if deemed (iii) Ungalvanized or uncoated iron moratorium permit under § 648.4(a)(6), appropriate, may develop and certify a wire of 0.094 inches (2.4 mm) diameter and fishermen subject to the possession Turtle Excluder Device for that gear. or smaller. limit specified in § 648.128(a), may not ■ 41. Section 648.130 is added to (iv) The use of a single non- possess scup, except from June 6 subpart H to read as follows: degradable retention device designed to through September 27. This time period prevent loss of the ghost panel after the may be adjusted pursuant to the § 648.130 Scup framework adjustments to degradable materials have failed is procedures in § 648.122. management measures. permitted provided the device does not ■ 39. Section 648.128 is added to (a) Within season management action. impair the egress design function of the subpart H to read as follows: See § 648.110(a). ghost panel by obstructing the opening (1) Adjustment process. The MAFMC or by preventing the panel from opening § 648.128 Scup possession restrictions. shall develop and analyze appropriate at such time that the degradable (a) Party/Charter and recreational management actions over the span of at fasteners have completely deteriorated. possession limits. No person shall least two MAFMC meetings. The (2) Escape vents. (i) All scup pots or possess more than 10 scup in, or MAFMC must provide the public with traps that have a circular escape vent harvested from, the EEZ unless that advance notice of the availability of the with a minimum of 3.1 inches (7.9 cm) person is the owner or operator of a recommendation(s), appropriate in diameter, or a square escape vent fishing vessel issued a scup moratorium justification(s) and economic and with a minimum of 2.25 inches (5.7 cm) permit, or is issued a scup dealer biological analyses, and the opportunity for each side, or an equivalent permit. Persons aboard a commercial to comment on the proposed rectangular escape vent. vessel that is not eligible for a scup adjustment(s) at the first meeting and (ii) The minimum escape vent size set moratorium permit are subject to this prior to and at the second MAFMC forth in paragraph (b)(2)(i) of this possession limit. The owner, operator, meeting. The MAFMC’s section may be revised following the and crew of a charter or party boat recommendations on adjustments or procedures in § 648.122. issued a scup moratorium permit are additions to management measures (3) Pot and trap identification. Pots or subject to the possession limit when must come from one or more of the traps used in fishing for scup must be carrying passengers for hire or when following categories: Adjustments marked with a code of identification carrying more than five crew members within existing ABC control rules; that may be the number assigned by the for a party boat, or more than three crew adjustments to the existing MAFMC risk Regional Administrator and/or the members for a charter boat. This policy; introduction of new AMs, identification marking as required by possession limit may be adjusted including sub-ACTs; minimum fish size; the vessel’s home port state. pursuant to the procedures in § 648.122. maximum fish size; gear restrictions; ■ 37. Section 648.126 is revised to read (b) If whole scup are processed into gear restricted areas; gear requirements as follows: fillets, an authorized officer will convert or prohibitions; permitting restrictions; the number of fillets to whole scup at recreational possession limits; § 648.126 Scup minimum fish sizes. the place of landing by dividing fillet recreational seasons; closed areas; (a) Moratorium (commercially) number by 2. If scup are filleted into a commercial seasons; commercial trip permitted vessels. The minimum size single (butterfly) fillet, such fillet shall limits; commercial quota system for scup is 9 inches (22.9 cm) TL for all be deemed to be from one whole scup. including commercial quota allocation vessels issued a moratorium permit (c) Scup harvested by vessels subject procedure and possible quota set asides under § 648.4(a)(6). If such a vessel is to the possession limit with more than to mitigate bycatch; recreational harvest also issued a charter and party boat one person aboard may be pooled in one limits; annual specification quota permit and is carrying passengers for or more containers. Compliance with setting process; FMP Monitoring hire, or carrying more than three crew the daily possession limit will be Committee composition and process; members if a charter boat, or more than determined by dividing the number of description and identification of EFH five crew members if a party boat, then scup on board by the number of persons (and fishing gear management measures the minimum size specified in aboard other than the captain and crew. that impact EFH); description and paragraph (b) of this section applies. If there is a violation of the possession identification of habitat areas of (b) Party/Charter permitted vessels limit on board a vessel carrying more particular concern; regional gear and recreational fishery participants. than one person, the violation shall be restrictions; regional season restrictions The minimum size for scup is 10.5 deemed to have been committed by the (including option to split seasons); inches (26.67 cm) TL for all vessels that owner and operator. restrictions on vessel size (LOA and do not have a moratorium permit, or for (d) Scup and scup parts harvested by GRT) or shaft horsepower; operator party and charter vessels that are issued a vessel with a moratorium or charter or permits; any other commercial or a moratorium permit but are fishing party boat scup permit, or in or from the recreational management measures; any with passengers for hire, or carrying EEZ north of 35°15.3′ N. lat., may not be other management measures currently more than three crew members if a landed with the skin removed. included in the FMP; and set aside charter boat, or more than five crew ■ 40. Section 648.129 is added to quota for scientific research. members if a party boat. subpart H to read as follows: (2) MAFMC recommendation. See (c) The minimum size applies to § 648.110(a)(2)(i) through (iv). whole fish or any part of a fish found § 648.129 Protection of threatened and (3) NMFS action. See § 648.110(a)(3)(i) in possession, e.g., fillets. These endangered sea turtles. through (iii). minimum sizes may be adjusted This section supplements existing (4) Emergency actions. See pursuant to the procedures in § 648.122. regulations issued to regulate incidental § 648.110(a)(4).

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(b) [Reserved] technical approaches to mitigating these (11) Total allowable landings on an ■ 42. Section 648.140 is revised to read sources of uncertainty, and any annual basis for a period not to exceed as follows: additional relevant information 3 years. considered in the ACT recommendation (12) Changes, as appropriate, to the § 648.140 Black sea bass Annual Catch process. Northeast Region SBRM, including the Limit (ACL). (1) Sectors. Commercial and CV-based performance standard, fishery (a) The Black Sea Bass Monitoring recreational specific ACTs shall be less stratification, and/or reports. Committee shall recommend to the than or equal to the sector-specific (13) Modification of the existing AM MAFMC separate ACLs for the ACLs. The Black Sea Bass Monitoring measures and ACT control rules utilized commercial and recreational scup Committee shall recommend any by the Black Sea Bass Monitoring fisheries, the sum total of which shall be reduction in catch necessary to address Committee. equal to the ABC recommended by the sector-specific management uncertainty, (b) Specification fishing measures. SSC. consistent with paragraph (a) of this The Demersal Species Committee shall (1) Sector allocations. The section. review the recommendations of the commercial and recreational fishing (2) Periodicity. ACTs may be Black Sea Bass Monitoring Committee. sector ACLs will be established established on an annual basis for up to Based on these recommendations and consistent with the allocation guidelines 3 years at a time, dependent on whether any public comment, the Demersal contained in the Summer Flounder, the SSC provides single or multiple-year Species Committee shall make its Scup, and Black Sea Bass Fishery ABC recommendations. recommendations to the MAFMC with Management Plan. (b) Performance review. The Black Sea respect to the measures necessary to (2) Periodicity. The black sea bass Bass Monitoring Committee shall assure that the ACLs are not exceeded. commercial and recreational sector conduct a detailed review of fishery The MAFMC shall review these ACLs may be established on an annual performance relative to ACTs in recommendations and, based on the basis for up to 3 years at a time, conjunction with any ACL performance recommendations and public comment, dependent on whether the SSC provides review, as outlined in § 648.140(b)(1)– make recommendations to the Regional single or multiple year ABC (3). Administrator with respect to the recommendations. ■ 44. Section 648.142 is revised to read measures necessary to assure that sector (b) Performance review. The Black Sea as follows: ACLs are not exceeded. Included in the Bass Monitoring Committee shall recommendation will be supporting conduct a detailed review of fishery § 648.142 Black sea bass specifications. documents, as appropriate, concerning performance relative to the sector ACLs (a) Commercial quota, recreational the environmental and economic at least every 5 years. landing limit, research set-aside, and impacts of the final rule. The Regional (1) If one or both of the sector-specific other specification measures. The Black Administrator will review these ACLs is exceeded with a frequency Sea Bass Monitoring Committee will recommendations and any greater than 25 percent (i.e., more than recommend to the Demersal Species recommendations of the ASMFC. After once in 4 years or any 2 consecutive Committee of the MAFMC and the such review, the Regional Administrator years), the Black Sea Bass Monitoring ASMFC, through the specification will publish a proposed rule in the Committee will review fishery process, for use in conjunction with the Federal Register to implement a performance information and make ACL and ACT, sector-specific research commercial quota, a recreational harvest recommendations to the MAFMC for set-asides, estimates of the sector-related limit, and additional management changes in measures intended to ensure discards, a recreational harvest limit, a measures for the commercial fishery. If ACLs are not exceeded as frequently. commercial quota, along with other the Regional Administrator determines (2) The MAFMC may specify more measures, as needed, that are projected that additional recreational measures frequent or more specific ACL to ensure the sector-specific ACL for an are necessary to assure that the performance review criteria as part of a upcoming year or years will not be recreational sector ACL is not exceeded, stock rebuilding plan following a exceeded. The following measures are to he or she will publish a proposed rule determination that the black sea bass be consisted by the Black Sea Bass in the Federal Register to implement stock has become overfished. Monitoring Committee: additional management measures for the (3) Performance reviews shall not (1) Research quota set from a range of recreational fishery. After considering substitute for annual reviews that occur 0 to 3 percent of the maximum allowed. public comment, the Regional to ascertain if prior year ACLs have been (2) A commercial quota, allocated Administrator will publish a final rule exceeded but may be conducted in annually. in the Federal Register to implement conjunction with such reviews. (3) A commercial possession limit for the measures necessary to ensure that ■ 43. Section 648.141 is revised to read all moratorium vessels, with the recreational sector ACL is not exceeded. as follows: provision that these quantities be the (c) Distribution of annual commercial maximum allowed to be landed within quota. The black sea bass commercial § 648.141 Black sea bass Annual Catch a 24-hour period (calendar day). quota will be allocated on a coastwide Target (ACT). (4) Commercial minimum fish size. basis. (a) The Black Sea Bass Monitoring (5) Minimum mesh size in the codend (d) Research quota. See § 648.21(g). Committee shall identify and review the or throughout the net and the catch ■ 45. Section 648.143 is revised to read relevant sources of management threshold that will require compliance as follows: uncertainty to recommend ACTs for the with the minimum mesh requirement. commercial and recreational fishing (6) Escape vent size. § 648.143 Black sea bass Accountability sectors as part of the black sea bass (7) A recreational possession limit set Measures. specification process. The Black Sea after the reduction for research quota. (a) Commercial sector fishery closure. Bass Monitoring Committee (8) Recreational minimum fish size. The Regional Administrator will recommendations shall identify the (9) Recreational season. monitor the harvest of commercial quota specific sources of management (10) Restrictions on gear other than based on dealer reports, state data, and uncertainty that were considered, otter trawls and pots or traps. other available information. All black

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sea bass landed for sale in the states (b) Recreational landings sector fishing year, administrative action will from North Carolina through Maine by closure. The Regional Administrator be taken as soon as is practicable to a vessel with a moratorium permit will monitor recreational landings based revisit the respective recommendations issued under § 648.4(a)(7) shall be on the best available data and shall of the two groups. The intent of this applied against the commercial annual determine if the recreational harvest action shall be to achieve alignment coastwide quota, regardless of where the limit has been met or exceeded. The through consistent state and Federal black sea bass were harvested. All black determination will be based on observed measures so no differential effects occur sea bass harvested north of 35°15.3′ N. landings and will not utilize projections to Federal permit holders. lat., and landed for sale in the states of future landings. At such time that the ■ 46. Section 648.144 is revised to read from North Carolina through Maine by available data indicate that the as follows: any vessel without a moratorium permit recreational harvest limit has been met and fishing exclusively in state waters, or exceeded, the Regional Administrator § 648.144 Black sea bass gear restrictions. will be counted against the quota by the shall publish notification in the Federal (a) Trawl gear restrictions—(1) state in which it is landed, pursuant to Register advising that, effective on a General. (i) Otter trawlers whose owners the FMP for the black sea bass fishery specific date, the black sea bass are issued a black sea bass moratorium adopted by the ASMFC. The Regional recreational fishery in the EEZ shall be permit and that land or possess 500 lb Administrator will determine the date closed for remainder of the calendar (226.8 kg) or more of black sea bass from on which the annual coastwide quota year. January 1 through March 31, or 100 lb will have been harvested; beginning on (1) Recreational ACL overage (45.4 kg) or more of black sea bass from that date and through the end of the evaluation. The recreational sector ACL April 1 through December 31, must fish calendar year, the EEZ north of 35°15.3′ will be evaluated based on a 3-year with nets that have a minimum mesh N. lat. will be closed to the possession moving average comparison of total size of 4.5-inch (11.43-cm) diamond of black sea bass. The Regional catch (landings and dead discards). Both mesh applied throughout the codend for Administrator will publish notification landings and dead discards will be at least 75 continuous meshes forward in the Federal Register advising that, evaluated in determining if the 3-year of the terminus of the net, or for upon, and after, that date, no vessel may average recreational sector ACL has codends with less than 75 meshes, the possess black sea bass in the EEZ north been exceeded. The 3-year moving entire net must have a minimum mesh of 35°15.3′ N. lat. during a closure, nor average will be phased in over the first size of 4.5-inch (11.43-cm) diamond may vessels issued a moratorium permit 3 years, beginning with 2012: Total mesh throughout. land black sea bass during the closure. recreational total catch from 2012 will (ii) Mesh sizes shall be measured Individual states will have the be compared to the 2012 recreational pursuant to the procedure specified in responsibility to close their ports to sector ACL; the average total catch from § 648.104(a)(2). landings of black sea bass during a both 2012 and 2013 will be compared to (2) Net modifications. No vessel closure, pursuant to the FMP for the the average of the 2012 and 2013 subject to this part shall use any device, black sea bass fishery adopted by the recreational sector ACLs; the average gear, or material, including, but not ASMFC. total catch from 2012, 2013, and 2014 limited to, nets, net strengtheners, (1) Commercial ACL overage will be compared to the average of the ropes, lines, or chafing gear, on the top evaluation. The commercial sector ACL 2012, 2013, and 2014 recreational sector of the regulated portion of a trawl net will be evaluated based on a single-year ACLs and, for all subsequent years, the except that one splitting strap and one examination of total catch (landings and preceding 3-year average recreational bull rope (if present) consisting of line dead discards). Both landings and dead total catch will be compared to the or rope no more than 3 inches (7.6 cm) discards will be evaluated in preceding 3-year average recreational in diameter may be used if such determining if the commercial sector sector ACL. splitting strap and/or bull rope does not ACL has been exceeded. (2) Recreational landing overage constrict, in any manner, the top of the (2) Commercial landings overage repayment. If available data indicate regulated portion of the net, and one repayment. Landings in excess of the that the recreational sector ACL has rope no greater than 0.75 inches (1.9 annual coastwide quota will be been exceeded and the landings have cm) in diameter extending the length of deducted from the quota allocation for exceeded the recreational harvest limit, the net from the belly to the terminus of the following year in the final rule that the exact amount of the landings the codend along the top, bottom, and establishes the annual quota. The overage (in pounds) will be deducted, as each side of the net. ‘‘Top of the overage deduction will be based on soon as possible, from a subsequent regulated portion of the net’’ means the landings for the current year through single fishing year recreational sector 50 percent of the entire regulated September 30, and landings for the ACT. portion of the net that (in a hypothetical previous calendar year were not (c) Non-landing accountability situation) will not be in contact with the included when the overage deduction measures, by sector. In the event that a ocean bottom during a tow if the was made in the final rule that sector ACL has been exceeded and the regulated portion of the net were laid established the annual coastwide quota overage has not been accommodated flat on the ocean floor. For the purpose for the current year. If the Regional through landings-based AMs, then the of this paragraph, head ropes shall not Administrator determines during the exact amount of the overage in pounds be considered part of the top of the fishing year that any part of an overage by which the sector ACL was exceeded regulated portion of a trawl net. deduction was based on erroneous will be deducted, as soon as possible, (3) Mesh obstruction or constriction. landings data that were in excess of from a subsequent single fishing year (i) A fishing vessel may not use any actual landings for the period applicable sector ACL. mesh configuration, mesh construction, concerned, he/she will restore the (d) State/Federal disconnect AM. If or other means on or in the top of the overage that was deducted in error to the total catch, allowable landings, net, as defined in paragraph (a)(2) of this the appropriate quota allocation. The commercial quotas, and/or recreational section, that obstructs the meshes of the Regional Administrator will publish harvest limit measures adopted by the net in any manner, or otherwise causes notification in the Federal Register ASMFC Black Sea Bass Management the size of the meshes of the net while announcing the restoration. Board and the MAFMC differ for a given in use to diminish to a size smaller than

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the minimum established pursuant to (C) Ungalvanized or uncoated iron more than 100 lb (45.4 kg) of black sea paragraph (a)(1)(i) of this section. wire of 0.094 inches (2.4 mm) diameter bass from April 1 through December 31. (ii) No person on any vessel may or smaller. Black sea bass on board these vessels possess or fish with a net capable of (ii) The use of a single non-degradable shall be stored so as to be readily catching black sea bass in which the retention device designed to prevent available for inspection in a standard bars entering or exiting the knots twist loss of the ghost panel after the 100-lb (45.4-kg) tote. around each other. degradable materials have failed is ■ 48. Section 648.146 is revised to read (4) Stowage of nets. Otter trawl vessels permitted, provided the device does not as follows: subject to the minimum mesh-size impair the egress design function of the requirement of paragraph (a)(1)(i) of this ghost panel by obstructing the opening § 648.146 Black sea bass recreational section may not have ‘‘available for or by preventing the panel from opening fishing season. immediate use’’ any net or any piece of at such time that the degradable Vessels that are not eligible for a net that does not meet the minimum fasteners have completely deteriorated. moratorium permit under § 648.4(a)(7), mesh size requirement, or any net, or ■ 47. Section 648.145 is revised to read and fishermen subject to the possession any piece of net, with mesh that is as follows: limit specified in § 648.145(a), may rigged in a manner that is inconsistent possess black sea bass from May 22 with the minimum mesh size § 648.145 Black sea bass possession limit. through October 11 and November 1 requirement. A net that is stowed in (a) No person shall possess more than through December 31, unless this time conformance with one of the methods 25 black sea bass in, or harvested from period is adjusted pursuant to the specified in § 648.23(b) and that can be the EEZ unless that person is the owner procedures in § 648.142. shown not to have been in recent use, or operator of a fishing vessel issued a ■ 49. Section 648.147 is revised to read is considered to be not ‘‘available for black sea bass moratorium permit, or is as follows: immediate use.’’ issued a black sea bass dealer permit. (5) Roller gear. Rollers used in roller Persons aboard a commercial vessel that § 648.147 Black sea bass minimum fish rig or rock hopper trawl gear shall be no is not eligible for a black sea bass sizes. larger than 18 inches (45.7 cm) in moratorium permit are subject to this (a) Moratorium (commercially) diameter. possession limit. The owner, operator, permitted vessels. The minimum size (b) Pot and trap gear restrictions—(1) and crew of a charter or party boat for black sea bass is 11 inches (27.94 Gear marking. The owner of a vessel issued a black sea bass moratorium cm) total length for all vessels issued a issued a black sea bass moratorium permit are subject to the possession moratorium permit under § 648.4(a)(7) permit must mark all black sea bass pots limit when carrying passengers for hire that fish for, possess, land or retain or traps with the vessel’s USCG or when carrying more than five crew black sea bass in or from U.S. waters of documentation number or state members for a party boat, or more than the western Atlantic Ocean from registration number. three crew members for a charter boat. 35°15.3′ N. Lat., the latitude of Cape (2) All black sea bass traps or pots This possession limit may be adjusted Hatteras Light, North Carolina, must have two escape vents placed in pursuant to the procedures in § 648.142. northward to the U.S.-Canadian border. lower corners of the parlor portion of (b) If whole black sea bass are The minimum size may be adjusted for the pot or trap that each comply with processed into fillets, an authorized commercial vessels pursuant to the one of the following minimum size officer will convert the number of fillets procedures in § 648.142. requirements: 1.375 inches by 5.75 to whole black sea bass at the place of (b) Party/Charter permitted vessels inches (3.49 cm by 14.61 cm); a circular landing by dividing fillet number by and recreational fishery participants. vent of 2.5 inches (6.4 cm) in diameter; two. If black sea bass are filleted into a The minimum fish size for black sea or a square vent with sides of 2 inches single (butterfly) fillet, such fillet shall bass is 12.5 inches (31.75 cm) TL for all (5.1 cm), inside measure; however, be deemed to be from one whole black vessels that do not qualify for a black sea bass traps constructed of sea bass. moratorium permit, and for party boats wooden laths instead may have escape (c) Black sea bass harvested by vessels holding a moratorium permit, if fishing vents constructed by leaving spaces of at subject to the possession limit with with passengers for hire or carrying least 1.375 inches (3.49 cm) between more than one person aboard may be more than five crew members, and for two sets of laths in the parlor portion of pooled in one or more containers. charter boats holding a moratorium the trap. These dimensions for escape Compliance with the daily possession permit, if fishing with more than three vents and lath spacing may be adjusted limit will be determined by dividing the crew members. pursuant to the procedures in § 648.140. number of black sea bass on board by (c) The minimum size in this section (3) Ghost panel. (i) Black sea bass the number of persons aboard, other applies to the whole fish or any part of traps or pots must contain a ghost panel than the captain and the crew. If there a fish found in possession (e.g., fillets), affixed to the trap or pot with is a violation of the possession limit on except that party or charter vessels degradable fasteners and hinges. The board a vessel carrying more than one possessing valid state permits opening to be covered by the ghost person, the violation shall be deemed to authorizing filleting at sea may possess panel must measure at least 3.0 inches have been committed by the owner and fillets smaller than the size specified if (7.62 cm) by 6.0 inches (15.24 cm). The operator of the vessel. skin remains on the fillet and all other ghost panel must be affixed to the pot (d) Owners or operators of otter trawl state requirements are met. or trap with hinges and fasteners made vessels issued a moratorium permit ■ 50. Section 648.148 is added to of one of the following degradable under § 648.4(a)(7) and fishing with, or subpart I to read as follows: materials: possessing on board, nets or pieces of (A) Untreated hemp, jute, or cotton net that do not meet the minimum mesh § 648.148 Special management zones. string of 3⁄16 inches (4.8 mm) diameter requirements specified in § 648.144(a) The recipient of a U.S. Army Corps of or smaller; or and that are not stowed in accordance Engineers permit for an artificial reef, (B) Magnesium alloy, timed float with § 648.144(a)(4) may not retain more fish attraction device, or other releases (pop-up devices) or similar than 500 lb (226.8 kg) of black sea bass modification of habitat for purposes of magnesium alloy fasteners; or from January 1 through March 31, or fishing may request that an area

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surrounding and including the site be ■ 51. Section 648.149 is added to sectors as part of the bluefish designated by the MAFMC as a special subpart I to read as follows: specification process. The Bluefish management zone (SMZ). The MAFMC Monitoring Committee may prohibit or restrain the use of § 648.149 Black sea bass framework recommendations shall identify the adjustments to management measures. specific types of fishing gear that are not specific sources of management compatible with the intent of the (a) Within season management action. uncertainty that were considered, artificial reef or fish attraction device or See § 648.110(a). technical approaches to mitigating these other habitat modification within the (1) Adjustment process. See sources of uncertainty, and any SMZ. The establishment of an SMZ will § 648.110(a)(1). additional relevant information be effected by a regulatory amendment, (2) MAFMC recommendation. See considered in the ACT recommendation pursuant to the following procedure: § 648.110(a)(2)(i) through (iv). process. (a) A SMZ monitoring team (3) Regional Administrator action. See (1) Sectors. The sum of the comprised of members of staff from the § 648.110(a)(3)(i) through (iii). commercial and recreational sector- MAFMC, NMFS Northeast Region, and (4) Emergency actions. See specific ACTs shall be less than or equal NMFS Northeast Fisheries Science § 648.110(a)(4). to the fishery level ACL. The Bluefish Center will evaluate the request in the (b) [Reserved] Monitoring Committee shall recommend form of a written report, considering the ■ 52. Section 648.160 is revised to read any reduction in catch necessary to following criteria: as follows: address management uncertainty, (1) Fairness and equity; consistent with paragraph (a) of this § 648.160 Bluefish Annual Catch Limit section. A total of 83 percent of the (2) Promotion of conservation; (ACL). fishery-level ACT will be allocated to (3) Avoidance of excessive shares; (a) The Bluefish Monitoring (4) Consistency with the objectives of the recreational fishery. A total of 17 Committee shall recommend to the percent of the fishery-level ACT will be Amendment 9 to the Summer Flounder, MAFMC an ACL for the bluefish fishery, Scup, and Black Sea Bass Fishery allocated to the commercial fishery. which shall be equal to the ABC (2) Periodicity. ACTs may be Management Plan, the Magnuson- recommended by the SSC. established on an annual basis for up to Stevens Act, and other applicable law; (1) Periodicity. The bluefish fishery 3 years at a time, dependent on whether (5) The natural bottom in and ACL may be established on an annual the SSC provides single or multiple-year surrounding potential SMZs; and basis for up to 3 years at a time, ABC recommendations. (6) Impacts on historical uses. dependent on whether the SSC provides (b) Performance review. The Bluefish (b) The MAFMC Chairman may single or multiple-year ABC Monitoring Committee shall conduct a schedule meetings of MAFMC’s recommendations. detailed review of fishery performance industry advisors and/or the SSC to (2) [Reserved] relative to ACTs in conjunction with review the report and associated (b) Performance review. The Bluefish any ACL performance review, as documents and to advise the MAFMC. Monitoring Committee shall conduct a outlined in § 648.160(b)(1) through (3). The MAFMC Chairman may also detailed review of fishery performance ■ 54. Section 648.162 is revised to read schedule public hearings. relative to the ACL at least every 5 as follows: (c) The MAFMC, following review of years. the SMZ monitoring teams’s report, (1) If the ACL is exceeded with a § 648.162 Bluefish specifications. supporting data, public comments, and frequency greater than 25 percent (i.e., (a) Recommended measures. Based on other relevant information, may more than once in 4 years or any 2 the annual review and requests for recommend to the Regional consecutive years), the Bluefish research quota as described in Administrator that a SMZ be approved. Monitoring Committee will review paragraph (h) of this section, the Such a recommendation will be fishery performance information and Bluefish Monitoring Committee shall accompanied by all relevant background make recommendations to the MAFMC recommend to the Coastal Migratory information. for changes in measures intended to Committee of the MAFMC and the (d) The Regional Administrator will ensure the ACL is not exceeded as ASMFC the following measures to review the MAFMC’s recommendation. frequently. ensure that the ACL specified by the If the Regional Administrator concurs in (2) The MAFMC may specify more process outlined in § 648.160(a) will not the recommendation, he or she will frequent or more specific ACL be exceeded: publish a proposed rule in the Federal performance review criteria as part of a (1) A fishery-level ACT; Register in accordance with the stock rebuilding plan following the (2) Research quota set from a range of recommendations. If the Regional determination that the bluefish stock 0 to 3 percent of TALs; Administrator rejects the MAFMC’s has become overfished. (3) Commercial minimum fish size; recommendation, he or she shall advise (4) Minimum mesh size; (3) Performance reviews shall not (5) Recreational possession limit set the MAFMC in writing of the basis for substitute for annual reviews that occur the rejection. from a range of 0 to 20 bluefish; to ascertain if prior year ACLs have been (6) Recreational minimum fish size; (e) The proposed rule to establish a exceeded, but may be conducted in (7) Recreational season; SMZ shall afford a reasonable period for conjunction with such reviews. (8) Restrictions on gear other than public comment. Following a review of ■ 53. Section 648.161 is revised to read otter trawls and gill nets; public comments and any information as follows: (9) Changes, as appropriate, to the or data not previously available, the Northeast Region SBRM, including the Regional Administrator will publish a § 648.161 Bluefish Annual Catch Targets CV-based performance standard, fishery final rule if he or she determines that (ACTs). stratification, and/or reports; and the establishment of the SMZ is (a) The Bluefish Monitoring (10) Modification of existing AM supported by the substantial weight of Committee shall identify and review the measures and ACT control rules utilized evidence in the record and consistent relevant sources of management by the Bluefish Monitoring Committee. with the Magnuson-Stevens Act and uncertainty to recommend ACTs for the (b) TAL—(1) Recreational harvest other applicable law. commercial and recreational fishing limit. If research quota is specified as

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described in paragraph (g) of this allocations does not add to 100 because appropriate, concerning the section, the recreational harvest limit of rounding. environmental and economic impacts of will be based on the TAL remaining (2) [Reserved] the recommendation. The Regional after the deduction of the research (e) Quota transfers and combinations. Administrator shall review the quota. Any state implementing a state recommendation of the ASMFC and the (2) Commercial quota. If 17 percent of commercial quota for bluefish may MAFMC. After such review, NMFS will the TAL is less than 10.5 million lb (4.8 request approval from the Regional publish a proposed rule in the Federal million kg) and the recreational fishery Administrator to transfer part or all of Register to implement a revision in the is not projected to land its harvest limit its annual quota to one or more states. state shares. After considering public for the upcoming year, the commercial Two or more states implementing a state comment, NMFS will publish a final fishery may be allocated up to 10.5 commercial quota for bluefish may rule in the Federal Register to million lb (4.8 million kg) as its quota, request approval from the Regional implement the changes in allocation. provided that the combination of the Administrator to combine their quotas, (g) Research quota. See § 648.21(g). or part of their quotas, into an overall projected recreational landings and the ■ 55. Section 648.163 is revised to read regional quota. Requests for transfer or commercial quota does not exceed the as follows: TAL. If research quota is specified as combination of commercial quotas for described in paragraph (g) of this bluefish must be made by individual or § 648.163 Bluefish Accountability section, the commercial quota will be joint letter(s) signed by the principal Measures (AMs). based on the TAL remaining after the state official with marine fishery (a) ACL overage evaluation. The ACL deduction of the research quota. management responsibility and will be evaluated based on a single-year (c) Annual fishing measures. The expertise, or his/her previously named examination of total catch (landings and MAFMC’s Coastal Migratory Committee designee, for each state involved. The dead discards). Both landings and dead shall review the recommendations of letter(s) must certify that all pertinent discards will be evaluated in the Bluefish Monitoring Committee. state requirements have been met and determining if the ACL has been Based on these recommendations and identify the states involved and the exceeded. any public comment, the Coastal amount of quota to be transferred or (b) Commercial sector EEZ closure. Migratory Committee shall recommend combined. NMFS shall close the EEZ to fishing for (1) Within 10 working days following to the MAFMC measures necessary to bluefish by commercial vessels for the the receipt of the letter(s) from the states ensure that the ACL will not be remainder of the calendar year by involved, the Regional Administrator exceeded. The MAFMC shall review publishing notification in the Federal shall notify the appropriate state these recommendations and, based on Register if the Regional Administrator officials of the disposition of the the recommendations and any public determines that the inaction of one or request. In evaluating requests to comment, recommend to the Regional more states will cause the ACL specified transfer a quota or combine quotas, the Administrator by September 1 measures in § 648.160(a) to be exceeded, or if the Regional Administrator shall consider necessary to ensure that the applicable commercial fisheries in all states have whether: ACL will not be exceeded. The been closed. NMFS may reopen the EEZ (i) The transfer or combination would MAFMC’s recommendations must if earlier inaction by a state has been preclude the overall annual quota from include supporting documentation, as remedied by that state, or if commercial being fully harvested; appropriate, concerning the (ii) The transfer addresses an fisheries in one or more states have been environmental, economic, and social unforeseen variation or contingency in reopened without causing the ACL to be impacts of the recommendations. The the fishery; and exceeded. Regional Administrator shall review (iii) The transfer is consistent with the (c) State commercial landing quotas. these recommendations and any objectives of the Bluefish FMP and The Regional Administrator will recommendations of the ASMFC. After Magnuson-Stevens Act. monitor state commercial quotas based such review, NMFS will publish a (2) The transfer of quota or the on dealer reports and other available proposed rule in the Federal Register as combination of quotas will be valid only information and shall determine the soon as practicable, to implement an for the calendar year for which the date when a state commercial quota will ACL, ACTs, research quota, a coastwide request was made. be harvested. NMFS shall publish commercial quota, individual state (3) A state may not submit a request notification in the Federal Register commercial quotas, a recreational to transfer quota or combine quotas if a advising a state that, effective upon a harvest limit, and additional request to which it is party is pending specific date, its commercial quota has management measures for the before the Regional Administrator. A been harvested and notifying vessel and commercial and recreational fisheries to state may submit a new request when it dealer permit holders that no ensure that the ACL will not be receives notification that the Regional commercial quota is available for exceeded. After considering public Administrator has disapproved the landing bluefish in that state. comment, NMFS will publish a final previous request or when notification of (1) Commercial landings overage rule in the Federal Register. the approval of the transfer or repayment. All bluefish landed for sale (d) Distribution of annual commercial combination has been published in the in a state shall be applied against that quota.—(1) The annual commercial Federal Register. state’s annual commercial quota, quota will be distributed to the states, (f) Based upon any changes in the regardless of where the bluefish were based upon the following percentages; landings data available from the states harvested. Any overages of the state each followed by its allocation in for the base years 1981–89, the ASMFC commercial quota landed in any state parentheses: ME (0.6685); NH (0.4145); and the MAFMC may recommend to the will be deducted from that state’s MA (6.7167); RI (6.8081); CT (1.2663); Regional Administrator that the states’ annual quota for the following year, NY (10.3851); NJ (14.8162) DE (1.8782); shares specified in paragraph (d)(1) of irrespective of whether the fishery-level MD (3.0018); VA (11.8795); NC this section be revised. The MAFMC’s ACL is exceeded. If a state has increased (32.0608); SC (0.0352); GA (0.0095); and and the ASMFC’s recommendation must or reduced quota through the transfer FL (10.0597). Note: The sum of all state include supporting documentation, as process described in § 648.162, then any

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overage will be measured against that of the two groups. The intent of this ■ 59. Section 648.167 is added to state’s final adjusted quota. action shall be to achieve alignment subpart J to read as follows: (2) If there is a quota overage at the through consistent state and Federal end of the fishing year among states measures so no differential effects occur § 648.167 Bluefish framework adjustment to management measures. involved in the combination of quotas, to Federal permit holders. the overage will be deducted from the (a) Within-season management action. ■ 56. Section 648.164 is revised to read The MAFMC may, at any time, initiate following year’s quota for each of the as follows: states involved in the combined quota, action to add or adjust management irrespective of whether the fishery-level § 648.164 Bluefish possession measures if it finds that action is ACL is exceeded. The deduction will be restrictions. necessary to meet or be consistent with the goals and objectives of the Bluefish proportional, based on each state’s (a) No person shall possess more than FMP. relative share of the combined quota for 15 bluefish in, or harvested from, the the previous year. A transfer of quota or (1) Adjustment process. After a EEZ unless that person is the owner or management action has been initiated, combination of quotas does not alter any operator of a fishing vessel issued a state’s percentage share of the overall the MAFMC shall develop and analyze bluefish commercial permit or is issued appropriate management actions over quota specified in § 648.162(d)(1). a bluefish dealer permit. Persons aboard (d) Recreational landings AM when the span of at least two MAFMC a vessel that is not issued a bluefish meetings. The MAFMC shall provide the ACL is exceeded and no sector-to- commercial permit are subject to this sector transfer of allowable landings has the public with advance notice of the possession limit. The owner, operator, availability of both the proposals and occurred. If the fishery-level ACL is and crew of a charter or party boat exceeded and landings from the the analysis and the opportunity to issued a bluefish commercial permit are comment on them prior to and at the recreational fishery are determined to be not subject to the possession limit when the sole cause of the overage, and no second MAFMC meeting. The MAFMC’s not carrying passengers for hire and recommendation on adjustments or transfer between the commercial and when the crew size does not exceed five recreational sector was made for the additions to management measures for a party boat and three for a charter must come from one or more of the fishing year, as outlined in boat. § 648.162(b)(2), then the exact amount, following categories: Adjustments (b) Bluefish harvested by vessels within existing ABC control rule levels; in pounds, by which the ACL was subject to the possession limit with exceeded will be deducted, as soon as adjustments to the existing MAFMC risk more than one person on board may be possible, from a subsequent single policy; introduction of new AMs, pooled in one or more containers. fishing year recreational ACT. including sub-ACTs; minimum fish size; (e) AM for when the ACL is exceeded Compliance with the daily possession maximum fish size; gear restrictions; and a sector-to-sector transfer of limit will be determined by dividing the gear requirements or prohibitions; allowable landings has occurred. If the number of bluefish on board by the permitting restrictions; recreational fishery-level ACL is exceeded and number of persons on board, other than possession limit; recreational season; landings from the recreational fishery the captain and the crew. If there is a closed areas; commercial season; and/or the commercial fishery are violation of the possession limit on description and identification of EFH; determined to have caused the overage, board a vessel carrying more than one fishing gear management measures to and a transfer between the commercial person, the violation shall be deemed to protect EFH; designation of habitat areas and recreational sector has occurred for have been committed by the owner and of particular concern within EFH; the fishing year, as outlined in operator of the vessel. changes to the Northeast Region SBRM § 648.162(b)(2), then the amount ■ 57. Section 648.165 is revised to read (including the CV-based performance transferred between the recreational and as follows: standard, the means by which discard commercial sectors may be reduced by data are collected/obtained, fishery § 648.165 Bluefish minimum fish sizes. the ACL overage amount (pound-for- stratification, reports and/or industry- pound repayment) in a subsequent, If the MAFMC determines through its funded observers or observer set-aside single fishing year if the Bluefish annual review or framework adjustment programs); and any other management Monitoring Committee determines that process that minimum fish sizes are measures currently included in the the ACL overage was the result of too necessary to ensure that the fishing FMP. Measures that require significant liberal a landings transfer between the mortality rate is not exceeded, or to departures from previously two sectors. attain other FMP objectives, such contemplated measures or that are (f) Non-landing AMs. In the event that measures will be enacted through the otherwise introducing new concepts the ACL has been exceeded and the procedure specified in § 648.162(c) or may require an amendment of the FMP overage has not been accommodated 648.167. instead of a framework adjustment. through the AM measures in paragraphs ■ 58. Section 648.166 is added to (2) MAFMC recommendation. After (a) through (d) of this section, then the subpart J to read as follows: developing management actions and exact amount, in pounds, by which the receiving public testimony, the MAFMC ACL was exceeded shall be deducted, as § 648.166 Bluefish gear restrictions. shall make a recommendation to the soon as possible, from a subsequent, If the MAFMC determines through its Regional Administrator. The MAFMC’s single fishing year ACL. annual review or framework adjustment recommendation must include (g) State/Federal disconnect AM. If process that gear restrictions are supporting rationale and, if management the total catch, allowable landings, necessary to ensure that the ACL is not measures are recommended, an analysis commercial quotas, and/or recreational exceeded, or to attain other FMP of impacts and a recommendation to the harvest limit measures adopted by the objectives, such measures, subject to the Regional Administrator on whether to ASMFC Bluefish Management Board gear other than trawls and gillnets issue the management measures as a and the MAFMC differ for a given restrictions in § 648.162 regarding final rule. If the MAFMC recommends fishing year, administrative action will specifications, will be enacted through that the management measures should be taken as soon as is practicable to the procedure specified in § 648.162(c) be issued as a final rule, the MAFMC revisit the respective recommendations or 648.167. must consider at least the following

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factors and provide support and (1) Periodicity. The spiny dogfish ACL the SSC provides single or multiple year analysis for each factor considered: may be established on an annual basis ABC recommendations. (i) Whether the availability of data on for up to 5 years at a time, dependent (c) Performance review. The Spiny which the recommended management on whether the SSC provides single or Dogfish Monitoring Committee shall measures are based allows for adequate multiple-year ABC recommendations. conduct a detailed review of fishery time to publish a proposed rule, and (2) [Reserved] performance relative to TALs in whether regulations have to be in place (b) Performance review. The Spiny conjunction with any ACL performance for an entire harvest/fishing season; Dogfish Monitoring Committee shall review, as outlined in § 648.230(b). (ii) Whether there has been adequate conduct a detailed review of fishery ■ 62. Reserved § 648.232 is amended by notice and opportunity for participation performance relative to the ACL at least revising the section heading and adding by the public and members of the every 5 years. text to read as follows: affected industry in the development of (1) If an ACL is exceeded with a § 648.232 Spiny dogfish specifications. the MAFMC’s recommended frequency greater than 25 percent (i.e., management measures; more than once in 4 years or any (a) Commercial quota and other (iii) Whether there is an immediate 2 consecutive years), the Spiny Dogfish specification measures. The Spiny need to protect the resource; and Monitoring Committee will review Dogfish Monitoring Committee shall (iv) Whether there will be a fishery performance information and recommend to the Joint Spiny Dogfish continuing evaluation of management make recommendations to the Councils Committee a TAL (i.e., annual measures adopted following their for changes in measures intended to coastwide commercial quota) and any implementation as a final rule. ensure ACLs are not exceeded as other measures, including those in (3) Action by NMFS. If the MAFMC’s frequently. paragraphs (a)(1) through (7) of this recommendation includes adjustments (2) The Councils may specify more section, that are necessary to ensure that or additions to management measures frequent or more specific ACL the commercial ACL will not be and, after reviewing the MAFMC’s performance review criteria as part of a exceeded in any fishing year recommendation and supporting stock rebuilding plan following a (May 1–April 30), for a period of 1–5 information: determination that the spiny dogfish fishing years. The measures that may be (i) If NMFS concurs with the stock has become overfished. recommended include, but are not MAFMC’s recommended management (3) Performance reviews shall not limited to: (1) Minimum or maximum fish sizes; measures and determines that the substitute for annual reviews that occur (2) Seasons; recommended management measures to ascertain if prior year ACLs have been (3) Mesh size restrictions; should be issued as a final rule based on exceeded, but may be conducted in (4) Trip limits; the factors specified in paragraph (a)(2) conjunction with such reviews. (5) Changes to the Northeast Region of this section, the measures will be ■ 61. Section 648.231 is revised to read SBRM, including the CV-based issued as a final rule in the Federal as follows: performance standard, fishery Register. stratification, and/or reports; (ii) If NMFS concurs with the § 648.231 Spiny dogfish Annual Catch (6) Other gear restrictions; and MAFMC’s recommendation and Target (ACT) and Total Allowable Level of (7) Changes to AMs and ACT control Landings (TAL). determines that the recommended rules. management measures should be (a) The Spiny Dogfish Monitoring (b) Joint Spiny Dogfish Committee published first as a proposed rule, the Committee shall identify and review the recommendation. The Councils’ Joint measures will be published as a relevant sources of management Spiny Dogfish Committee shall review proposed rule in the Federal Register. uncertainty to recommend an ACT and the recommendations of the Spiny After additional public comment, if a TAL for the fishery as part of the spiny Dogfish Monitoring Committee. Based NMFS concurs with the MAFMC’s dogfish specification process specified on these recommendations and any recommendation, the measures will be in § 648.232. The Spiny Dogfish public comments, the Joint Spiny issued as a final rule in the Federal Monitoring Committee Dogfish Committee shall recommend to Register. recommendations shall identify the the Councils a TAL, and possibly other (iii) If NMFS does not concur, the specific sources of management measures, including those specified in MAFMC will be notified in writing of uncertainty that were considered, paragraphs (a)(1) through (7) of this the reasons for the non-concurrence. technical approaches to mitigating these section, necessary to ensure that the (b) Emergency action. Nothing in this sources of uncertainty, domestic ACL specified in § 648.230 will not be section is meant to derogate from the commercial and recreational discards, exceeded in any fishing year (May 1– authority of the Secretary to take and any additional relevant information April 30), for a period of 1–5 fishing emergency action under section 305(e) considered in the ACT and TAL years. of the Magnuson-Stevens Act. recommendation process. (c) Council recommendations. (1) The ■ 60. Section 648.230 is revised to read (1) The ACT shall be identified as less Councils shall review these as follows: than or equal to the ACL. recommendations and, based on the (2) The Spiny Dogfish Monitoring recommendations and any public § 648.230 Spiny dogfish Annual Catch Committee shall recommend a TAL to comments, recommend to the Regional Limits (ACLs). the Joint Spiny Dogfish Committee, Administrator a TAL and other (a) The Spiny Dogfish Monitoring which accounts for domestic measures necessary to ensure that the Committee shall recommend to the Joint commercial and recreational discards ACL specified in § 648.230 will not be Spiny Dogfish Committee, an ACL for (ACT minus domestic dead discards). exceeded in any fishing year, for a the commercial spiny dogfish fishery, The TAL is equivalent to the annual period of 1–5 fishing years. The which shall equal to the domestic ABC coastwide commercial quota. Councils’ recommendations must (i.e., the ABC minus Canadian catch) (b) Periodicity. The TAL may be include supporting documentation, as recommended by the SSC as specified established on an annual basis for up to appropriate, concerning the in § 648.20. 5 years at a time, dependent on whether environmental, economic, and other

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impacts of the recommendations. The both landings and dead discards) to within existing ABC control rule levels; Regional Administrator shall initiate a determine if the ACL has been adjustments to the existing MAFMC risk review of these recommendations and exceeded. policy; introduction of new AMs, may modify the recommended quota (c) Overage repayment. In the event including sub-ACTs; minimum fish size; and other management measures to that the ACL has been exceeded in a maximum fish size; gear requirements, ensure that the ACL specified in given fishing year, the exact amount in restrictions, or prohibitions (including, § 648.230 will not be exceeded in any pounds by which the ACL was exceeded but not limited to, mesh size restrictions fishing year, for a period of 1–5 fishing shall be deducted, as soon as possible and net limits); regional gear years. The Regional Administrator may from a subsequent single fishing year restrictions; permitting restrictions, and modify the Councils’ recommendations ACL. reporting requirements; recreational using any of the measures that were not ■ 64. Section 648.235 is revised to read fishery measures (including possession rejected by both Councils. as follows: and size limits and season and area (2) After such review, NMFS shall restrictions); commercial season and publish a proposed rule in the Federal § 648.235 Spiny dogfish possession and area restrictions; commercial trip or Register specifying a TAL, adjustments landing restrictions. possession limits; fin weight to spiny to ACL, ACT, and TAL resulting from (a) Quota Period 1. From May 1 dogfish landing weight restrictions; the accountability measures specified in through October 31, vessels issued a onboard observer requirements; § 648.233, and other measures necessary valid Federal spiny dogfish permit commercial quota system (including to ensure that the ACL will not be specified under § 648.4(a)(11) may: commercial quota allocation procedures exceeded in any fishing year, for a (1) Possess up to 3,000 lb (1.36 mt) of and possible quota set-asides to mitigate period of 1–5 fishing years. After spiny dogfish per trip; and bycatch, conduct scientific research, or considering public comments, NMFS (2) Land only one trip of spiny for other purposes); recreational harvest shall publish a final rule in the Federal dogfish per calendar day. limit; annual quota specification Register to implement the TAL and (b) Quota Period 2. From November 1 process; FMP Monitoring Committee other measures. through April 30, vessels issued a valid composition and process; description (d) [Reserved] Federal spiny dogfish permit specified and identification of essential fish (e) Distribution of annual quota. (1) under § 648.4(a)(11) may: habitat; description and identification of The TAL (i.e., annual coastwide (1) Possess up to 3,000 lb (1.36 mt) of habitat areas of particular concern; commercial quota) specified according spiny dogfish per trip; and overfishing definition and related (2) Land only one trip of spiny to the process outlined section § 648.231 thresholds and targets; regional season dogfish per calendar day. shall be allocated between two semi- restrictions (including option to split (c) Regulations governing the harvest, annual quota periods as follows: May 1 seasons); restrictions on vessel size possession, landing, purchase, and sale through October 31 (57.9 percent); and (length and GRT) or shaft horsepower; of shark fins are found at part 600, November 1 through April 30 target quotas; measures to mitigate subpart N, of this chapter. (42.1 percent). marine mammal entanglements and (2) All spiny dogfish landed for a § 648.237 [Removed and reserved] interactions; regional management; commercial purpose in the states from changes to the Northeast Region SBRM, ■ 65. Section 648.237 is removed and Maine through Florida shall be applied including the CV-based performance reserved. against the applicable semi-annual standard, the means by which discard commercial quota, regardless of where § 648.238 [Added and reserved] data are collected/obtained, fishery the spiny dogfish were harvested. stratification, reports, and/or industry- ■ 63. Reserved § 648.233 is amended by ■ 66. Section 648.238 is added to subpart L and reserved. funded observers or observer set-aside revising the section heading and adding program; any other management ■ text to read as follows: 67. Section 648.239 is added to measures currently included in the subpart L to read as follows: § 648.233 Spiny dogfish Accountability Spiny Dogfish FMP; and measures to Measures (AMs). § 648.239 Spiny dogfish framework regulate aquaculture projects. Measures (a) Commercial EEZ closure. The adjustments to management measures. that require significant departures from Regional Administrator shall determine (a) Within season management action. previously contemplated measures or the date by which the quota for each The Councils may, at any time, initiate that are otherwise introducing new semi-annual period described in action to add or adjust management concepts may require an amendment of § 648.232(e)(1) will be harvested and measures if they find that action is the FMP instead of a framework shall close the EEZ to fishing for spiny necessary to meet or be consistent with adjustment. dogfish on that date for the remainder the goals and objectives of the Spiny (2) Councils’ recommendation. After of that semi-annual period by Dogfish FMP. developing management actions and publishing notification in the Federal (1) Adjustment process. After the receiving public testimony, the Councils Register. Upon the closure date, and for Councils initiate a management action, shall make a recommendation approved the remainder of the semi-annual quota they shall develop and analyze by a majority of each Council’s period, no vessel may fish for or possess appropriate management actions over members, present and voting, to the spiny dogfish in the EEZ, nor may the span of at least two Council Regional Administrator. The Councils’ vessels issued a spiny dogfish permit meetings. The Councils shall provide recommendation must include under this part land spiny dogfish, nor the public with advance notice of the supporting rationale, an analysis of may dealers issued a Federal permit availability of both the proposals and impacts and, if management measures purchase spiny dogfish from vessels the analysis for comment prior to, and are recommended, a recommendation to issued a spiny dogfish permit under this at, the second Council meeting. The the Regional Administrator on whether part. Councils’ recommendation on to issue the management measures as a (b) ACL overage evaluation. The ACL adjustments or additions to management final rule. If the Councils recommend will be evaluated based on a single-year measures must come from one or more that the management measures should examination of total catch (including of the following categories: Adjustments be issued as a final rule, they must

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consider at least the following factors (2) Periodicity. The tilefish the SSC provides single or multiple-year and provide support and analysis for commercial ACL may be established on ABC recommendations. each factor considered: an annual basis for up to 3 years at a (b) Performance review. The Tilefish (i) Whether the availability of data on time, dependent on whether the SSC Monitoring Committee shall conduct a which the recommended management provides single or multiple-year ABC detailed review of fishery performance measures are based allows for adequate recommendations. relative to ACTs in conjunction with time to publish a proposed rule and (b) Performance review. The Tilefish any ACL performance review, as whether regulations have to be in place Monitoring Committee shall conduct a outlined in § 648.290(b)(1) through (3). for an entire harvest/fishing season; detailed review of fishery performance ■ 70. Section 648.292 is added to read (ii) Whether there has been adequate relative to the sector ACLs at least every as follows: notice and opportunity for participation 5 years. § 648.292 Tilefish specifications. by the public and members of the (1) If the ACL is exceeded with a affected industry in the development of frequency greater than 25 percent (i.e., The fishing year is the 12-month the Councils’ recommended more than once in 4 years or in any period beginning with November 1, management measures; 2 consecutive years), the Tilefish annually. (a) Annual specification process. The (iii) Whether there is an immediate Monitoring Committee will review Tilefish Monitoring Committee shall need to protect the resource; and fishery performance information and review the ABC recommendation of the make recommendations to the MAFMC (iv) Whether there will be a SSC, tilefish landings and discards for changes in measures intended to continuing evaluation of management information, and any other relevant measures adopted following their ensure ACLs are not as frequently available data to determine if the ACL, implementation as a final rule; exceeded. ACT, or total allowable landings (TAL) (3) NMFS action. If the Councils’ (2) The MAFMC may specify more requires modification to respond to any recommendation includes adjustments frequent or more specific ACL changes to the stock’s biological or additions to management measures, performance review criteria as part of a reference points or to ensure that the then: stock rebuilding plan following a rebuilding schedule is maintained. The (i) If NMFS concurs with the determination that the tilefish stock has Monitoring Committee will consider Councils’ recommended management become overfished. whether any additional management measures and determines that the (3) Performance reviews shall not measures or revisions to existing recommended management measures substitute for annual reviews that occur measures are necessary to ensure that should be issued as a final rule based on to ascertain if prior year ACLs have been the TAL will not be exceeded. Based on the factors specified in paragraph (b)(2) exceeded, but may be conducted in that review, the Monitoring Committee of this section, then the measures will conjunction with such reviews. will recommend ACL, ACT, and TAL to be issued as a final rule in the Federal ■ 69. Section 648.291 is revised to read the Tilefish Committee of the MAFMC. Register. as follows: Based on these recommendations and (ii) If NMFS concurs with the any public comment received, the Councils’ recommendation and § 648.291 Tilefish Annual Catch Target Tilefish Committee shall recommend to (ACT). determines that the recommended the MAFMC the appropriate ACL, ACT, management measures should be (a) The Tilefish Monitoring TAL, and other management measures published first as a proposed rule, then Committee shall identify and review the for a single fishing year or up to 3 years. the measures will be published as a relevant sources of management The MAFMC shall review these proposed rule in the Federal Register. uncertainty to recommend an ACT as recommendations and any public After additional public comment, if part of the tilefish specification process. comments received, and recommend to NMFS concurs with the Councils’ The Tilefish Monitoring Committee the Regional Administrator, at least 120 recommendation, then the measures recommendations shall identify the days prior to the beginning of the next will be issued as a final rule in the specific sources of management fishing year, the appropriate ACL, ACT, Federal Register. uncertainty that were considered, TAL, the percentage of TAL allocated to (iii) If NMFS does not concur, the technical approaches to mitigating these research quota, and any management Councils will be notified in writing of sources of uncertainty, and any measures to ensure that the TAL will the reasons for the non-concurrence. additional relevant information not be exceeded, for the next fishing (iv) Framework actions can be taken considered in the ACT recommendation year, or up to 3 fishing years. The only in the case where both Councils process. MAFMC’s recommendations must approve the proposed measure. (1) Sectors. The ACT shall be less include supporting documentation, as (b) Emergency action. Nothing in this than or equal to the ACL. The Tilefish appropriate, concerning the section is meant to derogate from the Monitoring Committee shall include the environmental and economic impacts of authority of the Secretary to take fishing mortality associated with the the recommendations. The Regional emergency action under section 305(e) recreational fishery in its ACT Administrator shall review these of the Magnuson-Stevens Act. recommendations only if this source of recommendations, and after such ■ 68. Section 648.290 is revised to read mortality has not already been review, NMFS will publish a proposed as follows: accounted for in the ABC recommended rule in the Federal Register specifying by the SSC. The Tilefish Monitoring the annual ACL, ACT, TAL and any § 648.290 Tilefish Annual Catch Limit Committee shall recommend any management measures to ensure that the (ACL). reduction in catch necessary to address TAL will not be exceeded for the (a) The Tilefish Monitoring sector-specific management uncertainty, upcoming fishing year or years. After Committee shall recommend to the consistent with paragraph (a) of this considering public comments, NMFS MAFMC an ACL for the commercial section. will publish a final rule in the Federal tilefish fishery, which shall be equal to (2) Periodicity. ACTs may be Register to implement the ACL, ACT, the ABC recommended by the SSC. established on an annual basis for up to TAL and any management measures. (1) [Reserved] 3 years at a time, dependent on whether The previous year’s specifications will

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remain effective unless revised through for overages pursuant to paragraph (f) of allocation percentage under paragraph the specification process and/or the this section. Amounts of IFQ of 0.5 lb (e) of this section. All Federal vessel research quota process described in (0.23 kg) or smaller created by this permit numbers that are listed on the paragraph (e) of this section. NMFS will allocation shall be rounded downward IFQ allocation permit are authorized to issue notification in the Federal to the nearest whole number, and possess tilefish pursuant to the IFQ Register if the previous year’s amounts of IFQ greater than 0.5 lb (0.23 allocation permit until the end of the specifications will not be changed. kg) created by this division shall be fishing year or until NMFS receives (b) TAL. (1) The TAL for each fishing rounded upward to the nearest whole written notification from the IFQ year will be 1.995 million lb (905,172 number, so that IFQ allocations are allocation permit holder that the vessel kg) unless modified pursuant to specified in whole pounds. These is no longer authorized to possess paragraph (a) of this section. allocations shall be issued in the form tilefish pursuant to the subject permit. (2) The sum of the TAL and estimated of an annual IFQ allocation permit. An IFQ allocation permit holder that discards shall be less than or equal to (b) Application—(1) General. wishes to authorize an additional the ACT. Applicants for a permit under this vessel(s) to possess tilefish pursuant to (c) TAL allocation. For each fishing section must submit a completed the IFQ allocation permit must send year, up to 3 percent of the TAL may be application on an appropriate form written notification to NMFS that set aside for the purpose of funding obtained from NMFS. The application includes the vessel permit number, and research. Once a research amount, if must be filled out completely and the dates on which the IFQ allocation any, is set aside, the TAL will first be signed by the applicant. Each permit holder desires the vessel to be reduced by 5 percent to adjust for the application must include a declaration authorized to land IFQ tilefish pursuant incidental catch. The remaining TAL of all interests in IFQ allocations, as to the IFQ allocation permit to be will be allocated to the individual IFQ defined in § 648.2, listed by IFQ effective. permit holder as described in allocation permit number, and must list (4) Alteration. An annual IFQ § 648.294(a). all Federal vessel permit numbers for all allocation permit that is altered, erased, (d) Adjustments to the quota. If the vessels that an applicant owns or leases or mutilated is invalid. incidental harvest exceeds 5 percent of that would be authorized to possess (5) Replacement. The Regional the TAL for a given fishing year, the tilefish pursuant to the IFQ allocation Administrator may issue a replacement incidental trip limit of 500 lb (226.8 kg) permit. The Regional Administrator will permit upon written application of the may be reduced in the following fishing notify the applicant of any deficiency in annual IFQ allocation permit holder. year. If an adjustment is required, a the application. (6) Transfer. The annual IFQ notification of adjustment of the quota (i) [Reserved] allocation permit is valid only for the will be published in the Federal (ii) Renewal applications. person to whom it is issued. All or part Register. Applications to renew an IFQ allocation of the allocation specified in the IFQ (e) Research quota. See § 648.21(g). permit must be received by September allocation permit may be transferred in ■ 71. Section 648.293 is revised to read 15 to be processed in time for the accordance with paragraph (e) of this as follows: November 1 start of the fishing year. section. Renewal applications received after this (7) Abandonment or voluntary § 648.293 Tilefish accountability date may not be approved, and a new relinquishment. Any IFQ Allocation measures. permit may not be issued before the permit that is voluntarily relinquished (a) If the ACL is exceeded, the amount start of the next fishing year. An IFQ to the Regional Administrator, or of the ACL overage that cannot be allocation permit holder must renew deemed to have been voluntarily directly attributed to IFQ allocation his/her IFQ allocation permit on an relinquished for failure to pay a holders having exceeded their IFQ annual basis by submitting an recoverable cost fee, in accordance with allocation will be deducted from the application for such permit prior to the the requirements specified in paragraph ACL in the following fishing year. All end of the fishing year for which the (h)(2) of this section, or for failure to overages directly attributable to IFQ permit is required. renew in accordance with paragraph allocation holders will be deducted (2) Issuance. Except as provided in (b)(1)(ii) of this section, shall not be from the appropriate IFQ allocation(s) in subpart D of 15 CFR part 904, and reissued or renewed in a subsequent the subsequent fishing year, as required provided an application for such permit year. by § 648.294(f). is submitted by September 15, as (c) [Reserved] (b) [Reserved] specified in paragraph (b)(1)(ii) of this (d) [Reserved] ■ 72. Section 648.294 is revised to read section, NMFS shall issue annual IFQ (e) Transferring IFQ allocations—(1) as follows: allocation permits on or before October Temporary transfers. Unless otherwise 31 to those who hold permanent restricted by the provisions in paragraph § 648.294 Individual fishing quota (IFQ) allocation as of September 1 of the (e)(3) of this section, the owner of an program. current fishing year. During the period IFQ allocation may transfer the entire (a) IFQ allocation permits. After between September 1 and October 31, IFQ allocation, or a portion of the IFQ adjustments for incidental catch, transfer of IFQ is not permitted, as allocation, to any person or entity research set asides, and overages, as described in paragraph (e)(4) of this eligible to own a documented vessel appropriate, pursuant to § 648.292(c), section. The IFQ allocation permit shall under the terms of 46 U.S.C. 12102(a). the Regional Administrator shall divide specify the allocation percentage of the Temporary IFQ allocation transfers shall the remaining TAL among the IFQ IFQ TAL which the IFQ permit holder be effective only for the fishing year in allocation permit holders who held an is authorized to harvest. which the temporary transfer is IFQ permit as of September 1 of a giving (3) Duration. An annual IFQ requested and processed, unless the fishing year. Allocations shall be made allocation permit is valid until October applicant specifically requests that the by applying the allocation percentages 31 of each fishing year unless it is transfer be processed for the subsequent that exist on September 1 of a given suspended, modified, or revoked fishing year. The Regional fishing year to the IFQ TAL pursuant to pursuant to 15 CFR part 904, or revised Administrator has final approval § 648.292(c), subject to any deductions due to a transfer of all or part of the authority for all temporary IFQ

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allocation transfer requests. The (i) Application information subsequent fishing year, a revised IFQ approval of a temporary transfer may be requirements. An application to transfer allocation permit reflecting the rescinded if the Regional Administrator IFQ allocation must include the deduction of the overage shall be issued finds that an emergency has rendered following information: The type of by NMFS. If the allocation cannot be the lessee unable to fish for the transfer (either temporary or reduced in the subsequent fishing year transferred IFQ allocation, but only if permanent); the signature of both parties because the full allocation has already none of the transferred allocation has involved; the price paid for the transfer; been landed or transferred, the IFQ been landed. indicate eligibility to receive IFQ allocation permit will indicate a (2) Permanent transfers. Unless allocation; the amount of allocation to reduced allocation for the amount of the otherwise restricted by the provisions in be transferred; and a declaration; by IFQ overage in the next fishing year. paragraph (e)(3) of this section, an Allocation permit number, of all the IFQ (g) IFQ allocation acquisition owner of an IFQ allocation may allocations that the person or entity restriction. No person or entity may permanently transfer the entire IFQ receiving the IFQ allocation has an acquire more than 49 percent of the allocation, or a portion of the IFQ interest. The person or entity receiving annual adjusted tilefish TAL, specified allocation, to any person or entity the IFQ allocation must indicate the pursuant to § 648.294, at any point eligible to own a documented vessel permit numbers of all federally during a fishing year. For purposes of under the terms of 46 U.S.C. 12102(a). permitted vessels that will possess or this paragraph, acquisition includes any The Regional Administrator has final land their IFQ allocation. Information permanent or temporary transfer of IFQ. approval authority for all permanent obtained from the IFQ Allocation The calculation of IFQ allocation for IFQ allocation transfer requests. Transfer Form is confidential pursuant purposes of the restriction on (3) IFQ allocation transfer restrictions. to 16 U.S.C. 1881a. acquisition includes IFQ allocation (i) If IFQ allocation is temporarily (ii) Approval of IFQ transfer interests held by: A company in which transferred to any eligible entity, it may applications. Unless an application to the IFQ holder is a shareholder, officer, not be transferred by the transferee transfer IFQ is denied according to or partner; an immediate family again within the same fishing year, paragraph (e)(4)(iii) of this section, the member; or a company in which the IFQ unless the transfer is rescinded due to Regional Administrator shall issue holder is a part owner or partner. an emergency, as described in paragraph confirmation of application approval in (h) IFQ cost recovery. A fee shall be (e)(1) of this section. the form of a new or updated IFQ determined as described in paragraph (ii) A transfer of IFQ will not be allocation permit to the parties involved (h)(1) of this section, and collected to approved by the Regional Administrator in the transfer within 30 days of receipt recover the government costs associated if it would result in an entity owning, of a completed application. with management, data collection and or having an interest in, a percentage of (iii) Denial of transfer application. analysis, and enforcement of the IFQ IFQ allocation exceeding 49 percent of The Regional Administrator may reject program. A tilefish IFQ allocation the total tilefish adjusted TAL. an application to transfer IFQ allocation permit holder shall be responsible for (iii) If the owner of an IFQ allocation for the following reasons: The paying the fee assessed by NMFS. A leases additional quota from another application is incomplete; the transferor tilefish IFQ allocation permit holder IFQ allocation permit holder, any does not possess a valid tilefish IFQ with a permanent allocation shall incur landings associated with this transferred allocation permit; the transferor’s or a cost-recovery fee, based on the value quota will be deducted from the total transferee’s vessel or tilefish IFQ of landings of tilefish authorized under yearly landings of the lessee, before his/ allocation permit has been sanctioned, his/her tilefish IFQ allocation permit, her base allocation, if any exists, for the pursuant to an enforcement proceeding including allocation that he/she leases purpose of calculating the appropriate under 15 CFR part 904; the transfer will to another IFQ allocation permit holder. cost-recovery fee. As described in result in the transferee having a tilefish A tilefish IFQ allocation permit holder, paragraph (h) of this section, a tilefish IFQ allocation that exceeds 49 percent with a permanent allocation, shall be IFQ allocation permit holder with a of the adjusted TAL allocated to IFQ responsible for submitting this payment permanent allocation shall incur a cost- allocation permit holders; the transfer is to NMFS once per year, as specified in recovery fee, based on the value of to a person or entity that is not eligible paragraph (h)(2) of this section. For the landings of tilefish authorized under to own a documented vessel under the purpose of this section, the cost- his/her tilefish IFQ allocation permit, terms of 46 U.S.C. 12102(a); or any other recovery billing period is defined as the including allocation that he/she leases failure to meet the requirements of this full calendar year, beginning with to another IFQ allocation permit holder. subpart. Upon denial of an application January 1, 2010. NMFS will create an (4) Application for an IFQ allocation to transfer IFQ allocation, the Regional annual IFQ allocation bill for each cost- transfer. Any IFQ allocation permit Administrator shall send a letter to the recovery billing period and provide it to holder applying for either permanent or applicant describing the reason(s) for each IFQ allocation permit holder. The temporary transfer of IFQ allocation the denial. The decision by the Regional bill will include annual information must submit a completed IFQ Administrator is the final decision of regarding the amount and value of IFQ Allocation Transfer Form, available the Department of Commerce; there is allocation landed during the prior cost- from NMFS. The IFQ Allocation no opportunity for an administrative recovery billing period, and the Transfer Form must be submitted to the appeal. associated cost-recovery fees. NMFS NMFS Northeast Regional Office at least (f) IFQ allocation overages. Any IFQ will also create a report that will detail 30 days before the date on which the allocation that is exceeded, including the costs incurred by NMFS, for the applicant desires to have the IFQ amounts of tilefish landed by a lessee in management, enforcement, and data allocation transfer effective. The excess of a temporary transfer of IFQ collection and analysis associated with Regional Administrator shall notify the allocation, will be reduced by the the IFQ allocation program during the applicants of any deficiency in the amount of the overage in the subsequent prior cost-recovery billing period. application pursuant to this section. fishing year(s). If an IFQ allocation (1) NMFS determination of the total Applications for IFQ allocation transfers overage is not deducted from the annual recoverable costs of the tilefish must be received by September 1 to be appropriate allocation before the IFQ IFQ program. The Regional processed for the current fishing year. allocation permit is issued for the Administrator shall determine the costs

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associated with the management, data writing of the deficiency. NMFS shall recoverable cost fee prior to the end of collection and analysis, and explain the deficiency and provide the the cost-recovery billing period enforcement of the IFQ allocation IFQ allocation permit holder 30 days immediately following the one for program. The recoverable costs will be from the date of the notice, either to pay which the fee was incurred, the subject divided by the amount of the total ex- the amount assessed or to provide IFQ allocation permit shall be deemed vessel value of all tilefish IFQ landings evidence that the amount paid was to have been voluntarily relinquished during the cost-recovery billing period correct. If the IFQ allocation permit pursuant to paragraph (b)(7) of this to derive a percentage. IFQ allocation holder submits evidence in support of section. permit holders will be assessed a fee the appropriateness of his/her payment, (4) Periodic review of the IFQ based on this percentage multiplied by the Regional Administrator shall program. A formal review of the IFQ the total ex-vessel value of all landings determine whether there is a reasonable program must be conducted by the under their permanent IFQ allocation basis upon which to conclude that the MAFMC within 5 years of the effective permit, including landings of allocation amount of the tendered payment is date of the final regulations. Thereafter, that is leased. This fee shall not exceed correct. This determination shall be in it shall be incorporated into every 3 percent of the total value of tilefish set forth in a Final Administrative scheduled MAFMC review of the FMP landings of the IFQ allocation permit Determination (FAD) that is signed by (i.e., future amendments or holder. If NMFS determines that the the Regional Administrator. A FAD frameworks), but no less frequently than costs associated with the management, shall be the final decision of the every 7 years. data collection and analysis, and Department of Commerce. If the ■ 73. Section 648.295 is revised to read enforcement of the IFQ allocation Regional Administrator determines that as follows: program exceed 3 percent of the total the IFQ allocation permit holder has not § 648.295 Tilefish incidental trip limits. value of tilefish landings, only 3 percent paid the appropriate fee, he/she shall (a) Incidental trip limit for vessels not are recoverable. require payment within 30 days of the (i) Valuation of IFQ allocation. The 3- fishing under an IFQ allocation. Any date of the FAD. If a FAD is not issued percent limitation on cost-recovery fees vessel of the United States fishing under until after the start of the fishing year, shall be based on the ex-vessel value of a tilefish permit, as described at the IFQ allocation permit holder may be landed allocation. The ex-vessel value § 648.4(a)(12), is prohibited from issued a letter of authorization to fish for each pound of tilefish landed by an possessing more than 500 lb (226.8 kg) until the FAD is issued, at which point IFQ allocation holder shall be of tilefish at any time, unless the vessel the permit holder shall have 30 days to determined from Northeast Federal is fishing under a tilefish IFQ allocation comply with the terms of the FAD or the dealer reports submitted to NMFS, permit, as specified at § 648.294(a). Any tilefish IFQ allocation permit shall not which include the price per pound paid tilefish landed by a vessel fishing under be issued, and the letter of authorization to the vessel at the time of dealer an IFQ allocation permit, on a given shall not be valid until such terms are purchase. fishing trip, count as landings under the met. Any tilefish landed pursuant to the (ii) [Reserved] IFQ allocation permit. above authorization will count against (2) Fee payment procedure. An IFQ (b) In-season closure of the incidental the IFQ allocation permit, if issued. If allocation permit holder who has fishery. The Regional Administrator will the Regional Administrator determines incurred a cost-recovery fee must pay monitor the harvest of the tilefish that the IFQ allocation permit holder the fee to NMFS within 45 days of the incidental TAL based on dealer reports owes additional fees for the previous date of the bill. Cost-recovery payments and other available information, and cost-recovery billing period, and the shall be made electronically via the shall determine the date when the renewed IFQ allocation permit has Federal Web portal, http://www.pay.gov incidental tilefish TAL has been landed. already been issued, the Regional or other Internet sites designated by the The Regional Administrator shall Administrator shall issue a FAD and Regional Administrator. Instructions for publish a notice in the Federal Register will notify the IFQ allocation permit electronic payment shall be available on notifying vessel and dealer permit holder in writing. The IFQ allocation both the payment Web site and the cost- holders that, effective upon a specific permit holder shall have 30 days from recovery fee bill. Electronic payment date, the incidental tilefish fishery is the date of the FAD to comply with the options shall include payment via a closed for the remainder of the fishing terms of the FAD. If the IFQ allocation credit card, as specified in the cost- year. recovery bill, or via direct automated permit holder does not comply with the ■ 74. Section 648.296 is revised to read clearing house (ACH) withdrawal from terms of the FAD within this period, the as follows: a designated checking account. Regional Administrator shall rescind the Alternatively, payment by check may be IFQ allocation permit until such terms § 648.296 Tilefish recreational possession authorized by Regional Administrator if are met. If an appropriate payment is limit. he/she determines that electronic not received within 30 days of the date Any person fishing from a vessel that payment is not possible. of a FAD, the Regional Administrator is not fishing under a tilefish vessel (3) Payment compliance. If the cost- shall refer the matter to the appropriate permit issued pursuant to § 648.4(a)(12), recovery payment, as determined by authorities within the U.S. Department may land up to eight tilefish per trip. NMFS, is not made within the time of the Treasury for purposes of Anglers fishing onboard a charter/party specified in paragraph (h)(2) of this collection. No permanent or temporary vessel shall observe the recreational section, the Regional Administrator will IFQ allocation transfers may be made to possession limit. deny the renewal of the appropriate IFQ or from the allocation of an IFQ ■ 75. Section 648.297 is added to allocation permit until full payment is allocation permit holder who has not subpart N to read as follows: received. If, upon preliminary review of complied with any FAD. If the Regional a fee payment, the Regional Administrator determines that the terms § 648.297 Tilefish gear restricted areas. Administrator determines that the IFQ of a FAD have been met, the IFQ No vessel of the United States may allocation permit holder has not paid allocation permit holder may renew the fish with bottom-tending mobile gear the full amount due, he/she shall notify tilefish IFQ allocation permit. If NMFS within the areas bounded by the the IFQ allocation permit holder in does not receive full payment of a following coordinates:

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N. lat. W. long. Canyon Degrees Min Seconds Degrees Min Seconds

Oceanographer ...... 40.0 29.0 50.0 68.0 10.0 30.0 40.0 29.0 30.0 68.0 8.0 34.8 40.0 25.0 51.6 68.0 6.0 36.0 40.0 22.0 22.8 68.0 6.0 50.4 40.0 19.0 40.8 68.0 4.0 48.0 40.0 19.0 5.0 68.0 2.0 19.0 40.0 16.0 41.0 68.0 1.0 16.0 40.0 14.0 28.0 68.0 11.0 28.0 Lydonia ...... 40.0 31.0 55.2 67.0 43.0 1.2 40.0 28.0 52.0 67.0 38.0 43.0 40.0 21.0 39.6 67.0 37.0 4.8 40.0 21.0 4.0 67.0 43.0 1.0 40.0 26.0 32.0 67.0 40.0 57.0 40.0 28.0 31.0 67.0 43.0 0.0 Veatch ...... 40.0 0.0 40.0 69.0 37.0 8.0 40.0 0.0 41.0 69.0 35.0 25.0 39.0 54.0 43.0 69.0 33.0 54.0 39.0 54.0 43.0 69.0 40.0 52.0 Norfolk ...... 37.0 5.0 50.0 74.0 45.0 34.0 37.0 6.0 58.0 74.0 40.0 48.0 37.0 4.0 31.0 74.0 37.0 46.0 37.0 4.0 1.0 74.0 33.0 50.0 36.0 58.0 37.0 74.0 36.0 58.0 37.0 4.0 26.0 74.0 41.0 2.0

§ 648.298 [Added and reserved] (xvi) Habitat areas of particular prior to and at the second MAFMC ■ 76. Section 648.298 is added to concern; meeting on that framework action. subpart N and reserved. (xvii) Set-aside quotas for scientific (3) MAFMC recommendation. After ■ 77. Section 648.299 is added to research; developing management actions and (xviii) Changes to the Northeast subpart N to read as follows: receiving public testimony, the MAFMC Region SBRM, including the CV-based will make a recommendation to the § 648.299 Tilefish framework performance standard, the means by Regional Administrator. The MAFMC’s specifications. which discard data are collected/ recommendation must include (a) Within-season management action. obtained, fishery stratification, reports, supporting rationale and, if management The MAFMC may, at any time, initiate and/or industry-funded observers or measures are recommended, an analysis action to add or adjust management observer set-aside programs; of impacts and a recommendation to the measures if it finds that action is (xix) Recreational management Regional Administrator on whether to necessary to meet or be consistent with measures, including the bag limit, issue the management measures as a the goals and objectives of the Tilefish minimum fish size limit, seasons, and final rule. If the MAFMC recommends FMP. gear restrictions or prohibitions; and that the management measures should (1) Specific management measures. (xx) IFQ program review components, be issued as a final rule, it must The following specific management including capacity reduction, safety at consider at least the following factors measures may be adjusted at any time sea issues, transferability rules, and provide support and analysis for through the framework adjustment ownership concentration caps, permit each factor considered: process: and reporting requirements, and fee and (i) Whether the availability of data on (i) Minimum fish size; cost-recovery issues. which the recommended management (ii) Minimum hook size; (xxi) Measures that require significant measures are based allows for adequate (iii) Closed seasons; departures from previously time to publish a proposed rule, and (iv) Closed areas; contemplated measures or that are whether regulations have to be in place (v) Gear restrictions or prohibitions; otherwise introducing new concepts for an entire harvest/fishing season; (vi) Permitting restrictions; may require a formal amendment of the (ii) Whether there has been adequate (vii) Gear limits; FMP instead of a framework adjustment. notice and opportunity for participation (viii) Trip limits; (2) Adjustment process. If the (ix) Adjustments within existing ABC by the public and members of the MAFMC determines that an adjustment control rule levels; affected industry in the development of (x) Adjustments to the existing to management measures is necessary to the MAFMC’s recommended MAFMC risk policy; meet the goals and objectives of the management measures; (xi) Introduction of new AMs, FMP, it will recommend, develop, and (iii) Whether there is an immediate including sub ACTs; analyze appropriate management need to protect the resource; and (xii) Annual specification quota actions over the span of at least two (iv) Whether there will be a setting process; MAFMC meetings. The MAFMC will continuing evaluation of management (xiii) Tilefish FMP Monitoring provide the public with advance notice measures adopted following their Committee composition and process; of the availability of the implementation as a final rule. (xiv) Description and identification of recommendation, appropriate (4) Regional Administrator action. If EFH; justifications and economic and the MAFMC’s recommendation includes (xv) Fishing gear management biological analyses, and opportunity to adjustments or additions to management measures that impact EFH; comment on the proposed adjustments measures and, after reviewing the

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MAFMC’s recommendation and the recommended management (b) Emergency action. Nothing in this supporting information: measures should be published first as a section is meant to derogate from the (i) If the Regional Administrator proposed rule, the measures will be authority of the Secretary to take concurs with the MAFMC’s published as a proposed rule in the emergency action under section 305(e) recommended management measures Federal Register. After additional of the Magnuson-Stevens Act. and determines that the recommended public comment, if the Regional management measures should be issued Administrator concurs with the §§ 648.1, 648.2, 648.4, 648.6, 648.7, 648.8, as a final rule based on the factors MAFMC’s recommendation, the 648.12, 648.13, 648.14, 648.15, and 648.94 specified in paragraphs (a)(2) and (a)(3) measures will be issued as a final rule [Amended] of this section, the measures will be in the Federal Register. ■ 78. In the table below, for each section issued as a final rule in the Federal (iii) If the Regional Administrator Register. does not concur with the MAFMC’s in the left column, remove the text from (ii) If the Regional Administrator recommendation, the MAFMC will be whenever it appears throughout the concurs with the MAFMC’s notified in writing of the reasons for the section and add the text indicated in the recommendation and determines that non-concurrence. right column.

Section Remove Add Frequency

§ 648.1(a) ...... surf clam ...... surfclam ...... 1 § 648.1(a) ...... Surf Clam ...... Surfclam ...... 1 § 648.2 ...... surf clam ...... surfclam ...... 6 § 648.2 ...... surf clams ...... surfclams ...... 3 § 648.2 ...... Surf clams ...... Surfclams ...... 1 § 648.2 ...... § 648.70 ...... § 648.74 ...... 1 § 648.2 ...... § 648.291(e)(1) ...... § 648.294(e)(1) ...... 2 § 648.4(a)(3) introductory text ...... § 648.105 ...... § 648.106 ...... 1 § 648.4(a)(3)(i)(A) ...... § 648.105 ...... § 648.106 ...... 1 § 648.4(a)(3)(i)(L)(ii) ...... § 648.105 ...... § 648.106 ...... 1 § 648.4(a)(3)(i)(L)(iii) ...... § 648.104(b)(1) ...... § 648.108(b)(1) ...... 1 § 648.4(a)(4) ...... Surf clam ...... Surfclam ...... 1 § 648.4(a)(4) ...... surf clams ...... surfclams ...... 2 § 648.4(a)(4) ...... surf clam ...... surfclam ...... 1 § 648.4(a)(5)(ii) ...... § 648.21 ...... § 648.22 ...... 1 § 648.4(a)(6) introductory text ...... § 648.125 ...... § 648.128 ...... 1 § 648.4(a)(12) introductory text ...... § 648.291 ...... § 648.294 ...... 1 § 648.4(a)(12) introductory text ...... § 648.293 ...... § 648.295 ...... 1 § 648.4(a)(12)(i) ...... § 648.295 ...... § 648.296 ...... 1 § 648.6(a)(1) ...... surf clam ...... surfclam ...... 2 § 648.6(c) ...... surf clam ...... surfclam ...... 1 § 648.7(b)(1)(ii) ...... Surf clam ...... Surfclam ...... 1 § 648.7(b)(1)(ii) ...... surf clam ...... surfclam ...... 2 § 648.7(b)(1)(ii) ...... surf clams ...... surfclams ...... 1 § 648.7(b)(2)(ii) ...... § 648.291(a) ...... § 648.294(a) ...... 1 § 648.8(e) ...... surf clam ...... surfclam ...... 2 § 648.12 introductory text ...... surf clam ...... surfclam ...... 1 § 648.12(c) ...... surf clams ...... surfclams ...... 1 § 648.14(g)(1) introductory text ...... § 648.21(g) ...... § 648.22(g) ...... 1 § 648.14(g)(1)(iii) ...... § 648.26 ...... § 648.27 ...... 1 § 648.14(g)(2) introductory text ...... § 648.21(g) ...... § 648.22(g) ...... 1 § 648.14(g)(2)(i) ...... § 648.21 ...... § 648.22 ...... 1 § 648.14(g)(2)(ii)(C) ...... § 648.25 ...... § 648.26 ...... 1 § 648.14(g)(3) introductory text ...... § 648.21(g) ...... § 648.22(g) ...... 1 § 648.14(g)(3)(i) ...... § 648.21(d) ...... § 648.22(d) ...... 1 § 648.14(h) introductory text ...... § 648.21(g) ...... § 648.22(g) ...... 1 § 648.14(n)(1) introductory text ...... § 648.21(g) ...... § 648.22(g) ...... 1 § 648.14(n)(1)(i) ...... § 648.105 ...... § 648.106 ...... 1 § 648.14(n)(1)(i) ...... § 648.102 ...... § 648.105 ...... 1 § 648.14(n)(1)(ii)(B) ...... § 648.105 ...... § 648.106 ...... 1 § 648.14(n)(1)(iii) ...... § 648.104 ...... § 648.108 ...... 1 § 648.14(n)(1)(iii) ...... § 648.105(a) ...... § 648.106(a) ...... 1 § 648.14(n)(2) introductory text ...... § 648.100(f) ...... § 648.102(e) ...... 1 § 648.14(n)(2)(i)(A) ...... § 648.104 ...... § 648.108 ...... 1 § 648.14(n)(2)(i)(B) ...... § 648.105(d) ...... § 648.106(d) ...... 1 § 648.14(n)(2)(i)(B) ...... § 648.104(a) ...... § 648.108(a) ...... 1 § 648.14(n)(2)(i)(B) ...... § 648.104(b) ...... § 648.108(b) ...... 1 § 648.14(n)(2)(iii)(A) ...... § 648.104 ...... § 648.108 ...... 1 § 648.14(n)(2)(iii)(A) ...... § 648.104(e) ...... § 648.108(e) ...... 1 § 648.14(n)(2)(iii)(B) ...... § 648.104 ...... § 648.108 ...... 1 § 648.14(n)(2)(iii)(B) ...... § 648.104(f) ...... § 648.108(f) ...... 1 § 648.14(n)(2)(iii)(C) ...... § 648.104(b)(1) ...... § 648.108(b)(1) ...... 1 § 648.14(n)(2)(iii)(C) ...... § 648.104 ...... § 648.108 ...... 1 § 648.14(n)(3) introductory text ...... § 648.100(f) ...... § 648.102(e) ...... 1 § 648.14(n)(3)(ii) ...... § 648.105 ...... § 648.106 ...... 1 § 648.14(n)(3)(iii) ...... § 648.102 ...... § 648.105 ...... 1 § 648.14(o)(1) introductory text ...... § 648.120(e) ...... § 648.122(e) ...... 1

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Section Remove Add Frequency

§ 648.14(o)(1)(ii)(A) ...... § 648.122(g) ...... §§ 648.124 and 648.127 ...... 1 § 648.14(o)(1)(ii)(D) ...... § 648.123 ...... § 648.125 ...... 2 § 648.14(o)(1)(ii)(E) ...... § 648.120(b)(3), (4), and (7) ..... § 648.122(a) ...... 1 § 648.14(o)(1)(iii) ...... § 648.124 ...... § 648.126 ...... 1 § 648.14(o)(1)(v) ...... § 648.123 ...... § 648.125 ...... 1 § 648.14(o)(1)(vi) ...... § 648.122 (a) or (b) ...... § 648.124 (a) or (b) ...... 1 § 648.14(o)(1)(vi) ...... § 648.123(b) ...... § 648.125(a)(5) ...... 1 § 648.14(o)(2) introductory text ...... § 648.120(e) ...... § 648.122(e) ...... 1 § 648.14(o)(2)(i) introductory text ...... § 648.123 ...... § 648.125 ...... 2 § 648.14(o)(2)(i)(C) ...... § 648.122 ...... § 648.124 ...... 1 § 648.14(o)(3) introductory text ...... § 648.120(e) ...... § 648.122(e) ...... 1 § 648.14(o)(3)(ii) ...... § 648.125 ...... § 648.128 ...... 1 § 648.14(o)(3)(iii) ...... § 648.122 ...... § 648.124 ...... 1 § 648.14(o)(3)(v) ...... § 648.124(b) ...... § 648.126(b) ...... 1 § 648.14(p)(1) introductory text ...... § 648.140(e) ...... § 648.142(d) ...... 1 § 648.14(p)(1)(i) ...... § 648.142 ...... § 648.146 ...... 1 § 648.14(p)(1)(v) ...... § 648.143 ...... § 648.147 ...... 1 § 648.14(p)(2) introductory text ...... § 648.140(e) ...... § 648.142(d) ...... 1 § 648.14(p)(3) introductory text ...... § 648.140 ...... § 648.142 ...... 1 § 648.14(p)(2)(ii)(D)(3) ...... § 648.140(e) ...... § 648.142(d) ...... 1 § 648.14(p)(3)(iii) ...... § 648.142 ...... § 648.146 ...... 1 § 648.14(q) introductory text ...... § 648.160(h) ...... § 648.162(g) ...... 1 § 648.14(q)(2)(i) ...... § 648.161(b) ...... § 648.163(b) ...... 1 § 648.14(q)(2)(ii) ...... § 648.161(a) ...... § 648.163(a) ...... 1 § 648.14(u)(2)(ii) ...... § 648.293 ...... § 648.295 ...... 1 § 648.14(u)(2)(ii) ...... § 648.291(a) ...... § 648.294(a) ...... 1 § 648.14(u)(2)(iii) ...... § 648.291(a) ...... § 648.294(a) ...... 1 § 648.15(b)(1) ...... § 648.70 ...... § 648.74 ...... 1 § 648.15(b)(2) ...... § 648.76 ...... § 648.78 ...... 1 § 648.94(c)(3)(iv) ...... § 648.104(a)(1) ...... § 648.108(a)(1) ...... 1

[FR Doc. 2011–24511 Filed 9–28–11; 8:45 am] BILLING CODE 3510–22–P

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Part III

Federal Communications Commission

47 CFR Parts 0, 1 and 76 Leased Commercial Access; Development of Competition and Diversity in Video Programming Distribution and Carriage; Revision of the Commission’s Program Carriage Rules; Final Rule and Proposed Rule

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FEDERAL COMMUNICATIONS Commission’s copy contractor, 445 12th distributors (‘‘MVPDs’’) intended to COMMISSION Street, SW., Room CY–B402, benefit consumers by promoting Washington, DC 20554. To request this competition and diversity in the video 47 CFR Parts 0, 1, and 76 document in accessible formats programming and video distribution 2 [MB Docket No. 07–42; FCC 11–119] (computer diskettes, large print, audio markets (the ‘‘program carriage’’ rules). recording, and Braille), send an e-mail As required by Congress, these rules Leased Commercial Access; to [email protected] or call the allow for the filing of complaints with Development of Competition and Commission’s Consumer and the Commission alleging that an MVPD Diversity in Video Programming Governmental Affairs Bureau at (202) has (i) Required a financial interest in a Distribution and Carriage 418–0530 (voice), (202) 418–0432 video programming vendor’s program (TTY). service as a condition for carriage; (ii) AGENCY: Federal Communications coerced a video programming vendor to Paperwork Reduction Act of 1995 Commission. provide, or retaliated against a vendor Analysis ACTION: Final rule. for failing to provide, exclusive rights as This document adopts new or revised a condition of carriage; or (iii) SUMMARY: In 1993, the Federal information collection requirements unreasonably restrained the ability of an Communications Commission (FCC) subject to the Paperwork Reduction Act unaffiliated video programming vendor adopted rules pertaining to carriage of of 1995 (PRA), Public Law 104–13 (44 to compete fairly by discriminating in video programming vendors by U.S.C. 3501–3520). The requirements video programming distribution on the multichannel video programming will be submitted to the Office of basis of affiliation or nonaffiliation of distributors (‘‘MVPDs’’), known as the Management and Budget (OMB) for vendors in the selection, terms, or ‘‘program carriage rules.’’ The rules are review under section 3507 of the PRA. conditions for carriage. Congress intended to benefit consumers by The Commission will publish a separate specifically directed the Commission to promoting competition and diversity in notice in the Federal Register inviting provide for ‘‘expedited review’’ of these the video programming and video comment on the new or revised complaints and to provide for distribution markets. In this document, information collection requirements appropriate penalties and remedies for the FCC amends its rules to improve the adopted in this document. The any violations. Programming vendors procedures for addressing complaints requirements will not go into effect until have complained that the Commission’s alleging violations of the program OMB has approved it and the procedures for addressing program carriage rules. Commission has published a notice carriage complaints have hindered the DATES: Effective October 31, 2011, announcing the effective date of the filing of legitimate complaints and have except for §§ 1.221(h), 1.229(b)(3), information collection requirements. In failed to provide for the expedited 1.229(b)(4), 1.248(a), 1.248(b), 76.7(g)(2), addition, we note that pursuant to the review envisioned by Congress. 76.1302(c)(1), 76.1302 (d), 76.1302(e)(1), Small Business Paperwork Relief Act of 2. In this Second Report and Order in and 76.1302(k), which contain 2002, Public Law 107–198, see 44 U.S.C. MB Docket No. 07–42,3 we take initial information collection requirements that 3506(c)(4), we previously sought steps to improve our procedures for are not effective until approved by the specific comment on how the addressing program carriage complaints Office of Management and Budget. The Commission might ‘‘further reduce the by 4: FCC will publish a document in the information collection burden for small Federal Register announcing the business concerns with fewer than 25 2 See Implementation of Sections 12 and 19 of the employees.’’ In this present document, Cable Television Consumer Protection and effective date for those sections. Competition Act of 1992, Development of FOR FURTHER INFORMATION CONTACT: For we have assessed the potential effects of Competition and Diversity in Video Programming additional information on this the various policy changes with regard Distribution and Carriage, MM Docket No. 92–265, to information collection burdens on Second Report and Order 9 FCC Rcd 2642 (1993) proceeding, contact David Konczal, (‘‘1993 Program Carriage Order’’); see also [email protected]; of the Media small business concerns, and find that Implementation of the Cable Television Consumer Bureau, Policy Division, (202) 418– these requirements will benefit many Protection And Competition Act of 1992, 2120. For additional information companies with fewer than 25 Development of Competition and Diversity in Video employees by promoting the fair and Programming Distribution and Carriage, MM concerning the Paperwork Reduction Docket No. 92–265, Memorandum Opinion and Act information collection requirements expeditious resolution of program Order, 9 FCC Rcd 4415 (1994) (‘‘1994 Program contained in this document, contact access complaints. In addition, we have Carriage Order’’). The Commission’s program Cathy Williams at 202–418–2918, or via described impacts that might affect carriage rules are set forth at 47 CFR 76.1300– small businesses, which includes most 76.1302. the Internet at [email protected]. 3 businesses with fewer than 25 The initial Notice of Proposed Rulemaking in SUPPLEMENTARY INFORMATION: This is a MB Docket No. 07–42 was released in June 2007 employees, in the Final Regulatory summary of the Commission’s Second and pertains to both program carriage and leased Flexibility Analysis (‘‘FRFA’’) below. access issues. See Leased Commercial Access; Report and Order, FCC 11–119, adopted Development of Competition and Diversity in Video on July 29, 2011 and released on August Summary of the Second Report and Programming Distribution and Carriage, MB Docket 1, 2011. The full text of this document Order No. 07–42, Notice of Proposed Rule Making, 22 FCC Rcd 11222 (2007) (‘‘Program Carriage NPRM’’). The is available for public inspection and I. Introduction Commission released a Report and Order and copying during regular business hours Further Notice of Proposed Rulemaking in this in the FCC Reference Center, Federal 1. In 1993, the Commission adopted docket in February 2008 pertaining only to leased Communications Commission, 445 12th rules implementing a provision of the access issues. See Leased Commercial Access; 1 Street, SW., CY–A257, Washington, DC 1992 Cable Act pertaining to carriage Development of Competition and Diversity in Video of video programming vendors by Programming Distribution and Carriage, MB Docket 20554. This document will also be No. 07–42, Report and Order, 23 FCC Rcd 2909 available via ECFS (http://www.fcc.gov/ multichannel video programming (2008), stayed by United Church of Christ, et al. v. cgb/ecfs/). (Documents will be available FCC, No. 08–3245 (6th Cir. 2008). 1 See Cable Television Consumer Protection and 4 The new procedures adopted in the Second electronically in ASCII, Word 97, and/ Competition Act of 1992, Public Law 102–385, 106 Report and Order do not apply to program carriage or Adobe Acrobat.) The complete text Stat. 1460 (1992) (‘‘1992 Cable Act’’); see also 47 complaints that are currently pending or to program may be purchased from the U.S.C. 536. carriage complaints that are filed before the

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• Codifying in our rules what a mandatory carriage remedy would result that this harm to programming vendors program carriage complainant must in deletion of other programming; could adversely affect both demonstrate in its complaint to • Codifying in our rules that competition 7 and diversity 8 in the establish a prima facie case of a program retaliation by an MVPD against a video programming market, as well as carriage violation; programming vendor for filing a hinder competition in the video • Providing the defendant with 60 program carriage complaint is distribution market.9 days (rather than the current 30 days) to actionable as a potential form of 5. To address these concerns, file an answer to a program carriage discrimination on the basis of affiliation Congress passed section 616 of the complaint; and adopting other measures to address Communications Act of 1934, as • Establishing deadlines for action by retaliation; amended (the ‘‘Act’’), which directs the the Media Bureau and Administrative • Adopting a rule that requires a Commission to ‘‘establish regulations Law Judges (‘‘ALJ’’) when acting on vertically integrated MVPD to negotiate governing program carriage agreements program carriage complaints; and in good faith with an unaffiliated and related practices between cable • Establishing procedures for the programming vendor with respect to Media Bureau’s consideration of video programming that is similarly see also S. Rep. No. 102–92 (1991), at 25, reprinted requests for a temporary standstill of the situated to video programming affiliated in 1992 U.S.C.C.A.N. 1133, 1158 (‘‘vertical price, terms, and other conditions of an with the MVPD; integration gives cable operators the incentive and • ability to favor their affiliated programming existing programming contract by a Clarifying that the discrimination services’’); see id. (‘‘For example, the cable operator program carriage complainant seeking provision precludes a vertically might give its affiliated programmer a more renewal of such a contract. integrated MVPD from discriminating desirable channel position than another 3. In the Notice of Proposed on the basis of a programming vendor’s programmer, or even refuse to carry other programmers.’’); H.R. Rep. No. 102–628 (1992), at Rulemaking in MB Docket No. 11–131, lack of affiliation with another MVPD; 41 (‘‘Submissions to the Committee allege that some we seek comment on the following and cable operators favor programming services in proposed revisions to or clarifications of • Codifying in our rules which party which they have an interest, denying system access bears the burden of proof in program to programmers affiliated with rival MSOs and our program carriage rules, which are discriminating against rival programming services intended to further improve our carriage discrimination cases. with regard to price, channel positioning, and procedures and to advance the goals of We also invite commenters to suggest promotion.’’). the program carriage statute: any other changes to our program 7 See S. Rep. No. 102–92 (1991), at 25–26, • Modifying the program carriage carriage rules that would improve our reprinted in 1992 U.S.C.C.A.N. 1133, 1158–59 (‘‘Because of the trend toward vertical integration, statute of limitations to provide that a procedures and promote the goals of the cable operators now have a clear vested interest in complaint must be filed within one year program carriage statute. the competitive success of some of the of the act that allegedly violated the programming services seeking access through their II. Background rules; conduit.’’); H.R. Rep. No. 102–628 (1992), at 41 • 4. In the 1992 Cable Act, Congress (‘‘[T]he Committee received testimony that Revising discovery procedures for vertically integrated operators have impeded the program carriage complaint proceedings sought to promote competition and creation of new programming services by refusing in which the Media Bureau rules on the diversity in the video distribution or threatening to refuse carriage to such services merits of the complaint after discovery market as well as in the market for video that would compete with their existing programming services.’’); see also 47 U.S.C. is conducted, including expanded programming carried by cable operators 536(a)(3) (requiring the Commission to adopt discovery procedures (also known as and other MVPDs. Congress expressed regulations prohibiting discrimination on the basis party-to-party discovery) and an concern that the market power held by of affiliation that has ‘‘the effect of * * * automatic document production cable operators would adversely impact unreasonably restrain[ing] the ability of an unaffiliated video programming vendor to compete process, to ensure fairness to all parties programming vendors, noting that fairly’’); 1993 Program Carriage Order, 9 FCC Rcd while also ensuring compliance with ‘‘programmers are sometimes required at 2643, para. 2 (‘‘Congress concluded that the expedited resolution deadlines to give cable operators an exclusive vertically integrated cable operators have the right to carry the programming, a incentive and ability to favor affiliated programmers adopted in the Second Report and Order over unaffiliated programmers with respect to in MB Docket No. 07–42; financial interest, or some other added granting carriage on their systems. Cable operators • Permitting the award of damages in consideration as a condition of carriage or programmers that compete with the vertically program carriage cases; on the cable system.’’ 5 Congress also integrated entities may suffer harm to the extent • Providing the Media Bureau or ALJ explained that increased vertical that they do not receive such favorable terms.’’). 8 See H.R. Rep. No. 102–628 (1992), at 41 (‘‘The with the discretion to order parties to integration in the cable industry could Committee received testimony that vertically submit their best ‘‘final offer’’ for the harm programming vendors because it integrated companies reduce diversity in rates, terms, and conditions for the gives cable operators ‘‘the incentive and programming by threatening the viability of rival programming at issue in a complaint ability to favor their affiliated cable programming services.’’). 9 proceeding to assist in crafting a 6 In addition to promoting competition and programmers.’’ Congress concluded diversity in the video programming market, the remedy; Commission has explained that the program • Clarifying the rule that delays the 5 S. Rep. No. 102–92 (1991), at 24, reprinted in carriage provision of the 1992 Cable Act is also effectiveness of a mandatory carriage 1992 U.S.C.C.A.N. 1133, 1157; see also id. (‘‘[T]he intended to promote competition in the video remedy until it is upheld by the Committee continues to believe that the operator in distribution market by ensuring that MVPDs have certain instances can abuse its locally-derived access to programming. See 1994 Program Carriage Commission on review, including market power to the detriment of programmers and Order, 9 FCC Rcd at 4419, para. 28 (‘‘[I]n passing codifying a requirement that the competitors.’’); H.R. Rep. No. 102–628 (1992), at 41 section 616, Congress was concerned with the effect defendant MVPD must make an (‘‘Submissions to the Committee also suggest that a cable operator’s market power would have both evidentiary showing to the Media some vertically integrated MSOs have agreed to on programmers and on competing MVPDs carry a programming service only in exchange for * * *.’’); see also S. Rep. No. 102–92 (1991), at 23, Bureau or an ALJ as to whether a an ownership interest in the service.’’). reprinted in 1992 U.S.C.C.A.N. 1133, 1156 (‘‘In 6 1992 Cable Act 2(a)(5) (‘‘The cable industry has addition to using its market power to the detriment effective date of the new procedures adopted become vertically integrated; cable operators and of consumers directly, a cable operator with market herein. See The Tennis Channel Inc. v. Comcast cable programmers often have common ownership. power may be able to use this power to the Cable Communications, LLC, MB Docket No. 10– As a result, cable operators have the incentive and detriment of programmers. Through greater control 204, File No. CSR–8258–P (filed January 5, 2010); ability to favor their affiliated programmers. This over programmers, a cable operator may be able to Bloomberg, L.P. v. Comcast Cable Communications, could make it more difficult for noncable-affiliated use its market power to the detriment of video LLC, MB Docket No. 11–104 (filed June 13, 2011). programmers to secure carriage on cable systems.’’); distribution competitors.’’).

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operators or other [MVPDs] and video complainant has made a prima facie in need of reform.12 Among other programming vendors.’’ 10 Congress showing but the record is not sufficient concerns, programming vendors and mandated that these regulations shall to resolve the complaint, the Media other commenters cite uncertainty include provisions prohibiting a cable Bureau will outline procedures for concerning the evidence a complainant operator or other MVPD from engaging discovery before proceeding to rule on must provide to establish a prima facie in three types of conduct: (i) ‘‘Requiring the merits of the complaint; and (iv) if case, 13 unpredictable delays in the a financial interest in a program service the Media Bureau determines that the as a condition for carriage on one or complainant has made a prima facie 12 See Ex Parte Reply Comments of HDNet (June more of such operator’s systems’’ (the showing but the disposition of the 2, 2010) at 6 (‘‘A right without an effective remedy is like having no right at all. Today, neither MVPDs ‘‘financial interest’’ provision); (ii) complaint or discrete issues raised in nor independent programmers have reason to think ‘‘coercing a video programming vendor the complaint will require resolution of that a possible statutory violation will be redressed to provide, and from retaliating against factual disputes in an adjudicatory by the FCC in a timely and effective manner.’’); such a vendor for failing to provide, hearing or extensive discovery, the Comments of Black Television News Channel, LLC at 4 (‘‘BTNC Comments’’); Comments of National exclusive rights against other [MVPDs] Media Bureau will refer the proceeding Alliance of Media Arts and Culture et al. at 18–19 as a condition of carriage on a system’’ or discrete issues arising in the (‘‘NAMAC Comments’’); Comments of NFL (the ‘‘exclusivity’’ provision); and (iii) proceeding for an adjudicatory hearing Enterprises LLC at 6–8 (‘‘NFL Enterprises ‘‘engaging in conduct the effect of which before an ALJ. The Commission decided Comments’’); Comments of The America Channel at 9–11 (‘‘TAC Comments’’); Reply Comments of is to unreasonably restrain the ability of that appropriate relief for violations of Crown Media Holdings, Inc. at 10–11 (‘‘Hallmark an unaffiliated video programming the program carriage rules would be Channel Reply’’); Reply Comments of HDNet at 1 vendor to compete fairly by determined on a case-by-case basis, and (‘‘HDNet Reply’’); Reply Comments of National could include forfeitures, mandatory Alliance of Media Arts and Culture et al. at 18–19 discriminating in video programming (‘‘NAMAC Reply’’); Reply Comments of NFL distribution on the basis of affiliation or carriage, or carriage on terms revised or Enterprises LLC at 5–6 (‘‘NFL Enterprises Reply’’); nonaffiliation of vendors in the specified by the Commission.11 Reply Comments of WealthTV at 1–2 (‘‘WealthTV selection, terms, or conditions for 7. In June 2007, the Commission Reply’’); see also Letter from Stephen A. released the Program Carriage NPRM Weiswasser, Counsel for the Outdoor Channel, to carriage of video programming provided Marlene H. Dortch, Secretary, FCC, MB Docket No. by such vendors’’ (the ‘‘discrimination’’ seeking comment on revisions to the 07–42 (Nov. 16, 2007) at 2 (‘‘Outdoor Channel Nov. provision). Section 616 also directs the Commission’s program carriage rules 16, 2007 Ex Parte Letter’’); Letter from Larry F. Commission to (i) ‘‘Provide for and complaint procedures. The Darby, American Consumer Institute, to Marlene H. Commission sought comment on Dortch, Secretary, FCC, MB Docket No. 07–42 (Nov. expedited review of any complaints 20, 2007) at 14 (‘‘ACI Nov. 20, 2007 Ex Parte made by a video programming vendor whether and how the processes for Letter’’); Letter from David S. Turetsky, Counsel for pursuant to’’ section 616; (ii) ‘‘provide resolving program carriage complaints HDNet LLC, to Marlene H. Dortch, Secretary, FCC, for appropriate penalties and remedies should be modified; whether the MB Docket No. 07–42 (Nov. 20, 2007) at 1–2 elements of a prima facie case should be (‘‘HDNet Nov. 20, 2007 Ex Parte Letter’’); Letter for violations of [section 616], including from Kathleen Wallman, Counsel for National carriage’’; and (iii) ‘‘provide penalties to clarified; whether the deadline for Association of Independent Networks (‘‘NAIN’’), to be assessed against any person filing a resolving the program carriage Marlene H. Dortch, Secretary, FCC, MB Docket No. frivolous complaint pursuant to’’ complaint at issue in the MASN I HDO 07–42 (June 5, 2008), Attachment (‘‘NAIN June 5, or a similar deadline should apply to all 2008 Ex Parte Letter’’); Letter from John Lawson, section 616. Executive Vice President, ION Media Networks, to 6. In the 1993 Program Carriage program carriage complaints; and Kevin J. Martin, Chairman, FCC, MB Docket No. 07– Order, the Commission implemented whether additional rules are necessary 42 (Dec. 11, 2008), Attachment at 1 (‘‘ION Dec. 11, section 616 by adopting procedures for to protect programming vendors from 2008 Ex Parte Letter’’). Members of Congress have potential retaliation for filing a program also expressed concern with the program carriage the review of program carriage complaint process. See Letter from Kathleen complaints as well as penalties and carriage complaint. Wallman, Counsel for WealthTV, to Marlene H. remedies. In doing so, the Commission III. Second Report and Order in MB Dortch, Secretary, FCC, MB Docket No. 07–42 (Aug. 4, 2008) (‘‘WealthTV Aug. 4, 2008 Ex Parte Letter’’) explained that its rules were intended to Docket No. 07–42 (attaching Letter from U.S. Sen. Kay Bailey prohibit the activities specified by 8. As discussed below, the record Hutchison to Kevin J. Martin, Chairman, FCC (July Congress ‘‘without unduly interfering 27, 2008) at 1 (expressing continued concern that reflects that our current program with legitimate negotiating practices ‘‘the existing dispute resolution processes are not carriage procedures are ineffective and encouraging the timely resolution of these disputes between [MVPDs] and programming or providing the proper incentives for the parties to vendors.’’ The Commission’s procedures 11 See 1993 Program Carriage Order, 9 FCC Rcd negotiate terms’’)); id. (attaching Letter from U.S. generally provide for resolution of a at 2653, para. 26. Eleven program carriage Sen. Amy Klobuchar to Kevin J. Martin, Chairman, program carriage complaint in one of complaints have been filed in the approximately FCC (July 24, 2008) at 1 (‘‘Without an effective and four ways: (i) If the Media Bureau two decades since Congress passed section 616 in timely FCC process to decide complaints * * * the the 1992 Cable Act, two of which are currently integrity of any safeguards against program carriage determines that the complainant has not pending before an ALJ or the Media Bureau. See discrimination is undermined.’’)); Letter from David made a prima facie showing in its The Tennis Channel Inc. v. Comcast Cable S. Turetsky, Counsel for HDNet LLC, to Marlene H. complaint of a violation of the program Communications, LLC, Hearing Designation Order Dortch, Secretary, FCC, MB Docket No. 07–42 (July 22, 2008) (‘‘HDNet July 22, 2008 Ex Parte Letter’’) carriage rules, the Media Bureau will and Notice of Opportunity for Hearing for Forfeiture, 25 FCC Rcd 14149 (MB 2010) (‘‘Tennis (attaching Letter from U.S. Sen. Herb Kohl to Kevin dismiss the complaint; (ii) if the Media Channel HDO’’); Bloomberg, L.P. v. Comcast Cable J. Martin, Chairman, FCC (June 23, 2008) at 2 Bureau determines that the complainant Communications, LLC, MB Docket No. 11–104 (filed (urging the Commission ‘‘to strengthen the program has made a prima facie showing and the June 13, 2011). In addition, the Commission has carriage rules and to simplify and make more efficient the process by which program carriage record is sufficient to resolve the resolved on the merits a program carriage claim arising through the program carriage arbitration complaints are adjudicated’’)); id. (attaching Letter complaint, the Media Bureau will rule condition applicable to Regional Sports Networks from U.S. Reps. Gene Green, Mike Doyle, and on the merits of the complaint based on (‘‘RSNs’’) adopted in the Adelphia Order. See TCR Charles Gonzalez to Kevin J. Martin, Chairman, FCC the pleadings without discovery; (iii) if Sports Broadcasting Holding, L.L.P., d/b/a Mid- (June 30, 2008) at 1–2 (‘‘The current complaint process is not as efficient as it could be * * * . [W]e the Media Bureau determines that the Atlantic Sports Network v. Time Warner Cable Inc., Order on Review, 23 FCC Rcd 15783 (MB 2008), urge you to provide more effective remedies and reversed by Memorandum Opinion and Order, 25 streamline the complaint process * * * .’’)). 10 47 U.S.C. 536. A ‘‘video programming vendor’’ FCC Rcd 18099 (2010) (‘‘MASN v. Time Warner 13 See TAC Comments at 10; NAMAC Reply at is defined as ‘‘a person engaged in the production, Cable’’), appeal pending sub nom. TCR Sports 18–19; WealthTV Reply at 1; NAIN June 5, 2008 Ex creation, or wholesale distribution of video Broadcasting Holding, L.L.P., d/b/a Mid-Atlantic Parte Letter, Attachment at 1; Letter from Harold programming for sale.’’ 47 U.S.C. 536(b). Sports Network v. FCC, No. 11–1151 (4th Cir.). Feld, Counsel for NAMAC et al., to Marlene H.

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Commission’s resolution of providing the defendant with 60 days their program carriage rights through the complaints,14 and fear of retaliation 15 as (rather than the current 30 days) to file complaint process.19 impeding the filing of legitimate an answer to a program carriage 10. While one commenter notes that program carriage complaints. While complaint; (iii) establishing deadlines the prima facie step is not required by MVPDs contend that the limited number for action by the Media Bureau and an the statute and urges the Commission to 20 of program carriage complaints filed to ALJ when acting on program carriage eliminate this step entirely, we believe date demonstrates that the current complaints; and (iv) establishing that retaining this requirement is procedures are working and that rule procedures for the Commission’s important to dispose promptly of 16 frivolous complaints and to ensure that changes are not necessary, consideration of requests for a programming vendors contend that the only legitimate complaints proceed to temporary standstill of the price, terms, lack of complaints is a direct result of further evidentiary proceedings. We and other conditions of an existing our inadequate procedures, not a lack of agree, however, that clarifying what is program carriage claims.17 As discussed programming contract by a program required to establish a prima facie case below, we take initial steps to improve carriage complainant seeking renewal of and codifying these requirements in our these procedures by: (i) Codifying in our such a contract. rules will help to reduce uncertainty rules what a program carriage A. Prima Facie Case regarding the prima facie requirement. complainant must demonstrate in its In the following paragraphs, we clarify complaint to establish a prima facie case 9. In the 1993 Program Carriage the requirements for establishing a of a program carriage violation; (ii) Order, the Commission described the prima facie case. evidence a program carriage 11. As an initial matter, all complaints Dortch, Secretary, FCC, MB Docket No. 07–42 (May complainant must provide in its alleging a violation of any of the 2, 2008) at 1 (‘‘NAMAC May 2, 2008 Ex Parte complaint to establish a prima facie program carriage rules (i.e., the financial Letter’’). interest, exclusivity, or discrimination 14 case. Among other things, the See Letter from Jonathan D. Blake, Counsel for provisions) must contain evidence that the National Football League, to Marlene H. Dortch, Commission stated that the ‘‘complaint (i) the complainant is a video Secretary, FCC, MB Docket No. 07–42 (Nov. 5, must be supported by documentary 2009) at 2 (‘‘Based on the experience in the now- programming vendor as defined in evidence of the alleged violation, or by settled NFL Network/Comcast hearing, the NFL section 616(b) of the Act and believes that the Commission’s processes are too an affidavit (signed by an authorized § 76.1300(e) of the Commission’s rules slow * * *.’’); BTNC Comments at 4; TAC representative or agent of the Comments at 9; Letter from David S. Turetsky, or an MVPD as defined in section Counsel for HDNet, to Marlene H. Dortch, Secretary, complaining programming vendor) 602(13) of the Act and § 76.1300(d) of FCC, MB Docket No. 07–42 (June 16, 2010), at 5 setting forth the basis for the the Commission’s rules; 21 and (ii) the (‘‘HDNet June 16, 2010 Ex Parte Letter’’); see also complainant’s allegations.’’ The NAMAC Comments at 18; HDNet Reply at 1; NFL defendant is an MVPD as defined in Enterprises Reply at 8; WealthTV Reply at 1; ION Commission also emphasized that the section 602(13) of the Act and Dec. 11, 2008 Ex Parte Letter, Attachment at 1; complaint ‘‘may not merely reflect § 76.1300(d) of the Commission’s rules. NAIN June 5, 2008 Ex Parte Letter, Attachment at conjecture or allegations based only on We note that, as originally adopted in 1. information and belief.’’ The record the 1993 Program Carriage Order, the 15 See BTNC Comments at 4; NAMAC Comments at 18–19; NFL Enterprises Comments at 8 n.28; NFL reflects that programming vendors are Commission’s rules provided that a Enterprises Reply at 6; NAIN June 5, 2008 Ex Parte uncertain as to what evidence must be complaint must contain the ‘‘address Letter, Attachment at 1. provided in a complaint to meet the and telephone number of the 16 See Comments of Comcast Corporation at 27, prima facie requirement.18 The National 33 (‘‘Comcast Comments’’); Comments of the Association of Independent Networks 19 See NAIN June 5, 2008 Ex Parte Letter, National Cable and Telecommunications Attachment (‘‘Currently, there is no definition in Association at 14–15 (‘‘NCTA Comments’’); (‘‘NAIN’’), for example, notes that our the rules of what constitutes a prima facie case. Comments of Time Warner Cable Inc. at 27–29 rules do not contain a definition of what Consequently, defendants argue their own versions (‘‘TWC Comments’’); Reply Comments of Comcast constitutes a prima facie case and that of the standard to try to get independent Corporation at 21–23 (‘‘Comcast Reply’’); Reply programmers’ complaints dismissed. This lack of Comments of the National Cable and this lack of clarity impedes clarity is a problem for independent programmers Telecommunications Association at 18–19 (‘‘NCTA programming vendors from asserting who are in litigation before the Commission, and for Reply’’); Reply Comments of Time Warner Cable programmers who are contemplating litigation to Inc. at 2–3 (‘‘TWC Reply’’); Reply Comments of vindicate their rights.’’). 18 See TAC Comments at 10 (‘‘[T]here are no clear Verizon at 9–10 (‘‘Verizon Reply’’). 20 See NAMAC Reply at 18 (‘‘[T]he Commission 17 See Letter from Stephen A. Weiswasser, guidelines on what constitutes a prima facie case adopted the requirement to establish a prima facie Counsel for the Hallmark Channel, to Marlene H. of discrimination.’’); NAMAC Reply at 18–19 case solely on the basis of its own initiative.* * * Dortch, Secretary, FCC, MB Docket No. 07–42 (Nov. (‘‘[T]he current prima facie case requirement [N]othing in section 616 requires the Commission 6, 2007) at 1–2 (‘‘[T]he absence of complaints under actively prevents the Commission from fulfilling to use a prima facie case requirement to limit the the existing program carriage regime is not evidence the statutory command to resolve complaints number of potentially frivolous complaints.’’). of lack of discrimination, but, to the contrary, a ‘expeditiously.’ Similarly, evidence in the record 21 See 1993 Program Carriage Order, 9 FCC Rcd reflection of the difficulties presented to from independent programmers demonstrates that at 2654, para. 29; see also 47 U.S.C. 522(13), 536(b); independents by the high burdens of going forward the prima facie case requirement may dissuade 47 CFR 76.1300(d), (e). In the 1994 Program under the existing rules and the prospects for independent programmers from bringing genuine Carriage Order, the Commission amended the retaliation by MVPDs.’’) (‘‘Hallmark Channel Nov. complaints due to confusion over the appropriate program carriage rules to allow MVPDs, in addition 6, 2007 Ex Parte Letter’’); see also BTNC Comments standard * * *.’’); WealthTV Reply at 1 (‘‘It is to video programming vendors, to file complaints at 4 (citing fear of retaliation, unpredictable cost critical for independent programmers to know alleging a violation of the program carriage rules. and delay, and uncertainty regarding evidence exactly what kind of evidence, and how much See 1994 Program Carriage Order, 9 FCC Rcd at required and adequacy of relief as reasons for why evidence, they need to present to move forward 4418–20, paras. 24–33. The Commission expressed few program carriage complaints have been filed to with a complaint.’’); see also HDNet July 22, 2008 concern that a video programming vendor that had date); Hallmark Channel Reply at 11 (‘‘[I]t simply Ex Parte Letter (attaching Letter from U.S. Reps. been coerced into granting anticompetitive is not the case that only two programmers have Gene Green, Mike Doyle, and Charles Gonzalez to concessions, including exclusivity, to a cable experienced discrimination during the time the Kevin J. Martin, Chairman, FCC (June 30, 2008) at operator might be dissuaded from filing a program rules have been in effect. The reality is that 2 (urging the Commission to adopt a ‘‘better defined carriage complaint based on fears of alienating the programmers do not bring complaints under the and more reasonable definition of a prima facie cable operator. See id. at 4416, para. 10 and 4420, existing rules because of their high burden of proof case’’); NAMAC May 2, 2008 Ex Parte Letter at 1 paras. 30–31. Accordingly, the Commission with respect to predatory practices, the difficulty of (‘‘If the Commission elects to retain the prima facie amended its rules to provide MVPDs aggrieved by fashioning meaningful resolutions, and the fear of screen, the Commission must clarify what a violation of section 616 to file a program carriage retribution, not because discrimination does not, in applicants must prove to meet this burden * * * complaint with the Commission. See id. at 4415, fact, occur.’’). .’’). para. 3 and 4418–19, para. 24.

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complainant, the type of multichannel 13. For complaints alleging a violation by a programming vendor affiliated with video programming distributor that of the discrimination provision, the defendant MVPD,25 based on a describes the defendant, and the address however, direct evidence supporting a combination of factors, such as genre, and telephone number of the claim that the defendant MVPD ratings, license fee, target audience, defendant.’’ In 1999, the Commission discriminated ‘‘on the basis of affiliation target advertisers, target programming,26 reorganized the part 76 pleading and or non-affiliation’’ is sufficient to and other factors.27 We emphasize that complaint process rules and, in the establish this element of a prima facie a finding at the prima facie stage that course of doing so, amended this rule to case but is not required. For example, an affiliated and unaffiliated video require the complaint to contain the e-mail from the defendant MVPD stating programming is similarly situated ‘‘type of multichannel video that the MVPD took an adverse carriage should be based on examination of a programming distributor that describes action against the programming vendor combination of factors put forth by the complainant, the address and telephone because it is not affiliated with the complainant. Although no single factor number of the complainant, and the MVPD will generally be sufficient to is necessarily dispositive, the more address and telephone number of each establish this element of a prima facie factors that are found to be similar, the defendant.’’ We find this revised case. However, such documentary more likely the programming in language confusing because it fails to evidence is highly unlikely to be question will be considered similarly reflect that a program carriage available to a programming vendor in situated to the affiliated programming. complainant can be either an MVPD or advance of discovery, and may not exist On the other hand, it is unlikely that a video programming vendor. We at all.23 In addition, an affidavit from a programming would be considered amend this rule to clarify that the representative of the programming ‘‘similarly situated’’ if only one of these complaint must specify ‘‘whether the vendor involved in the relevant carriage factors is found to be similar. For complainant is a multichannel video negotiations detailing the facts example, a complainant is unlikely to programming distributor or video supporting a claim that a representative establish a prima facie case of programming vendor, and, in the case of of the defendant MVPD informed the a multichannel video programming vendor that the MVPD took an adverse 25 In the 1993 Program Carriage Order, the carriage action because the vendor is not Commission interpreted the discrimination distributor, identify the type of provision in section 616(a)(3) to require a multichannel video programming affiliated with the MVPD will generally complainant alleging discrimination that favors an distributor, the address and telephone be sufficient to establish this element of ‘‘affiliated’’ programming vendor to provide number of the complainant, what type a prima facie case. Again, however, we evidence that the defendant MVPD has an attributable interest in the allegedly favored of multichannel video programming recognize that such direct evidence of ‘‘affiliated’’ programming vendor. See 1993 Program distributor the defendant is, and the affiliation-based discrimination will Carriage Order, 9 FCC Rcd at 2654, para. 29 (‘‘For address and telephone number of each seldom be available to complainants complaints alleging discriminatory treatment that and is not required to establish this favors ‘affiliated’ programming vendors, the defendant.’’ complainant must provide evidence that the 12. Evidence supporting a program element of a prima facie case. defendant has an attributable interest in the carriage claim may be based on an 14. Because it is unlikely that direct allegedly favored programming vendor, as set forth explicit or implicit threat.22 In evidence of a discriminatory motive will in § 76.1300(a).’’); see also 47 CFR 76.1300(a) (‘‘For be available to potential complainants,24 purposes of this subpart, entities are affiliated if complaints alleging a violation of the either entity has an attributable interest in the other exclusivity or financial interest we clarify that a complainant can or if a third party has an attributable interest in both provisions, the complaint must contain establish this element of a prima facie entities.’’); Review of the Commission’s Cable case of a violation of the program Attribution Rules, Report and Order, 14 FCC Rcd direct evidence (either documentary or 19014, 19063, para. 132 n.333 (1999) (amending testimonial) supporting the facts carriage discrimination provision by definition of ‘‘affiliated’’ in the program carriage underlying the claim. For example, a providing the following circumstantial rules to be consistent with definition of this term complainant alleging that an MVPD has evidence of discrimination ‘‘on the basis in other cable rules); but see NPRM in MB Docket of affiliation or non-affiliation.’’ First, No. 11–131, paras. 72–77 (seeking comment on coerced a programming vendor to grant whether to interpret the discrimination provision in exclusive carriage rights or required a the complainant programming vendor section 616(a)(3) more broadly to preclude a financial interest in a program service must provide evidence that it provides vertically integrated MVPD from discriminating on must provide documentary evidence, video programming that is similarly the basis of a programming vendor’s lack of situated to video programming provided affiliation with another MVPD). such as an e-mail from the defendant 26 By ‘‘target programming,’’ we refer to MVPD, documenting the prohibited programming rights that a video programming 23 action, or an affidavit from a See Hallmark Channel Reply at 10 vendor seeks to acquire to display on its network. (‘‘[D]iscrimination is often subtle, and the evidence representative of the programming 27 The Media Bureau will assess on a case-by-case of its existence is likely outside the control of an basis whether the complaint contains evidence to vendor involved in the relevant carriage independent programmer.’’); NFL Enterprises Reply establish at the prima facie stage that the affiliated negotiations detailing the facts at 5–6 (‘‘[T]he best evidence of discriminatory and unaffiliated video programming is similarly supporting the alleged violation of the motive is under the exclusive control of the MVPD situated. In previous cases assessing at the prima * * *. [V]ertically integrated MVPDs are program carriage rules. facie stage whether the complaint contains evidence determined not to provide potential complainants that the affiliated and unaffiliated video with direct evidence of the underlying purpose of programming is similarly situated, the Media 22 See 1993 Program Carriage Order, 9 FCC Rcd their discriminatory conduct.’’). Bureau has assessed similar factors. See Tennis at 2650, para. 18 (‘‘[W]e reject TCI’s suggestion that 24 See NFL Enterprises Reply at 6 (stating that Channel HDO, 25 FCC Rcd at 14159–60, paras. 17– we should require evidence of explicit threats, requiring only documentary evidence of improper 18; Herring Broadcasting Inc., d/b/a WealthTV, et because we believe that actual threats may not motive before a programmer can file a complaint al., Memorandum Opinion and Hearing Designation always comprise a necessary condition for a finding ‘‘would make it extremely difficult to bring any Order, 23 FCC Rcd 14787, 14795–97, paras. 12–17 of coercion. Requiring such evidence would complaint, since * * * vertically integrated MVPDs (MB 2008) (‘‘WealthTV HDO’’); NFL Enters. LLC v. establish an unreasonably high burden of proof that are skillful at ensuring that the best evidence of Comcast Cable Communications, LLC, could undermine the intent of section 616 by discrimination—and the only evidence of Memorandum Opinion and Hearing Designation allowing multichannel distributors to engage in bad discriminatory intent—is found only in the control Order, 23 FCC Rcd 14787, 14822–23, para. 75 (MB faith negotiations that apparently would not violate of the MVPD’’); Outdoor Channel Nov. 16 2007 Ex 2008) (‘‘NFL Enterprises HDO’’); TCR Sports the statute and our regulations simply because Parte Letter at 2 (‘‘Because evidence of predatory Broadcasting Holding, LLP, d/b/a Mid-Atlantic explicit threats were not made during such intent is commonly controlled by the MVPD, and Sports Network v. Comcast Corp., Memorandum negotiations. In contrast, we believe that section not the programmer, it is unrealistic to expect a Opinion and Hearing Designation Order, 23 FCC 616(a)(2) was intended to prohibit implicit as well programmer to have clear evidence of predation Rcd 14787, 14835–36, para. 108 (MB 2008) (‘‘MASN as explicit behavior that amounts to ‘coercion.’ ’’). before it can bring a claim.’’). II HDO’’).

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discrimination on the basis of affiliation 16. We emphasize that a Media 17. We also clarify that the Media by demonstrating that the defendant Bureau finding that a complainant has Bureau’s determination of whether a MVPD carries an affiliated music established a prima facie case does not complainant has established a prima channel targeted to younger viewers but mean that the complainant has proven facie case is based on a review of the has declined to carry an unaffiliated its case or any elements of its case on complaint (including any attachments) music channel targeted to older viewers the merits. Rather, a prima facie finding only. If the Media Bureau determines with lower ratings and a higher license means that the complainant has that the complainant has established a fee. Second, the complaint must contain provided sufficient evidence in its prima facie case, the Media Bureau will evidence that the defendant MVPD has complaint, without the Media Bureau then review the answer (including any treated the video programming provided having considered any evidence to the attachments) and reply to determine by the complainant programming contrary, to proceed. If the complainant whether there are procedural defenses vendor differently than the similarly establishes a prima facie case but the that might warrant dismissal of the case situated video programming provided record is not sufficient to resolve the (e.g., arguments pertaining to the statute by the programming vendor affiliated complaint, the adjudicator (i.e., either of limitations); whether there are any with the defendant MVPD with respect the Media Bureau or an ALJ) will allow issues that the defendant MVPD to the selection, terms, or conditions for the parties to engage in discovery 30 and concedes; whether there are substantial carriage.28 In the absence of direct will then conduct a de novo and material questions of fact as to evidence supporting the claim that the examination of all relevant evidence on whether the defendant MVPD has defendant MVPD discriminated ‘‘on the each factual and legal issue. For engaged in conduct that violates the basis of affiliation or non-affiliation,’’ example, although the Media Bureau program carriage rules; whether the case the circumstantial evidence discussed may find that a complaint contains can be addressed by the Media Bureau here will establish this element of a sufficient evidence to establish a prima on the merits based on the pleadings or prima facie case of a violation of the facie case that a defendant MVPD’s whether further evidentiary proceedings program carriage discrimination conduct has the effect of unreasonably are necessary; and whether the provision. restraining the ability of the proceeding should be referred to an ALJ 15. In addition, we note that the complainant programming vendor to in light of the nature of the factual program carriage discrimination compete fairly, thus allowing the case to disputes. For example, if the Media provision prohibits only conduct that proceed, the adjudicator when ruling on Bureau determines that the complainant has ‘‘the effect of * * * unreasonably the merits may reach an opposite has established a prima facie case but restrain[ing] the ability of an conclusion after conducting further the defendant MVPD provides unaffiliated video programming vendor proceedings and developing a more legitimate and non-discriminatory to compete fairly.’’ Thus, regardless of complete evidentiary record.31 business reasons in its answer for its whether the complainant relies on adverse carriage decision, the Media direct or circumstantial evidence of HDO, 23 FCC Rcd at 14798, para. 19, 14802, paras. Bureau might conclude that there are discrimination ‘‘on the basis of 29–31, 14807–08, paras. 41–42, 14812–13, paras. substantial and material questions of affiliation or non-affiliation,’’ the 53–54; NFL Enterprises HDO, 23 FCC Rcd at 14823– 25, paras. 77–78; MASN II HDO, 23 FCC Rcd at fact that warrant allowing the parties to complaint must also contain evidence 14836, para. 110; MASN I HDO, 21 FCC Rcd at engage in discovery or referring the that the defendant MVPD’s conduct has 8993–94, para. 11. matter to an ALJ for an adjudicatory the effect of unreasonably restraining 30 Under the current program carriage rules, hearing, or it might conclude that the the ability of the complainant discovery is Commission-controlled, meaning that Media Bureau staff identifies the matters for which complaint can be resolved on the merits programming vendor to compete discovery is needed and then issues letters of based on the pleadings. 29 fairly. inquiry to the parties on those matters or requires the parties to produce specific documents related to B. Deadline for Defendant’s Answer to a 28 See Tennis Channel HDO, 25 FCC Rcd at those matters. See 1993 Program Carriage Order, 9 Program Carriage Complaint 14160–61, para. 19; WealthTV HDO, 23 FCC Rcd at FCC Rcd at 2655–56, para. 32; see also id. at 2652, 18. Our current rule provides that an 14797, para. 18, 14801, para. 28, 14806, para. 40, para. 23 (providing that discovery will ‘‘not 14812, para. 52; NFL Enterprises HDO, 23 FCC Rcd necessarily be permitted as a matter of right in all MVPD served with a program carriage at 14823, para. 76; MASN II HDO, 23 FCC Rcd at cases, but only as needed on a case-by-case basis, complaint shall answer the complaint 14836, para. 109; MASN I HDO, 21 FCC Rcd at as determined by the staff’’); see also 47 CFR 76.7(f). within 30 days of service. We amend 8993–94, para. 11; but see Hutchens In the NPRM in MB Docket No. 11–131, we propose this rule to provide an MVPD with 60 Communications, Inc. v. TCI Cablevision of to revise these procedures by providing for Georgia, Inc., Memorandum Opinion and Order, 9 expanded discovery, whereby parties to a program days to answer a program carriage FCC Rcd 4849, 4853, para. 27 (CSB 1994) (finding carriage complaint may serve requests for discovery complaint.32 Having established specific that complainant programming vendor did not directly on opposing parties rather than relying on evidentiary requirements for what the make a prima facie showing of discrimination on the Media Bureau staff to seek discovery through the basis of affiliation because it failed to letters of inquiry or document requests. See NPRM complainant must provide in its demonstrate that it was offered different price, in MB Docket No. 11–131, paras. 42–43. We also terms, or conditions as compared to that offered to seek comment on an automatic document case based on the pleadings and refrain from an affiliated programming vendor). production process whereby both parties would referring these specific issues for further evidentiary 29 See 1993 Program Carriage Order, 9 FCC Rcd have a certain period of time after the Media proceedings. For example, to the extent that the at 2648, para. 14 (citing 47 U.S.C. 536(a)(3)). The Bureau’s prima facie determination to produce parties concede that the complainant is a video Media Bureau will assess on a case-by-case basis basic threshold documents listed in the programming vendor and the defendant is an whether the complaint contains evidence at the Commission’s rules that are relevant to the program MVPD, further evidentiary proceedings on these prima facie stage to establish that the effect of the carriage claim at issue. See NPRM in MB Docket No. issues are unnecessary. defendant MVPD’s conduct is to unreasonably 11–131, paras. 44–47. 32 See Letter from Ryan G. Wallach, Counsel for restrain the ability of the complainant video 31 Compare WealthTV HDO, 23 FCC Rcd 14787 Comcast, to Marlene H. Dortch, Secretary, FCC, MB programming vendor to compete fairly. In previous with Herring Broadcasting Inc., d/b/a WealthTV, et Docket No. 07–42 (Dec. 10, 2008), Attachment at 2 cases, the Media Bureau has made this assessment al., Recommended Decision, 24 FCC Rcd 12967 (urging the Commission to allow defendants 60 based on the impact of the defendant MVPD’s (Chief ALJ Sippel 2009) (‘‘WealthTV Recommended days to file an answer); Letter from Arthur H. adverse carriage action on the programming Decision’’) and Herring Broadcasting Inc., d/b/a Harding, Counsel for Time Warner Cable, to vendor’s subscribership, licensee fee revenues, WealthTV, et al., Memorandum Opinion and Order, Marlene H. Dortch, Secretary, FCC, MB Docket No. advertising revenues, ability to compete for FCC 11–94 (2011) (‘‘WealthTV Commission 07–42 (June 1, 2011), at 2 (stating that a program advertisers and programming, and ability to realize Order’’). We note, however, the Media Bureau in carriage defendant needs a full and fair opportunity economies of scale. See Tennis Channel HDO, 25 the course of making a prima facie determination to respond to a complaint) (‘‘Time Warner Cable FCC Rcd at 14161–62, paras. 20–21; WealthTV may rule on the merits of certain elements of the June 1 2011 Ex Parte Letter’’).

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complaint to establish a prima facie case expeditious action on program carriage provides sufficient time for the Media of a program carriage violation, we complaints. We believe that establishing Bureau to make a prima facie believe it is appropriate to provide the deadlines for the Media Bureau and determination while providing for the defendant with additional time to ALJs when acting on program carriage ‘‘expedited review’’ required by answer the complaint in order to complaints will help to resolve disputes Congress. In light of this expedited develop a full, case-specific response, quickly and efficiently and thus fulfill timeframe for the Media Bureau’s prima with supporting evidence, to the our statutory mandate to ‘‘provide for facie determination, we again evidence put forth by the complainant. expedited review’’ of program carriage emphasize that complainants should not As discussed in the next section, complaints. While the Commission in raise new matters in a reply 38 and that Congress directed the Commission to the 1993 Program Carriage Order additional pleadings outside of the ‘‘provide for expedited review’’ of directed both the Media Bureau and pleading cycle will not be accepted.39 program carriage complaints, and we ALJs to resolve cases ‘‘expeditiously,’’ 21. For the second step, we impose adopt deadlines herein for the Media we now conclude that a specific different deadlines for a ruling on the Bureau and ALJs when acting on deadline codified in our rules is needed merits of the complaint depending upon program carriage complaints to satisfy to ensure that this goal is achieved.35 whether the adjudicator is the Media this requirement. Providing additional 20. Action on program carriage Bureau or an ALJ. After the Media time for a defendant to file an Answer complaints entails a two-step process: Bureau concludes that the complaint to a complaint does not conflict with The initial prima facie determination by contains sufficient evidence to establish this requirement. By requiring a the Media Bureau, followed (if a prima facie case, the Media Bureau complainant to provide specific necessary) by a decision on the merits has three options for addressing the evidence in its complaint and providing by an adjudicator (i.e., either the Media merits of the complaint: (i) The Media a defendant with additional time to Bureau or an ALJ).36 We adopt Bureau can rule on the merits of the respond to this evidence and provide deadlines herein for both of these steps. complaint based on the pleadings specific evidence supporting its For the first step, we direct the Media without discovery; 40 (ii) if the Media response, the rules we adopt today will Bureau to release a decision Bureau determines that the record is not allow for the development of a more determining whether the complainant sufficient to resolve the complaint, the robust factual record earlier in the has established a prima facie case Media Bureau may outline procedures complaint process than under our within 60 calendar days after the for discovery before proceeding to rule current rules. We believe that this will complainant’s reply to the defendant’s on the merits of the complaint; 41 or (iii) better enable the Media Bureau to either answer is filed (or the date on which the if the Media Bureau determines that resolve cases on the merits based on the reply would be due if none is filed). disposition of the complaint or discrete pleadings without referring the matter to Based on our past experience in issues raised in the complaint requires an ALJ, or narrow the factual issues in addressing program carriage complaints, resolution of factual disputes or other dispute that warrant discovery or we believe that 60 calendar days after extensive discovery in an adjudicatory referral to an ALJ. As a result, this will the complainant files its reply 37 proceeding, the Media Bureau will refer lead to the more expeditious resolution the proceeding or discrete issues arising of disputes than under other current Comments at 18; ION Dec. 11 2008 Ex Parte Letter, in the proceeding for an adjudicatory Attachment at 1; NAIN June 5 2008 Ex Parte Letter, program carriage complaint procedures. Attachment at 1; HDNet July 22 2008 Ex Parte C. Deadlines for Media Bureau and ALJ Letter (attaching Letter from U.S. Sen. Herb Kohl to to a complaint and a 20-calendar-day period for Kevin J. Martin, Chairman, FCC (June 23, 2008) at filing a reply to the answer). See 47 CFR Decisions 2 (‘‘I urge that the FCC set a deadline by which 76.1302(e)(1), (f). 19. The record reflects that the program carriage complaints by programmers be 38 See 47 CFR 76.1302(e) (stating that a reply decided in prompt and reasonable time * * *.’’)); ‘‘shall be responsive to matters contained in the unpredictable and sometimes lengthy id. (attaching Letter from U.S. Sen. Byron L. Dorgan answer and shall not contain new matters’’). time frames for Commission action on to Kevin J. Martin, Chairman, FCC (June 13, 2008) 39 See 1993 Program Carriage Order, 9 FCC Rcd program carriage complaints have at 1 (‘‘I worry that while the FCC has a shot clock at 2652, para. 23 (‘‘Given the statute’s explicit discouraged programming vendors from for consideration of forbearance petitions, in a direction to the Commission to handle program 33 separate area of programming discrimination, the carriage complaints expeditiously, additional filing complaints. Both programming Commission lacks any type of timeline.’’)); id. pleadings will not be accepted or entertained unless 34 vendors and MVPDs support (attaching Letter from U.S. Reps. Gene Green, Mike specifically requested by the reviewing staff.’’); see Doyle, and Charles Gonzalez to Kevin J. Martin, id. at 2654–55, para. 30 n.51 (‘‘[U]nless specifically 33 See TAC Comments at 9 (‘‘Faced with the Chairman, FCC (June 30, 2008) at 2 (urging the requested by the Commission or its staff, additional likelihood of FCC inaction, combined with the real Commission to adopt a ‘‘shot clock’’)). pleadings such as motions to dismiss or motions for risk of retaliation by cable operators, [] no 35 See 1993 Program Carriage Order, 9 FCC Rcd summary judgment will not be considered. We independent channel would want to file with the at 2655–56, para. 32 (directing Media Bureau staff intend to keep pleadings to a minimum to comply FCC.’’); HDNet June 16 2010 Ex Parte Letter at 5 to ‘‘develop a discovery process and timetable to with the statutory directive for an expedited (‘‘Independent programmers simply cannot resolve the dispute expeditiously’’); see id. at 2656, adjudicatory process.’’) (emphasis in original). commence proceedings against potential carriers, para. 34 (‘‘ALJs are expected to resolve program 40 See id. at 2652, para. 23 (‘‘[W]e hereby adopt even in cases of clear misconduct, unless these carriage complaints expeditiously, and should hold a system that promotes resolution of as many cases proceedings are truly expedited, as Congress an immediate status conference to establish as possible on the basis of a complaint, answer and directed, because they risk retaliation and, for some timetables for discovery, hearing and submission of reply.’’); but see id. at 2652, para. 24 (‘‘As a independent programmers, financially ruinous briefs and proposed findings of fact and practical matter, however, given that alleged delays in acquiring carriage for their conclusions of law.’’). violations of section 616, especially those involving programming.’’); see also BTNC Comments at 4. 36 A potential third step applies to the extent a potentially ‘coercive’ practices, will require an 34 See TAC Comments at 9 (requesting that the party appeals the decision of the Media Bureau or evaluation of contested facts and behavior related Commission provide a ‘‘shot clock,’’ such as a an ALJ to the Commission. See 47 CFR 1.115, to program carriage negotiations, we believe that the requirement that the Commission hear and resolve 76.10(c)(1) (pertaining to Applications for Review of staff will be unable to resolve most program carriage the complaint within 60 to 90 days); NFL actions taken on delegated authority); 47 CFR 1.276, complaints on the sole basis of a written record as Enterprises Reply at 8 (explaining that, given the 76.10(c)(2) (pertaining to exceptions to initial described above. Rather, we anticipate that time-sensitivity of program carriage disputes, it is decisions of an ALJ). We decline at this time to resolution of most program carriage complaints will critical that the Commission adopt a streamlined establish a deadline for Commission action on require an administrative hearing to evaluate complaint process and an expedited timeline for review of decisions by the Media Bureau or an ALJ. contested facts related to the parties’ specific dispute resolution); HDNET Reply at 1 (endorsing 37 As amended herein, the program carriage rules negotiations.’’). an expedited complaint resolution process); provide for a 80-calendar-day initial pleading cycle 41 See id. at 2655–56, paras. 31–33; see also 47 WealthTV Reply at 1 (same); see also NAMAC (i.e., a 60-calendar-day period for filing an answer CFR 76.7(f).

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hearing before an ALJ.42 We establish judge to performance appraisals.’’ 44 We failed to resolve their dispute through the following deadlines for the do not believe that the 240-calendar-day ADR. Because the parties would have adjudicator’s decision on the merits. For deadline adopted herein will unduly already been involved in a complaint complaints that the Media Bureau interfere with the ALJ’s independence, proceeding before the Media Bureau decides on the merits based on the and this deadline will not be used for resulting in the prima facie pleadings without discovery, the Media performance appraisals.45 determination and will have had the Bureau must release a decision within 22. We also amend certain procedural opportunity to retain counsel for 60 calendar days after its prima facie deadlines applicable to adjudicatory litigating the complaint before the determination. We believe this hearings to reflect that an adjudicatory Media Bureau, we believe that reducing hearing involving a program carriage timeframe is sufficient to allow the the time for filing a written appearance complaint does not commence until a Media Bureau to review the record and in a program carriage matter referred to draft and release a decision on the party elects not to pursue ADR pursuant an ALJ from 20 to five days is merits. For complaints that the Media to § 76.7(g)(2) or, if the parties have reasonable. We also amend our rules to Bureau decides on the merits after mutually elected to pursue ADR, the discovery is conducted, the Media parties fail to resolve their dispute specify the consequences of failing to Bureau must release a decision within through ADR. We also adopt expedited timely file a written appearance in a 150 calendar days after its prima facie deadlines to account for the 240- program carriage matter referred to an determination. We believe this calendar-day deadline for the ALJ’s ALJ. If the complainant fails to file a timeframe is sufficient to allow for the initial decision. First, we revise the written appearance by this deadline, or entry of a protective order, discovery, deadline for filing a written appearance fails to file prior to the deadline either and the submission of supplemental in a program carriage matter referred to a petition to dismiss the proceeding briefs and other information required by an ALJ. Section 1.221(c) of the without prejudice or a petition to the Media Bureau, as well as for the Commission’s rules provides that a accept, for good cause shown, a written Media Bureau to review the record and written appearance must be filed within appearance beyond such deadline, the draft and release a decision on the 20 days of the mailing of the HDO. We Chief ALJ shall dismiss the complaint merits. For complaints referred to an amend this rule to provide that, in a with prejudice for failure to prosecute. ALJ for a decision on the merits, we program carriage complaint proceeding If the defendant fails to file a written believe that a longer timeframe is that the Media Bureau refers to an ALJ, appearance by this deadline, or fails to warranted to allow for, among other a party must file a written appearance file prior to this deadline a petition to things, the preparation for and conduct within five calendar days after the party accept, for good cause shown, a written of a fair hearing, the submission of informs the Chief ALJ that it elects not appearance beyond such deadline, its proposed findings of fact and to pursue ADR or, if the parties have opportunity to present evidence at conclusions of law, and the ALJ’s mutually elected to pursue ADR, within hearing will be deemed to have been preparation of an initial decision and, if five calendar days after the parties waived. If the hearing is so waived, the necessary, formulation of a remedy. inform the Chief ALJ that they have Chief ALJ will terminate the proceeding Accordingly, we direct the ALJ to and certify to the Commission the release an initial decision within 240 44 See Proposals to Reform the Commission’s Comparative Hearing Process to Expedite the complaint for resolution based on the calendar days after one of the parties Resolution of Cases, Report and Order, 5 FCC Rcd existing record. Second, we revise the informs the Chief ALJ that it elects not 157, para. 40 n.26 (1990) (citing Butz v. Economou, deadline for filing a motion to enlarge, 438 U.S. 478, 513 (1978) and 5 CFR 930.211) (‘‘1990 to pursue ADR or, if the parties have change, or delete issues. Section mutually elected to pursue ADR, within Comparative Hearing Order’’). 45 1.229(a) provides that a motion to 240 calendar days after the parties We note that only one previous ALJ decision has addressed the merits of a program carriage enlarge, change, or delete issues shall be inform the Chief ALJ that they have complaint. See WealthTV Recommended Decision. filed within 15 days after the HDO is failed to resolve their dispute through In that case, the ALJ reached a decision one year published in the Federal Register. We ADR.43 To the extent that the Media after the Media Bureau’s HDO. We do not believe Bureau refers only discrete issues raised this timeframe is necessarily reflective of the time amend this rule to provide that, in a required to reach a decision on the merits of a program carriage complaint proceeding in the proceeding to the ALJ rather than program carriage complaint given the unique the entire proceeding, we expect that circumstances of this case, including the following: that the Media Bureau refers to an ALJ, the ALJ will be able to act in less than (i) The case consolidated four separate complaints a motion to enlarge, change, or delete involving the same complainant against four issues shall be filed within 15 calendar 240 calendar days. We note that the separate defendant MVPDs; and (ii) the proceeding Commission has previously stated that was delayed by the Media Bureau’s decision to take days after the deadline for filing a ‘‘[t]ime limits on the ALJs are back jurisdiction over the case, which was written notice of appearance. Third, we permissible so long as they do not subsequently rescinded by the Commission. See revise the deadline for holding an initial Herring Broadcasting Inc., d/b/a WealthTV, et al., prehearing conference. Section 1.248 of unduly interfere with a judge’s Memorandum Opinion and Order, 23 FCC Rcd independence to control the course of 18316 (MB 2008), rescinded by Herring the Commission’s rules provides that, to the proceeding * * * or subject the Broadcasting Inc., d/b/a WealthTV, et al., Order, 24 the extent an initial prehearing FCC Rcd 1581 (2009). Although the type and conference is scheduled, it shall be complexity of cases referred to ALJs vary 42 See 1993 Program Carriage Order, 9 FCC Rcd considerably, we note that the ALJ has ruled within scheduled 30 days after the effective at 2652, para. 24 and 2656, para. 34; see also 47 CFR approximately 240 calendar days after referral in date of the HDO, unless good cause is 76.7(g)(1). In cases referred to an ALJ, the parties previous cases. See Under His Direction, Inc., Initial shown for scheduling the conference at have ten days after the Media Bureau’s prima facie Decision, 11 FCC Rcd 16831 (ALJ Luton 1996) determination to elect whether to attempt to resolve (approximately eight months from HDO to ALJ’s a later date. We amend this rule to their dispute through ADR. See 47 CFR 76.7(g)(2); decision); AJI Broad., Inc., Initial Decision, 11 FCC provide that, to the extent the ALJ in a see also 1993 Program Carriage Order, 9 FCC Rcd Rcd 19756 (ALJ Luton 1996) (approximately eight program carriage complaint proceeding at 2652, para. 24 and 2656, para. 34. months from HDO to ALJ’s decision); Community 43 § 76.7(g)(2) of the Commission’s rules currently Educ. Ass’n, Initial Decision, 10 FCC Rcd 3179 (ALJ conducts an initial prehearing states that a party must submit in writing to the Chachkin 1995) (approximately eight months from conference, the conference shall be held Commission its election as to whether to proceed HDO to ALJ’s decision); Aurio A. Matos, Initial no later than ten calendar days after the to ADR. See 47 CFR 76.7(g)(2). We amend this rule Decision, 8 FCC Rcd 7920 (ALJ Gonzalez 1993) deadline for filing a written notice of to further specify that this election must also be (approximately seven months from HDO to ALJ’s submitted with the Chief ALJ. decision). appearance, or within such shorter or

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longer period as the ALJ may allow appeal to the Commission of an ALJ’s that, absent a standstill, an MVPD will consistent with the public interest.46 decision to toll the deadline shall be have the ability to retaliate against a 23. We believe that the deadlines filed only if allowed by the ALJ. To the programming vendor that files a established herein for a decision by the extent the ALJ does not allow an appeal, legitimate complaint by ceasing carriage Media Bureau or an ALJ on a program or if no permission to file an appeal is of the programming vendor’s video carriage complaint provide sufficient requested, an objection to the ALJ’s programming, thereby harming the time for the adjudicator to reach a decision to toll the deadline may be programming vendor as well as viewers decision on the merits while also raised on review of the ALJ’s initial who have come to expect to be able to providing for the ‘‘expedited review’’ decision. view that video programming.52 required by Congress and ensuring 24. Taken together, the 80-calendar- Moreover, absent a standstill, fairness to all parties.47 We will allow day initial pleading cycle, the 60- programming vendors may feel the adjudicator to toll these deadlines calendar-day deadline for a prima facie compelled to agree to the carriage only under certain circumstances. First, determination, the 10-calendar-day ADR demands of MVPDs, even if these the adjudicator can toll a deadline if the election period in cases referred to an demands violate the program carriage parties jointly request tolling in order to ALJ, and the 60- or 150-calendar-day (in rules, in order to maintain carriage of pursue settlement discussions or ADR cases decided by the Media Bureau, video programming in which they have or for any other reason that the parties depending on whether discovery is made substantial investments. While mutually agree justifies tolling.48 conducted) or 240-calendar-day (in some MVPDs may offer month-to-month Second, the adjudicator may toll a cases decided by an ALJ) deadline for a extensions after expiration of a carriage deadline if complying with the deadline ruling on the merits mean that program contract, programming vendors explain would violate the due process rights of carriage complaints will be resolved that such extensions may lead to a party or would be inconsistent with within approximately seven or ten uncertainty for viewers and fundamental fairness. Finally, in months (in cases decided by the Media programming vendors and impede the extraordinary situations, tolling a Bureau, depending on whether ability of programming vendors to deadline may be necessary in light of discovery is conducted) or thirteen attract financing. the adjudicatory resources available at months (in cases decided by an ALJ) 26. The Supreme Court has affirmed the time in the Office of Administrative after a complaint is filed, assuming that the Commission’s authority to impose Law Judges. The Commission has a the parties do not elect ADR or seek to interim injunctive relief, in the form of number of alternatives under such toll the deadlines. While these a standstill order, pursuant to section circumstances to ensure expedited timeframes are longer than our review, but a brief tolling of deadlines aspirational goals for resolving program may be required in pending hearing 49 wary’’ of importing a standstill adopted for program access complaints, we believe these access complaints into the program carriage context cases. To the extent an ALJ decides to time frames are necessary given the because, unlike the program access context where toll the deadline, we emphasize that this often fact-intensive nature of program a network is under an obligation not to withhold interlocutory decision will not be carriage claims, which will often focus the network from an MVPD, there is no duty to appealable to the Commission as a carry a network in the program carriage context. See on the details of the negotiation process Letter from David P. Murray, Counsel for Comcast, matter of right. Rather, pursuant to and similarities and differences in to Marlene H. Dortch, Secretary, FCC, MB Docket § 1.301(b) of the Commission’s rules, an programming.50 No. 07–42 (July 25, 2011), at 3 n.9 (‘‘Comcast July 25 2011 Ex Parte Letter’’). In fact, the Commission 46 We note that the parties may commence D. Temporary Standstill of Existing adopted a program access standstill requirement for discovery before the prehearing conference is held. Contract Pending Resolution of a both satellite-delivered and terrestrially delivered See 47 CFR 1.311(c)(2). Program Carriage Complaint networks, despite the fact that a terrestrially 47 We note that the Commission in the 1993 delivered network is under no obligation to refrain Program Carriage Order rejected a 90-day deadline 25. We establish specific procedures from withholding the network from an MVPD in the for resolution of program carriage complaints. See for the Media Bureau’s consideration of absence of a Commission order. See 2010 Program 1993 Program Carriage Order, 9 FCC Rcd at 2655, Access Order, 25 FCC Rcd at 794, para. 71. We also requests for a temporary standstill of the note that there are important parallels between the para. 32 n.52. We continue to believe that a 90-day price, terms, and other conditions of an deadline is impractical, but the longer deadlines program access and program carriage regimes, established herein are realistic given our experience existing programming contract by a inasmuch as both are based on concerns with the with program carriage cases since 1993. We also program carriage complainant seeking impact of vertical integration on competition in the note that the Commission previously declined to renewal of such a contract. The video distribution and video programming markets. adopt revised deadlines for resolving program Moreover, Comcast ignores the fact that the program access complaints, stating that ‘‘overly accelerated procedures we adopt herein mirror the carriage regime may also impose a duty on an pleading and discovery time periods can lead to procedures adopted previously for MVPD to carry a programming vendor if the MVPD increased litigation costs if the parties are required temporary standstills involving program otherwise refuses to do so on the basis of affiliation to hire additional staff and counsel in attempting access complaints.51 The record reflects or non-affiliation. to meet unrealistic deadlines.’’ See Review of the 52 See WealthTV Aug. 4 2008 Ex Parte Letter Commission’s Program Access Rules and (attaching Letter from U.S. Sen. Amy Klobuchar to Examination of Programming Tying Arrangements, 49 See 2007 Program Access Order, 22 FCC Rcd Kevin J. Martin, Chairman, FCC (July 24, 2008) at MB Docket No. 07–198, Report and Order, 22 FCC at 17857, para. 108 (retaining goal of resolving 1 (‘‘Independent programming providers continue Rcd 17791, 17857, para. 108 (2007) (‘‘2007 Program program access complaints within five months from to express concern that continued uncertainties and Access Order’’). We find these concerns are not the submission of a complaint for denial of delays create a chilling effect on their willingness presented here because the deadlines we adopt for programming cases, and nine months for all other to bring discrimination complaints, because of their resolving program carriage complaints are not program access complaints, such as price fear of potential retaliation by MVPDs while a ‘‘overly accelerated’’ or unrealistic. discrimination cases). complaint remains pending.’’)); HDNet Nov. 20 48 For example, if the parties jointly request to toll 50 See Comcast Comments at 31–33 (arguing that 2007 Ex Parte Letter at 2 (‘‘An MVPD could retaliate the Media Bureau’s 60-calendar-day deadline for program carriage cases are more complex than by allowing the clock to run and harmful reaching a prima facie determination to pursue program access cases). uncertainty about the unaffiliated video settlement discussions or ADR, the Media Bureau 51 See 47 CFR 76.1003(l); Review of the programming provider to mount, or even by will toll the deadline until the parties jointly inform Commission’s Program Access Rules and allowing the arrangement to expire and then the Media Bureau that efforts to resolve the dispute Examination of Programming Tying Arrangements, removing the unaffiliated video programming were unsuccessful. Similarly, if the parties jointly First Report and Order, 25 FCC Rcd 746, 794–797, provider from the platform.’’); see also NAIN June request to toll the deadline for reaching a decision paras. 71–75 (2010) (‘‘2010 Program Access 5 2008 Ex Parte Letter, Attachment at 1; Letter from on the merits, the adjudicator will toll the deadline Order’’), vac’d in part, Cablevision Sys. Corp. v. David S. Turetsky, Counsel for HDNet LLC, to until the parties jointly inform the adjudicator that FCC, 2011 WL 2277217 (D.C. Cir. June 10, 2011). Marlene H. Dortch, Secretary, FCC, MB Docket No. efforts to resolve the dispute were unsuccessful. Comcast contends that the Commission ‘‘should be 07–42 (June 4, 2008) at 2.

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4(i).53 The Commission recently relied 27. Pursuant to the rules we adopt advance of the expiration of the existing on this authority in adopting standstill herein, a program carriage complainant contract, and in no case later than 30 procedures for program access cases. seeking renewal of an existing days prior to such expiration, to provide Under section 4(i), the Commission is programming contract, under which the Media Bureau with sufficient time to authorized to ‘‘make such rules and programming is then being provided, act prior to expiration. In its petition, regulations * * * as may be necessary may submit along with its complaint a the complainant must demonstrate how in the execution of its functions,’’ and petition for a temporary standstill of its grant of the standstill will meet the to ‘‘[m]ake such rules and regulations programming contract pending following four criteria: (i) The * * * not inconsistent with law, as may resolution of the complaint.56 We complainant is likely to prevail on the be necessary to carry out the provisions encourage complainants to file the merits of its complaint; (ii) the of this Act.’’ 54 Accordingly, the petition and complaint sufficiently in complainant will suffer irreparable Commission has statutory authority to harm absent a stay; (iii) grant of a stay impose a temporary standstill of an 07–42 (July 1, 2011) (‘‘NCTA July 1 2011 Ex Parte will not substantially harm other existing contract in appropriate cases Letter’’); see also Comcast July 25 2011 Ex Parte interested parties; and (iv) the public Letter at 1–2. We disagree. Section 616(a) expressly 57 pending resolution of a program carriage directs the Commission to ‘‘establish regulations interest favors grant of a stay. As part complaint. While a complainant could governing program carriage agreements and related of a showing of irreparable harm, a request, and the Commission or Media practices.’’ 47 U.S.C. 536(a). Further, a temporary complainant may discuss, among other Bureau could issue, a standstill order in standstill order could be found necessary to prevent the likely occurrence of one of the practices things, the impact on subscribers and a program carriage complaint expressly prohibited in section 616(a). See 47 the extent to which the programming proceeding under the same standards U.S.C. 536(a)(1)–(3). Moreover, we note that section vendor’s advertising and license fee described in this order without the new 624(f)(1) is directed at the ‘‘provision or content of revenues and its ability to compete for procedures adopted herein, we believe cable services’’ and thus by its terms does not apply to other types of MVPD services, such as direct advertisers and programming will be that codifying uniform procedures will 58 broadcast satellite service. 47 U.S.C. 544(f)(1). We adversely affected absent a standstill. help to expedite action on standstill need not, and do not, decide whether section requests and provide guidance to 624(f)(1) would bar granting temporary injunctive 57 See, e.g., Virginia Petroleum Jobbers Ass’n v. complainants and MVPDs.55 relief in the program carriage context in some FPC, 259 F.2d 921, 925 (D.C. Cir. 1958); see also circumstances. Instead, we ask for comment on that Washington Metropolitan Area Transit Comm’n v. issue in the accompanying NPRM in MB Docket No. Holiday Tours, 559 F.2d 841 (D.C. Cir. 1977) 53 United States v. Southwestern Cable Co., 392 11–131. (clarifying the standard set forth in Virginia U.S. 157, 181 (1968); see also AT&T Corp. v. We also reject Comcast’s claim that the Petroleum Jobbers Ass’n v. FPC); Hispanic Ameritech Corp., Memorandum Opinion and Order, Commission cannot rely on section 4(i) as authority Information and Telecomm. Network, Inc., 20 FCC 13 FCC Rcd 14508 (1998) (standstill order issued for granting a standstill because section 616(a)(5) of Rcd 5471, 5480, para. 26 (2005) (affirming Bureau’s pursuant to 47 U.S.C. 154(i) temporarily preventing denial of request for stay on grounds applicant Ameritech from enrolling additional customers in, the Act and § 76.1302(g)(1) of the Commission’s and marketing and promoting, a ‘‘teaming’’ rules prevent the Commission from imposing failed to establish four criteria demonstrating stay arrangement with Qwest Corporation pending a remedies or penalties unless and until a violation is warranted). We reject Comcast’s claim that the decision concerning the lawfulness of the program); of section 616 has been found after an adjudication first criterion requires a showing of a ‘‘substantial’’ Formal Complaints Order, 12 FCC Rcd at 22566, on the merits. See Comcast July 25 2011 Ex Parte likelihood of success on the merits. See Comcast para. 159 and n.464 (1997) (stating that the Letter at 1–2 (citing 47 U.S.C. 536(a)(5) (requiring July 25 2011 Ex Parte Letter at 3. The factors set Commission has authority under section 4(i) of the the Commission to establish regulations forth above are consistent with Supreme Court Act to award injunctive relief); Time Warner Cable, ‘‘provid[ing] for appropriate penalties and remedies precedent (Winter v. Natural Resources Defense Order on Reconsideration, 21 FCC Rcd 9016 (MB for violations of this subsection, including Council, Inc., 555 U.S. 7 (2008)) and a recent D.C. 2006) (standstill order issued pursuant to section carriage’’); 47 CFR 76.1302(g)(1) (‘‘Upon completion Circuit case applying Winter. See Winter, 505 U.S. 4(i) denying a stay and reconsideration of the Media of such adjudicatory proceeding, the Commission at 20 (‘‘A plaintiff seeking a preliminary injunction Bureau’s order requiring Time Warner temporarily shall order appropriate remedies * * *.’’); AT&T must establish that he is likely to succeed on the to reinstate carriage of the NFL Network on systems Co. v. FCC, 487 F.2d 865, 874–76 (2d Cir. 1973)). merits, that he is likely to suffer irreparable harm that it recently acquired from Adelphia As an initial matter, as noted above, the in the absence of preliminary relief, that the balance Communications and Comcast Corporation until the Commission has longstanding authority to grant of equities tips in his favor, and that an injunction Commission could resolve on the merits the injunctive relief pursuant to section 4(i) and is in the public interest.’’) (emphasis added; Emergency Petition for Declaratory Ruling filed by recently relied on that authority in adopting citations omitted); Sherley v. Sebelius, 2011 WL the NFL). standstill procedures for program access cases. We 1599685, *4 (D.C. Cir. Apr. 29, 2011) (quoting and 54 47 U.S.C. 154(i), 303(r). In contract to the do not believe that the provisions cited by Comcast applying the Winter test). We also reject Comcast’s retransmission consent context, there is no statutory preclude the Commission from imposing interim claim that a program carriage standstill is a provision with which the Commission-ordered injunctive relief upon an appropriate showing. ‘‘mandatory injunction’’ subject to a heightened standstill of a program carriage agreement would be Indeed, the Commission relied on section 4(i) in standard because it will not preserve the status quo inconsistent. See 47 U.S.C. 325(b)(1)(A) (‘‘No cable adopting a standstill procedure for program access but will instead extend the term of a contract set system or other multichannel video programming complaints despite language in the program access to expire on an agreed-upon date and form a new, distributor shall retransmit the signal of a provisions of the Act and the Commission’s rules government-mandated contract. See Comcast July broadcasting station, or any part thereof, except– similar to the language cited by Comcast. See 47 25 2011 Ex Parte Letter at 2. As discussed above, (A) with the express authority of the originating U.S.C. 548(e)(1) (‘‘Upon completion of such we require a complainant to file a standstill request station’’); Amendment of the Commission’s rules adjudicatory proceeding, the Commission shall at least 30 days prior to the expiration of a contract Related to Retransmission Consent, MB Docket No. have the power to order appropriate remedies to allow the Media Bureau with sufficient time to 10–71, Notice of Proposed Rulemaking, 26 FCC Rcd * * *.’’); 47 CFR 76.1003(h)(1) (‘‘Upon completion act prior to expiration. Accordingly, despite 2718, 2727–29, paras. 18–19 (2011) of such adjudicatory proceeding, the Commission Comcast’s claims, a program carriage standstill, if (‘‘Retransmission Consent NPRM’’) (concluding that shall order appropriate remedies * * *.’’). granted, will preserve the status quo by requiring section 325(b) prevents the Commission from 56 We note that program carriage claims involving continued carriage of a network that is being carried ordering interim carriage over the objection of the existing contracts do not arise solely at renewal. at the time the standstill is granted. broadcaster, even upon a finding of a violation of The Media Bureau has previously found at the 58 Comcast claims that a complainant is unlikely the good faith negotiation requirement, and seeking prima facie stage of review that a complainant may to meet the requirements for a standstill because (i) comment on this conclusion). have a timely program carriage claim in the middle Under the first factor, it is unlikely that the facts 55 NCTA has suggested that section 624(f)(1) of of a contract term if the basis for the claim is an will be developed at the standstill stage to the Communications Act, which generally prohibits allegedly discriminatory decision made by the demonstrate a likelihood of success on the merits, any Federal agency, State, or franchising authority MVPD that the contract left to the MVPD’s at least with respect to program carriage complaints from imposing ‘‘requirements regarding the discretion. See Tennis Channel HDO, 25 FCC Rcd alleging discrimination based on circumstantial provision or content of cable services, except as at 14154–59, paras. 11–16; see also NFL Enterprises evidence; (ii) under the second factor, irreparable expressly provided in this title,’’ precludes all HDO, 23 FCC Rcd at 14819–20, paras. 69–70; MASN harm cannot be established when there is an temporary standstill orders in the context of a II HDO, 23 FCC Rcd at 14833–35, paras. 102–105. adequate remedy at law, which Comcast claims program carriage complaint proceeding. 47 U.S.C. We will consider the availability of a standstill exists through a mandatory carriage remedy after a 544(f)(1); see Letter from Rick Chessen, NCTA, to outside of the renewal context on a case-by-case finding of a program carriage violation; and (iii) Marlene H. Dortch, Secretary, FCC, MB Docket No. basis. Continued

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In order to ensure an expedited vendor than was required under the E. Constitutional Issues decision, the defendant will have ten terms of the expired contract, the 31. Our efforts in this Second Report calendar days after service to file an programming vendor will credit the and Order to create an improved answer to the petition for a standstill defendant MVPD with an amount program carriage complaint regime are order. In acting on the petition, the representing the difference between the consistent with constitutional Media Bureau may limit the length of amount actually paid under the terms of requirements. TWC argues that the the standstill to a defined period or may the expired contract during resolution of constitutionality of the program carriage specify that the standstill will continue the complaint and the amount that is rules has never been tested under the until the adjudicator resolves the required to be paid pursuant to the First and Fifth Amendments. TWC underlying program carriage complaint. decision. argues that, to the extent the goal of the The adjudicator may lift the temporary 29. We note that program carriage program carriage rules is to promote standstill to the extent that it finds that complaints do not entail solely price diversity of speech, the rules are the stay is having a negative effect on disputes. Rather, complaints may entail content-based and thus subject to strict settlement negotiations or is otherwise the issue of whether the MVPD should scrutiny, which requires a ‘‘compelling’’ no longer in the public interest. be required to carry a programming government interest and ‘‘narrow 28. If the Media Bureau grants the vendor’s video programming at all or tailoring.’’ Diversity, however, is not the temporary standstill, the adjudicator whether the MVPD should carry the sole or even primary goal of the program ruling on the merits of the complaint video programming on a specific tier. In carriage provision. Rather, through the (i.e., either the Media Bureau or an ALJ) these cases, it may be difficult to apply program carriage provision, Congress will apply the terms of the new the new terms to the standstill period, also specifically intended to promote agreement between the parties, if any, as especially in cases where the competition in both the video of the expiration date of the previous adjudicator does not ultimately order programming market and the video agreement. For example, if carriage of carriage. Despite these complications, distribution market. Indeed, the the video programming has continued we believe that the adjudicator can program carriage discrimination uninterrupted during resolution of the address these issues on a case-by-case provision specifically requires the complaint, and if the decision on the basis. To facilitate expeditious Commission to assess on a case-by-case merits requires the defendant MVPD to resolution of these issues, we propose in basis whether conduct amounting to pay a higher amount to the the NPRM in MB Docket No. 11–131 discrimination on the basis of affiliation programming vendor than was required specific procedures to assist an has the effect of ‘‘unreasonably under the terms of the expired contract, adjudicator to reach a fair and just restrain[ing] the ability of an the defendant MVPD will make an result. unaffiliated video programming vendor 30. As explained in the 2010 Program additional payment to the programming to compete fairly.’’ By favoring its Access Order, we expect parties to deal vendor in an amount representing the affiliated programming vendor on the and negotiate with one another in good difference between the amount that is basis of affiliation, an MVPD can hinder faith to come to settlement while the required to be paid pursuant to the the ability of an unaffiliated program carriage complaint is pending decision and the amount the defendant programming vendor to compete in the at the Commission. We also note that MVPD paid under the terms of the video programming market, thereby the standstill requirement imposed in expired contract pending resolution of allowing the affiliated programming connection with previous merger the complaint. Conversely, if carriage of vendor to charge higher license fees and conditions is automatic upon notice of the video programming has continued reducing competition in the markets for the MVPD’s intent to arbitrate, whereas uninterrupted during resolution of the the acquisition of advertising and the process we adopt here requires a complaint, and if the decision on the programming rights. merits requires the defendant MVPD to complainant to seek Commission 32. The D.C. Circuit has already approval based on the four-criteria test pay a lesser amount to the programming 59 decided that the leased access provision described above. Thus, the of the 1992 Cable Act is not content- Commission will be able to take into under the third factor, forced carriage would result based. The court held that the leased in substantial harm to MVPDs by violating their account all relevant facts in each case. access provision does not favor or First Amendment rights. See Comcast July 25 2011 Moreover, because the new carriage disfavor speech on the basis of the ideas Ex Parte Letter at 4–5. The Media Bureau will have terms will be applied as of the the opportunity to consider these arguments when assessing the facts and circumstances presented in expiration date of the previous contract, In making these claims, Comcast ignores the fact a standstill request on a case-by-case basis. We find we believe that complainants will not that a complainant could request, and the no basis to deny complainants the opportunity to have an incentive to seek a temporary Commission or Media Bureau could issue, a pursue a standstill in the program carriage context standstill solely to benefit from the standstill order in a program carriage complaint simply because of the potential difficulty in 60 proceeding today under the same procedures satisfying the requirements for a standstill. In this status quo or to gain leverage. adopted herein. Thus, all of the alleged practical regard, we note that ‘‘injunctive relief [is] an and policy problems raised by Comcast exist today extraordinary remedy that may only be awarded 59 See supra para. 27; see also Time Warner Cable and are not created by these procedural rules. upon a clear showing that the plaintiff is entitled June 1 2011 Ex Parte Letter at 2 (‘‘An MVPD should Moreover, the procedural rules we adopt herein to such relief.’’ Winter, 505 U.S. at 21 (citation remain free to exercise its contractual rights to drop will help to mitigate these alleged practical and omitted); see also 2010 Program Access Order, 25 or reposition a programmer who has filed a program policy problems. By setting forth the standard that FCC Rcd at 795, para. 73 n.266 (‘‘‘when a party carriage complaint unless the Commission will be applied to a program carriage standstill seeks injunctive relief (which is precisely what a determines that the traditional factors for granting request and establishing specific deadlines for standstill is), the law is clear that this is a request a stay are satisfied.’’). submitting and responding to such a request, we for ‘extraordinary relief,’ and courts therefore 60 Comcast claims that the possibility of a provide certainty to both complainants and MVPDs require such party to demonstrate, on a case-by-case program carriage standstill presents practical and with respect to the standstill process. While basis with a sufficient evidentiary record, that it policy problems, such as affecting existing business Comcast claims that requiring a complainant to file satisfies’ the criteria set forth in Virginia Petroleum negotiations; making it riskier for MVPDs to agree a standstill request no later than 30 days prior to Jobbers Ass’n)’’) (quoting with approval Time to carry new or less popular networks given the the expiration of a contract will chill business Warner Comments at 14 n.42); Sky Angel, 25 FCC potential for a standstill request to be filed at the negotiations by placing parties in litigation before Rcd 3879, 3884, para. 10 (MB 2010) (‘‘we are unable end of the carriage term; and making it more likely a contract ends (see id. at 6), the fact is that, without to conclude that Sky Angel has met its burden of that parties will fail to reach agreement by allowing the procedures we adopt herein, a program carriage demonstrating that the extraordinary relief of a only programming vendors to request a standstill. standstill request could be filed at any time, thereby standstill order is warranted’’). See Comcast July 25 2011 Ex Parte Letter at 5–7. creating greater uncertainty for MVPDs.

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contained therein; rather, it regulates these networks affiliated with cable programming networks.’’ 65 The speech based on affiliation with a cable operators has decreased; 63 channel Commission specifically relied upon the operator. The same conclusion applies capacity has increased, thereby program carriage complaint process to to the program carriage provision of the providing more room for unaffiliated address these concerns. 1992 Cable Act, which prevents MVPDs programming vendors, and cable 34. Moreover, the program carriage from demanding exclusivity or financial operators face more competition in the rules are no broader than necessary interests from, or discriminating on the distribution market today than in because the Commission will find a basis of affiliation with respect to, 1992.64 In the program carriage violation of the rules only after unaffiliated programming vendors and, discrimination provision, however, conducting a proceeding in which the accordingly, regulates speech based on Congress directed the Commission to complaining unaffiliated programming affiliation with an MVPD, not based on assess on a case-by-case basis the impact vendor or MVPD proves that an MVPD its content. The court held in Time of anticompetitive conduct on an has demanded exclusivity from a Warner that the provisions of the 1992 unaffiliated programming vendor’s programming vendor, has demanded a financial interest in a programming Cable Act that regulate speech based on ability to compete. These nationwide vendor, or has discriminated against the affiliation are subject to intermediate figures do not undermine Congress’s programming vendor on the basis of scrutiny and are constitutional if the finding that cable operators and other affiliation and that such discrimination government’s interest is important or MVPDs have the incentive and ability to substantial and the means chosen to has unreasonably restrained the favor their affiliated programming promote that interest do not burden programming vendor’s ability to vendors in individual cases, with the substantially more speech than compete fairly. Thus, the program potential to unreasonably restrain the necessary to achieve the aim. The Time carriage rules burden no more speech ability of an unaffiliated programming Warner court found that there are than necessary to vindicate the vendor to compete fairly. While the D.C. substantial government interests in government’s goal of protecting Circuit in vacating the Commission’s promoting diversity and competition in competition and diversity. the video programming market.61 The horizontal ownership cap stated that 35. We also reject TWC’s claim that program carriage rules, like the leased ‘‘[c]able operators * * * no longer have the program carriage rules infringe cable access requirements, promote diversity the bottleneck power over programming operators’ rights under the Takings in video programming by promoting fair that concerned the Congress in 1992,’’ Clause of the Fifth Amendment. treatment of unaffiliated programming the court in that case was reviewing a Quoting Dolan v. City of Tigard, 512 vendors and providing these vendors broad prophylactic rule that would limit U.S. 374, 386 (1994), TWC argues that, with an avenue to seek redress of individual cable operators to a ‘‘[g]iven the existence of a fiercely anticompetitive carriage practices of maximum percentage of subscribers competitive landscape fostering the MVPDs. Moreover, because MVPDs nationwide. Unlike the rule at issue in development of diverse programming have an incentive to shield their that case, the program carriage statute sources, there is no ‘essential nexus’ or affiliated programming vendors from requires an assessment of the facts of ‘rough proportionality’ that would competition with unaffiliated each case and the impact on the ability justify the taking that occurs under the programming vendors for viewers, of an unaffiliated programming vendor * * * program carriage rules.’’ TWC’s advertisers, and programming rights, the to compete fairly. In addition, we note reliance on Dolan is misplaced, as the program carriage rules promote that the number of cable-affiliated ‘‘essential nexus’’ test concerns land use competition in the video programming networks recently increased regulations that allegedly impose significantly after the merger of Comcast ‘‘unconstitutional conditions’’ and is market by promoting fair treatment of 66 unaffiliated programming vendors. and NBC Universal, thereby inapplicable here. None of the factors Thus, like the leased access rules, the highlighting the continued need for an that the Supreme Court has identified as program carriage rules would be subject effective program carriage complaint particularly significant in evaluating regulatory takings claims supports to, and would withstand, intermediate regime. The Commission noted that that TWC’s claim.67 First, the program scrutiny. transaction would ‘‘result in an entity 33. TWC argues that whatever with increased ability and incentive to harm competition in video 65 See id. at 4284–85, para. 116; see also id. at justification existed for the program 4282, para. 110 (‘‘We agree that the vertical carriage provisions at the time they were programming by engaging in foreclosure integration of Comcast’s distribution network with adopted no longer exists today. Despite strategies or other discriminatory NBCU’s programming assets will increase the TWC’s claim to the contrary, we find actions against unaffiliated video ability and incentive for Comcast to discriminate against or foreclose unaffiliated programming.’’). that the substantial government interests 66 See Dolan, 512 U.S. at 385–86; see also id. at in promoting diversity and competition 51, para. 24 (2009) (‘‘13th Annual Report’’) (based 390 (Fifth Amendment requirement of ‘‘rough remain. TWC notes that the number of on data from 2006, finding that there are 565 proportionality’’ applies where government requires nationally delivered cable networks). a landowner to dedicate private land for some all national programming networks has 63 62 See TWC Comments at 8; Comcast Reply at 5; future public use in exchange for a discretionary grown since 1992; the percentage of compare H.R. Rep. No. 102–628, at 41 (1992) benefit such as a building permit). (stating that 57 percent of nationally delivered cable 67 See Connolly v. Pension Ben. Guaranty Corp., 61 See id. (stating that after Turner, ‘‘promoting networks are affiliated with cable operators) with 475 U.S. 211, 224–25 (1986) (‘‘In all of these cases, the widespread dissemination of information from 13th Annual Report, 24 FCC Rcd at 550–51, para. we have eschewed development of any set formula a multiplicity of sources’’ and ‘‘promoting fair 24 (based on data from 2006, finding that 14.9 for identifying a ‘taking’ forbidden by the Fifth competition in the market for television percent of nationally delivered cable networks are Amendment, and have relied instead on ad hoc, programming’’ must be treated as important affiliated with cable operators). factual inquiries into the circumstances of each governmental objectives unrelated to the 64 See id. at ii and 9–10 (stating that competition particular case. To aid in this determination, suppression of speech (quoting Turner Broad. Sys., in the distribution market requires a cable operator however, we have identified three factors which Inc. v. FCC, 512 U.S. 622 (1994))). to make programming decisions ‘‘based on business have particular significance: (1) The economic 62 See TWC Comments at 8; Comcast Reply at 5; and editorial judgments as to whether particular impact of the regulation on the claimant; (2) the compare H.R. Rep. No. 102–628, at 41 (1992) (68 channels meet the needs and interests of the extent to which the regulation has interfered with nationally delivered cable networks) with Annual operator’s subscribers and to attempt to maximize distinct investment-backed expectations; and (3) the Assessment of the Status of Competition in the consumer value by making the best deal possible in character of the governmental action.’’) (citations Market for the Delivery of Video Programming, arm’s length negotiations’’); see also Comcast Reply and internal quotes omitted), quoted in Exclusive Thirteenth Annual Report, 24 FCC Rcd 542, 550– at 5, 28 n.100, 30. Continued

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carriage rules merely prohibit a cable is required under the APA, the notice IV. Procedural Matters operator from requiring a financial ‘‘need not specify every precise G. Congressional Review Act interest in a video programming vendor proposal which [the agency] may as a condition for carriage, from ultimately adopt as a rule’’; it need only 37. The Commission will send a copy coercing a video programming vendor to ‘‘be sufficient to fairly apprise interested of this Second Report and Order in a provide exclusivity as a condition of parties of the issues involved.’’ In report to be sent to Congress and the carriage, or from discriminating on the particular, the APA’s notice Government Accountability Office basis of affiliation that unreasonably requirements are satisfied where the pursuant to the Congressional Review restrains the ability of unaffiliated video final rule is a ‘‘logical outgrowth’’ of the Act, see 5 U.S.C. 801(a)(1)(A). programming vendors to compete fairly. actions proposed. Here, the Program H. Final Regulatory Flexibility Analysis The program carriage provision of the Carriage NPRM specifically sought Act, as well as our rules implementing comment on, among other questions, Final Regulatory Flexibility Act that provision, do not compel a cable ‘‘whether the elements of a prima facie Analysis operator to carry certain programming, case should be clarified,’’ ‘‘whether 1. As required by the Regulatory nor do they specify the rates for specific time limits on the Commission, Flexibility Act of 1980, as amended carriage. Second, the rules, which have cable operators, or others would (‘‘RFA’’),70 an Initial Regulatory been in force since 1993 and were promote a speedy and just resolution’’ Flexibility Analysis (‘‘IRFA’’) was required by Congress in 1992, do not of program carriage disputes, and incorporated in the Notice of Proposed interfere with any current investment- ‘‘whether the Commission should adopt Rulemaking in MB Docket No. 07–42 backed expectations. Third, the rules rules to address the complaint process (hereinafter referred to as the Program substantially advance the legitimate itself.’’ But in any event, with respect to Carriage NPRM).71 The Commission governmental interest in promoting the standstill procedures, the sought written public comment on the competition and diversity in the video Commission specifically sought proposals in the Program Carriage programming market, an interest that comment on whether to ‘‘adopt NPRM, including comment on the IRFA. Congress has directed the Commission additional rules to protect programmers This present Final Regulatory Flexibility to vindicate and that the courts have from potential retaliation if they file a Analysis (‘‘FRFA’’) conforms to the recognized as important. Finally, our complaint.’’ As discussed above, the RFA.72 examination of the record in this standstill procedure will help to prevent proceeding refutes the premise of TWC’s retaliation while a program carriage A. Need for, and Objectives of, the argument that the program carriage rules complaint is pending, and thus is a Proposed Rule Changes serve no purpose in light of the current ‘‘logical outgrowth’’ of this proposal.69 2. In 1993, the Commission adopted state of competition in the video rules implementing a provision of the programming market. Thus, the rules do have ‘‘substantive effects,’’ the fact is that these 1992 Cable Act 73 pertaining to carriage not effect a ‘‘taking’’ within the meaning procedures codify the process for requesting a of video programming vendors by standstill that a complainant could request, and the of the Fifth Amendment. Commission or Media Bureau could issue, today multichannel video programming distributors (‘‘MVPDs’’) intended to F. Adequate Notice without the new procedures adopted herein. See Comcast July 25 2011 Ex Parte Letter at 7; supra benefit consumers by promoting 36. We reject arguments that the n.60. Any ‘‘substantive effects’’ resulting from the competition and diversity in the video Program Carriage NPRM failed to filing and consideration of a program carriage standstill request exist today and are not affected programming and video distribution provide the specificity required under by the procedures we adopt herein. See JEM Broad. markets (the ‘‘program carriage’’ the Administrative Procedure Act Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994) rules).74 As required by Congress, these (‘‘APA’’) and that the Commission must (Commission’s ‘‘hard look’’ rules were procedural because they ‘‘did not change the substantive issue another notice before adopting agency procedure for which no notice is required standards by which the Commission evaluates under the APA and, in any event, are a logical final rules. Sections 553(b) and (c) of the license applications’’); Bachow Commc’ns, Inc. v. outgrowth of the request for comment on rules to APA require agencies to give public FCC, 237 F.3d 683 (D.C. Cir. 2001) (Commission protect programmers from retaliation. See Comcast cut-off date for certain amendments to pending notice of a proposed rule making that July 25 2011 Ex Parte Letter at 7 (citing applications was procedural); Neighborhood TV Co. includes ‘‘either the terms or substance Retransmission Consent NPRM, 26 FCC Rcd at v. FCC, 742 F.2d 629 (D.C. Cir. 1984) (Commission 2727–29, paras. 18–19 and Review of the of the proposed rule or a description of interim processing rules were procedural); Kessler Commission’s Program Access Rules and the subjects and issues involved’’ and to v. FCC, 326 F.2d 673 (1963) (same); Ranger v. FCC, Examination of Programming Tying Arrangements, 294 F.2d 240, 243–44 (D.C. Cir. 1961) (Commission give interested parties an opportunity to Notice of Proposed Rulemaking, 22 FCC Rcd 17791, cut-off date for filing applications was procedural). submit comments on the proposal. Such 17868–70, paras. 136–138 (2007)). The procedures we adopt herein do not alter the 70 notice is not, however, required for existence or scope of any substantive rights, but See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601– rules involving agency procedure. The simply codify a pre-existing procedure for obtaining 612, has been amended by the Small Business equitable relief to vindicate those rights. Any Regulatory Enforcement Fairness Act of 1996 standstill procedures and the revised (‘‘SBREFA’’), Public Law 104–121, Title II, 110 Stat. procedural rules adopted herein, alleged burden stemming from a procedural rule is not sufficient to convert the rule into a substantive 857 (1996). including extending the deadline for a one that requires notice and comment. See, e.g., 71 See Leased Commercial Access; Development defendant to file an answer to a James V. Hurson Assocs, Inc. v. Glickman, 229 F.3d of Competition and Diversity in Video Programming complaint, are rules of agency 277, 281 (D.C. Cir. 2000) (‘‘even if the [agency’s] Distribution and Carriage, MB Docket No. 07–42, elimination of [the procedural rule] did impose a Notice of Proposed Rule Making, 22 FCC Rcd procedure for which no notice is 11222, 11231–40, Appendix (2007) (‘‘Program 68 substantial burden * * *, that burden would not required under the APA. When notice convert the rule into a substantive one that triggers Carriage NPRM’’). the APA’s notice-and-comment requirement * * *. 72 See 5 U.S.C. 604. Service Contracts for Provision of Video Services in [A]n otherwise-procedural rule does not become a 73 See Cable Television Consumer Protection and Multiple Dwelling Units and Other Real Estate substantive one, for notice-and-comment purposes, Competition Act of 1992, Public Law 102–385, 106 Developments, Report and Order and Further simply because it imposes a burden on regulated Stat. 1460 (1992) (‘‘1992 Cable Act’’); see also 47 Notice of Proposed Rulemaking, 22 FCC Rcd 20235, parties.’’). U.S.C. 536. 20262, para. 56 (2007) (‘‘MDU Exclusives Order’’), 69 See supra para. 25. The fact that the 74 See Implementation of Sections 12 and 19 of aff’d sub nom. Nat’l Cable & Telecomm. Ass’n v. Commission may have been more explicit in the Cable Television Consumer Protection and FCC, 567 F.3d 659 (D.C. Cir. 2009). seeking comment on a standstill process in other Competition Act of 1992, Development of 68 While Comcast claims that the procedures we contexts does not undermine the fact that the Competition and Diversity in Video Programming adopt herein for a program carriage standstill will program carriage standstill procedures are rules of Distribution and Carriage, MM Docket No. 92–265,

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rules allow for the filing of complaints discrimination provision, however, action on program carriage complaints with the Commission alleging that an direct evidence supporting a claim that have discouraged programming vendors MVPD has (i) Required a financial the defendant MVPD discriminated ‘‘on from filing legitimate complaints, the interest in a video programming the basis of affiliation or non-affiliation’’ Commission establishes deadlines for vendor’s program service as a condition is sufficient to establish this element of action by the Media Bureau and for carriage (the ‘‘financial interest’’ a prima facie case but is not required. Administrative Law Judges (‘‘ALJ’’) provision); (ii) coerced a video Because it is unlikely that direct when acting on program carriage programming vendor to provide, or evidence of a discriminatory motive will complaints. Action on program carriage retaliated against a vendor for failing to be available to potential complainants, complaints entails a two-step process: provide, exclusive rights as a condition the Second Report and Order in MB the initial prima facie determination by of carriage (the ‘‘exclusivity’’ provision); Docket No. 07–42 clarifies that a the Media Bureau, followed (if or (iii) unreasonably restrained the complainant can establish this element necessary) by a decision on the merits ability of an unaffiliated video of a prima facie case of a violation of the by an adjudicator (i.e., either the Media programming vendor to compete fairly program carriage discrimination Bureau or an ALJ). For the first step, the by discriminating in video programming provision by providing the following Commission in the Second Report and distribution on the basis of affiliation or circumstantial evidence of Order in MB Docket No. 07–42 directs nonaffiliation of vendors in the discrimination ‘‘on the basis of the Media Bureau to release a decision selection, terms, or conditions for affiliation or non-affiliation’’: (i) The determining whether the complainant carriage (the ‘‘discrimination’’ complainant programming vendor must has established a prima facie case provision). Congress specifically provide evidence that it provides video within 60 calendar days after the directed the Commission to provide for programming that is similarly situated complainant’s reply to the defendant’s ‘‘expedited review’’ of these complaints to video programming provided by a answer is filed (or the date on which the and to provide for appropriate penalties programming vendor affiliated with the reply would be due if none is filed). For and remedies for any violations. defendant MVPD, based on a the second step, the Commission Programming vendors have complained combination of factors, such as genre, imposes different deadlines for a ruling that the Commission’s procedures for ratings, license fee, target audience, on the merits of the complaint addressing program carriage complaints target advertisers, target programming, depending upon whether the have hindered the filing of legitimate and other factors; and (ii) the complaint adjudicator is the Media Bureau or the complaints and have failed to provide must contain evidence that the ALJ. After the Media Bureau concludes for the expedited review envisioned by defendant MVPD has treated the video that the complaint contains sufficient Congress. In the Second Report and programming provided by the evidence to establish a prima facie case, Order in MB Docket No. 07–42, the complainant programming vendor the Media Bureau has three options for Commission takes the following initial differently than the similarly situated addressing the merits of the complaint: steps to improve its procedures for video programming provided by the (i) The Media Bureau can rule on the addressing program carriage complaints. programming vendor affiliated with the merits of the complaint based on the 3. First, in response to concerns that defendant MVPD with respect to the programming vendors are uncertain as selection, terms, or conditions for pleadings without discovery; (ii) if the to what evidence must be provided in carriage. In addition, regardless of Media Bureau determines that the a complaint to establish a prima facie whether the complainant relies on record is not sufficient to resolve the case of a program carriage violation, the direct or circumstantial evidence of complaint, the Media Bureau may Commission codifies in its rules the discrimination ‘‘on the basis of outline procedures for discovery before evidence required to establish a prima affiliation or non-affiliation,’’ the proceeding to rule on the merits of the facie case.75 A prima facie finding complaint must also contain evidence complaint; or (iii) if the Media Bureau means that the complainant has that the defendant MVPD’s conduct has determines that disposition of the provided sufficient evidence in its the effect of unreasonably restraining complaint or discrete issues raised in complaint, without the Media Bureau the ability of the complainant the complaint requires resolution of having considered any evidence to the programming vendor to compete fairly. factual disputes or other extensive contrary, to proceed to a ruling on the 4. Second, having established specific discovery in an adjudicatory merits. The Second Report and Order in evidentiary requirements for what the proceeding, the Media Bureau will refer MB Docket No. 07–42 explains that, in complainant must provide in its the proceeding or discrete issues arising complaints alleging a violation of the complaint to establish a prima facie case in the proceeding for an adjudicatory exclusivity or financial interest of a program carriage violation, the hearing before an ALJ. The Commission provisions, the complaint must contain Second Report and Order provides the in the Second Report and Order in MB direct evidence (either documentary or defendant with additional time to Docket No. 07–42 establishes the testimonial) supporting the facts answer the complaint in order to following deadlines for the adjudicator’s underlying the claim. For complaints develop a full, case-specific response, decision on the merits. For complaints alleging a violation of the with supporting evidence, to the that the Media Bureau decides on the evidence put forth by the complainant. merits based on the pleadings without Second Report and Order, 9 FCC Rcd 2642 (1993) Specifically, while the Commission’s discovery, the Media Bureau must (‘‘1993 Program Carriage Order’’); see also current rule provides that an MVPD release a decision within 60 calendar Implementation of the Cable Television Consumer served with a program carriage days after its prima facie determination. Protection And Competition Act of 1992, For complaints that the Media Bureau Development of Competition and Diversity in Video complaint shall answer the complaint Programming Distribution and Carriage, MM within 30 days of service, the Second decides on the merits after discovery, Docket No. 92–265, Memorandum Opinion and Report and Order amends this rule to the Media Bureau must release a Order, 9 FCC Rcd 4415 (1994) (‘‘1994 Program provide an MVPD with 60 days to decision within 150 calendar days after Carriage Order’’). The Commission’s program answer the complaint. its prima facie determination. For carriage rules are set forth at 47 CFR 76.1300— 76.1302. 5. Third, in response to concerns that complaints referred to an ALJ for a 75 See Second Report and Order in MB Docket the unpredictable and sometimes decision on the merits, the ALJ must No. 07–42 at paras. 9–17. lengthy time frames for Commission release an initial decision within 240

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calendar days after one of the parties will not substantially harm other operating and/or providing access to informs the Chief ALJ that it elects not interested parties; and (iv) the public transmission facilities and infrastructure to pursue Alternative Dispute interest favors grant of a stay. The that they own and/or lease for the Resolution (‘‘ADR’’) or, if the parties defendant will have ten calendar days transmission of voice, data, text, sound, have mutually elected to pursue ADR, after service to file an answer to the and video using wired within 240 calendar days after the petition for a standstill order. If the telecommunications networks. parties inform the Chief ALJ that they Media Bureau grants the temporary Transmission facilities may be based on have failed to resolve their dispute standstill, the adjudicator ruling on the a single technology or a combination of through ADR. In adopting this deadline merits of the complaint (i.e., either the technologies. Establishments in this for program carriage complaints referred Media Bureau or an ALJ) will apply the industry use the wired to an ALJ, the Second Report and Order terms of the new agreement between the telecommunications network facilities in MB Docket No. 07–42 also adopts parties, if any, as of the expiration date that they operate to provide a variety of revised procedural deadlines applicable of the previous agreement. services, such as wired telephony to adjudicatory hearings involving services, including VoIP services; wired B. Summary of Significant Issues Raised program carriage complaints. The (cable) audio and video programming by Public Comments in Response to the deadlines for the Media Bureau or an distribution; and wired broadband IRFA ALJ to reach a decision may be tolled Internet services. By exception, only under the following circumstances: 7. There were no comments filed establishments providing satellite (i) If the parties jointly request tolling in specifically in response to the IRFA. television distribution services using order to pursue settlement discussions C. Description and Estimate of the facilities and infrastructure that they or ADR or for any other reason that the Number of Small Entities to Which the operate are included in this 80 parties mutually agree justifies tolling; Proposed Rules Will Apply industry.’’ The SBA has developed a or (ii) if complying with the deadline small business size standard for would violate the due process rights of 8. The RFA directs agencies to wireline firms within the broad a party or would be inconsistent with provide a description of and, where economic census category, ‘‘Wired fundamental fairness. In addition, in feasible, an estimate of the number of Telecommunications Carriers.’’ 81 Under extraordinary situations, the ALJ may small entities that may be affected by this category, the SBA deems a wireline 76 toll the deadline for reaching a decision the proposed rules, if adopted. The business to be small if it has 1,500 or due to a lack of adjudicatory resources RFA generally defines the term ‘‘small fewer employees.82 Census Bureau data available at the time in the Office of entity’’ as having the same meaning as for 2007, which now supersede data Administrative Law Judges. the terms ‘‘small business,’’ ‘‘small from the 2002 Census, show that there organization,’’ and ‘‘small governmental were 3,188 firms in this category that 6. Fourth, in response to concerns that 77 jurisdiction.’’ In addition, the term operated for the entire year. Of this MVPDs have the ability to retaliate ‘‘small business’’ has the same meaning against a programming vendor that files total, 3,144 had employment of 999 or as the term ‘‘small business concern’’ fewer, and 44 firms had employment of a program carriage complaint by ceasing under the Small Business Act.78 A small carriage of the programming vendor’s 1,000 employees or more. Thus under business concern is one which: (1) Is this category and the associated small video programming, the Commission in independently owned and operated; (2) the Second Report and Order in MB business size standard, the majority of is not dominant in its field of operation; these firms can be considered small.83 Docket No. 07–42 establishes and (3) satisfies any additional criteria procedures for the Media Bureau’s 10. Cable Television Distribution established by the SBA.79 Below, we Services. Since 2007, these services consideration of requests for a provide a description of such small temporary standstill of the price, terms, have been defined within the broad entities, as well as an estimate of the economic census category of Wired and other conditions of an existing number of such small entities, where programming contract by a program Telecommunications Carriers; that feasible. category is defined above. The SBA has carriage complainant seeking renewal of 9. Wired Telecommunications such a contract. Pursuant to these developed a small business size Carriers. The 2007 North American standard for this category, which is: All procedures, a program carriage Industry Classification System complainant seeking renewal of an such firms having 1,500 or fewer (‘‘NAICS’’) defines ‘‘Wired employees.84 Census Bureau data for existing programming contract may Telecommunications Carriers’’ as submit along with its complaint a 2007, which now supersede data from follows: ‘‘This industry comprises the 2002 Census, show that there were petition for a temporary standstill of its establishments primarily engaged in programming contract pending 3,188 firms in this category that resolution of the complaint. The operated for the entire year. Of this 76 5 U.S.C. 603(b)(3). total, 3,144 had employment of 999 or Commission encourages complainants 77 5 U.S.C. 601(6). fewer, and 44 firms had had to file the petition and complaint 78 5 U.S.C. 601(3) (incorporating by reference the sufficiently in advance of the expiration definition of ‘‘small business concern’’ in 15 U.S.C. employment of 1,000 employees or of the existing contract, and in no case 632). Pursuant to 5 U.S.C. 601(3), the statutory more. Thus under this category and the definition of a small business applies ‘‘unless an associated small business size standard, later than 30 days prior to such agency, after consultation with the Office of expiration, to provide the Media Bureau Advocacy of the Small Business Administration 80 and after opportunity for public comment, U.S. Census Bureau, 2007 NAICS Definitions, with sufficient time to act prior to ‘‘517110 Wired Telecommunications Carriers’’; expiration. In its petition, the establishes one or more definitions of such term which are appropriate to the activities of the agency http://www.census.gov/naics/2007/def/ complainant must demonstrate how and publishes such definition(s) in the Federal ND517110.HTM#N517110. grant of the standstill will meet the Register.’’ 5 U.S.C. 601(3). 81 13 CFR 121.201, 2007 NAICS code 517110. following four criteria: (i) The 79 15 U.S.C. 632. Application of the statutory 82 See id. complainant is likely to prevail on the criteria of dominance in its field of operation and 83 See http://factfinder.census.gov/servlet/ independence are sometimes difficult to apply in IBQTable?_bm=y&-fds_name=EC0700A1&- merits of its complaint; (ii) the the context of broadcast television. Accordingly, the geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&- complainant will suffer irreparable Commission’s statistical account of television _lang=en. harm absent a stay; (iii) grant of a stay stations may be over-inclusive. 84 13 CFR 121.201, 2007 NAICS code 517110.

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the majority of these firms can be annual revenues exceed $250 million,93 requires significant capital, we believe it considered small.85 and therefore we are unable to estimate is unlikely that a small entity as defined 11. Cable Companies and Systems. more accurately the number of cable by the SBA would have the financial The Commission has also developed its system operators that would qualify as wherewithal to become a DBS service own small business size standards, for small under this size standard. provider. the purpose of cable rate regulation. 13. Direct Broadcast Satellite (‘‘DBS’’) 14. Satellite Master Antenna Under the Commission’s rules, a ‘‘small Service. DBS service is a nationally Television (SMATV) Systems, also cable company’’ is one serving 400,000 distributed subscription service that known as Private Cable Operators or fewer subscribers nationwide.86 delivers video and audio programming (PCOs). SMATV systems or PCOs are Industry data indicate that all but ten via satellite to a small parabolic ‘‘dish’’ video distribution facilities that use cable operators nationwide are small antenna at the subscriber’s location. closed transmission paths without using under this size standard.87 In addition, DBS, by exception, is now included in any public right-of-way. They acquire under the Commission’s rules, a ‘‘small the SBA’s broad economic census video programming and distribute it via system’’ is a cable system serving 15,000 category, ‘‘Wired Telecommunications terrestrial wiring in urban and suburban or fewer subscribers.88 Industry data Carriers,’’ 94 which was developed for multiple dwelling units such as indicate that, of 6,101 systems small wireline firms. Under this apartments and condominiums, and nationwide, 4,410 systems have under category, the SBA deems a wireline commercial multiple tenant units such 10,000 subscribers, and an additional business to be small if it has 1,500 or as hotels and office buildings. SMATV 95 258 systems have 10,000–19,999 fewer employees. Census Bureau data systems or PCOs are now included in 89 subscribers. Thus, under this for 2007, which now supersede data the SBA’s broad economic census standard, most cable systems are small. from the 2002 Census, show that there category, ‘‘Wired Telecommunications 12. Cable System Operators. The were 3,188 firms in this category that Carriers,’’ 100 which was developed for Communications Act of 1934, as operated for the entire year. Of this small wireline firms. Under this amended, also contains a size standard total, 3,144 had employment of 999 or category, the SBA deems a wireline for small cable system operators, which fewer, and 44 firms had had business to be small if it has 1,500 or is ‘‘a cable operator that, directly or employment of 1,000 employees or fewer employees.101 Census Bureau data through an affiliate, serves in the more. Thus under this category and the for 2007, which now supersede data aggregate fewer than 1 percent of all associated small business size standard, from the 2002 Census, show that there subscribers in the United States and is the majority of these firms can be were 3,188 firms in this category that not affiliated with any entity or entities 96 considered small. Currently, only two operated for the entire year. Of this whose gross annual revenues in the entities provide DBS service, which total, 3,144 had employment of 999 or aggregate exceed $250,000,000.’’ 90 The requires a great investment of capital for fewer, and 44 firms had had Commission has determined that an operation: DIRECTV and EchoStar employment of 1,000 employees or operator serving fewer than 677,000 Communications Corporation more. Thus, under this category and the subscribers shall be deemed a small (‘‘EchoStar’’) (marketed as the DISH associated small business size standard, operator if its annual revenues, when Network).97 Each currently offers the majority of these firms can be combined with the total annual subscription services. DIRECTV 98 and considered small.102 revenues of all its affiliates, do not EchoStar 99 each report annual revenues 15. Home Satellite Dish (‘‘HSD’’) exceed $250 million in the aggregate.91 that are in excess of the threshold for a Industry data indicate that all but nine small business. Because DBS service Service. HSD or the large dish segment cable operators nationwide are small of the satellite industry is the original satellite-to-home service offered to under this subscriber size standard.92 93 The Commission does receive such information consumers, and involves the home We note that the Commission neither on a case-by-case basis if a cable operator appeals a local franchise authority’s finding that the reception of signals transmitted by requests nor collects information on operator does not qualify as a small cable operator satellites operating generally in the C- whether cable system operators are pursuant to 76.901(f) of the Commission’s rules. See band frequency. Unlike DBS, which affiliated with entities whose gross 47 CFR 76.901(f). 94 See 13 CFR 121.201, 2007 NAICS code 517110. uses small dishes, HSD antennas are The 2007 NAICS definition of the category of 85 See http://factfinder.census.gov/servlet/ between four and eight feet in diameter ‘‘Wired Telecommunications Carriers’’ is in IBQTable?_bm=y&-fds_name=EC0700A1&- and can receive a wide range of paragraph 8, above. geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&- 95 unscrambled (free) programming and _lang=en. 13 CFR 121.201, 2007 NAICS code 517110. 96 scrambled programming purchased from 86 See http://factfinder.census.gov/servlet/ 47 CFR 76.901(e). The Commission determined _ _ program packagers that are licensed to that this size standard equates approximately to a IBQTable? bm=y&-fds name=EC0700A1&- geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&- facilitate subscribers’ receipt of video size standard of $100 million or less in annual _ revenues. Implementation of Sections of the 1992 lang=en. programming. Because HSD provides 97 Cable Act: Rate Regulation, Sixth Report and Order See Annual Assessment of the Status of subscription services, HSD falls within Competition in the Market for the Delivery of Video and Eleventh Order on Reconsideration, 10 FCC the SBA-recognized definition of Wired Rcd 7393, 7408 (1995). Programming, Thirteenth Annual Report, 24 FCC Rcd 542, 580, para. 74 (2009) (‘‘13th Annual 103 87 See Broadcasting & Cable Yearbook 2010 at C– Telecommunications Carriers. The Report’’). We note that, in 2007, EchoStar 2 (2009) (data current as of Dec. 2008). SBA has developed a small business purchased the licenses of Dominion Video Satellite, 88 47 CFR 76.901(c). Inc. (‘‘Dominion’’) (marketed as Sky Angel). See size standard for this category, which is: 89 See Television & Cable Factbook 2009 at F–2 Public Notice, ‘‘Policy Branch Information; Actions all such firms having 1,500 or fewer (2009) (data current as of Oct. 2008). The data do Taken,’’ Report No. SAT–00474, 22 FCC Rcd 17776 employees.104 Census Bureau data for not include 957 systems for which classifying data (IB 2007). were not available. 98 As of June 2006, DIRECTV is the largest DBS 100 90 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & nn. operator and the second largest MVPD, serving an 13 CFR 121.201, 2007 NAICS code 517110. 1–3. estimated 16.20% of MVPD subscribers nationwide. 101 See id. 91 47 CFR 76.901(f); see FCC Announces New See 13th Annual Report, 24 FCC Rcd at 687, Table 102 See http://factfinder.census.gov/servlet/ Subscriber Count for the Definition of Small Cable B–3. IBQTable?_bm=y&-fds_name=EC0700A1&- _ _ _ Operator, Public Notice, 16 FCC Rcd 2225 (Cable 99 As of June 2006, DISH Network is the second geo id=&- skip=600&-ds name=EC0751SSSZ5&- _ Services Bureau 2001). largest DBS operator and the third largest MVPD, lang=en. 92 See Broadcasting & Cable Yearbook 2010 at C– serving an estimated 13.01% of MVPD subscribers 103 13 CFR 121.201, 2007 NAICS code 517110. 2 (2009) (data current as of Dec. 2008). nationwide. Id. 104 See id.

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2007, which now supersede data from approximately 440 BRS licensees that voice, data, text, sound, and video using the 2002 Census, show that there were are defined as small businesses under wired telecommunications networks. 3,188 firms in this category that either the SBA or the Commission’s Transmission facilities may be based on operated for the entire year. Of this rules. In 2009, the Commission a single technology or a combination of total, 3,144 had employment of 999 or conducted Auction 86, the sale of 78 technologies.’’ 113 The SBA has fewer, and 44 firms had had licenses in the BRS areas.109 The developed a small business size employment of 1,000 employees or Commission offered three levels of standard for this category, which is: all more. Thus, under this category and the bidding credits: (i) A bidder with such firms having 1,500 or fewer associated small business size standard, attributed average annual gross revenues employees.114 Census Bureau data for the majority of these firms can be that exceed $15 million and do not 2007, which now supersede data from considered small.105 exceed $40 million for the preceding the 2002 Census, show that there were 16. Broadband Radio Service and three years (small business) received a 3,188 firms in this category that Educational Broadband Service. 15 percent discount on its winning bid; operated for the entire year. Of this Broadband Radio Service systems, (ii) a bidder with attributed average total, 3,144 had employment of 999 or previously referred to as Multipoint annual gross revenues that exceed $3 fewer, and 44 firms had employment of Distribution Service (MDS) and million and do not exceed $15 million 1,000 employees or more. Thus, under Multichannel Multipoint Distribution for the preceding three years (very small this category and the associated small Service (MMDS) systems, and ‘‘wireless business) received a 25 percent discount business size standard, the majority of cable,’’ transmit video programming to on its winning bid; and (iii) a bidder these firms can be considered small.115 subscribers and provide two-way high with attributed average annual gross 18. Fixed Microwave Services. speed data operations using the revenues that do not exceed $3 million Microwave services include common microwave frequencies of the for the preceding three years carrier,116 private-operational fixed,117 Broadband Radio Service (BRS) and (entrepreneur) received a 35 percent and broadcast auxiliary radio Educational Broadband Service (EBS) discount on its winning bid.110 Auction services.118 They also include the Local (previously referred to as the 86 concluded in 2009 with the sale of Multipoint Distribution Service Instructional Television Fixed Service 61 licenses.111 Of the ten winning (LMDS),119 the Digital Electronic (ITFS)).106 In connection with the 1996 bidders, two bidders that claimed small Message Service (DEMS),120 and the 24 BRS auction, the Commission business status won 4 licenses; one GHz Service,121 where licensees can established a small business size bidder that claimed very small business choose between common carrier and standard as an entity that had annual status won three licenses; and two non-common carrier status.122 At average gross revenues of no more than bidders that claimed entrepreneur status present, there are approximately 31,428 $40 million in the previous three won six licenses. common carrier fixed licensees and calendar years.107 The BRS auctions 17. In addition, the SBA’s Cable 79,732 private operational-fixed resulted in 67 successful bidders Television Distribution Services small licensees and broadcast auxiliary radio obtaining licensing opportunities for business size standard is applicable to licensees in the microwave services. 493 Basic Trading Areas (BTAs). Of the EBS. There are presently 2,032 EBS There are approximately 120 LMDS 67 auction winners, 61 met the licensees. All but 100 of these licenses licensees, three DEMS licensees, and definition of a small business. BRS also are held by educational institutions. three 24 GHz licensees. The includes licensees of stations authorized Educational institutions are included in Commission has not yet defined a small prior to the auction. At this time, we this analysis as small entities.112 Thus, business with respect to microwave estimate that of the 61 small business we estimate that at least 1,932 licensees services. For purposes of the IRFA, we BRS auction winners, 48 remain small are small businesses. Since 2007, Cable will use the SBA’s definition applicable business licensees. In addition to the 48 Television Distribution Services have to Wireless Telecommunications small businesses that hold BTA been defined within the broad economic Carriers (except satellite)—i.e., an entity authorizations, there are approximately census category of Wired with no more than 1,500 persons.123 392 incumbent BRS licensees that are Telecommunications Carriers; that considered small entities.108 After category is defined as follows: ‘‘This 113 U.S. Census Bureau, 2007 NAICS Definitions, industry comprises establishments ‘‘517110 Wired Telecommunications Carriers,’’ adding the number of small business (partial definition), http://www.census.gov/naics/ auction licensees to the number of primarily engaged in operating and/or 2007/def/ND517110.HTM#N517110. incumbent licensees not already providing access to transmission 114 13 CFR 121.201, 2007 NAICS code 517110. counted, we find that there are currently facilities and infrastructure that they 115 See http://factfinder.census.gov/servlet/ own and/or lease for the transmission of IBQTable?_bm=y&-fds_name=EC0700A1&- geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_ 105 See http://factfinder.census.gov/servlet/ lang=en. IBQTable?_bm=y&-fds_name=EC0700A1&- 109 Auction of Broadband Radio Service (BRS) 116 See 47 CFR part 101, Subparts C and I. geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&- Licenses, Scheduled for October 27, 2009, Notice 117 _lang=en. and Filing Requirements, Minimum Opening Bids, See 47 CFR part 101, Subparts C and H. 118 106 Amendment of Parts 21 and 74 of the Upfront Payments, and Other Procedures for Auxiliary Microwave Service is governed by Commission’s Rules with Regard to Filing Auction 86, Public Notice, 24 FCC Rcd 8277 (2009). part 74 of Title 47 of the Commission’s rules. See Procedures in the Multipoint Distribution Service 110 Id. at 8296. 47 CFR part 74. Available to licensees of broadcast stations and to broadcast and cable network and in the Instructional Television Fixed Service 111 Auction of Broadband Radio Service Licenses entities, broadcast auxiliary microwave stations are and Implementation of Section 309(j) of the Closes, Winning Bidders Announced for Auction 86, used for relaying broadcast television signals from Communications Act—Competitive Bidding, MM Down Payments Due November 23, 2009, Final the studio to the transmitter, or between two points Docket No. 94–131, PP Docket No. 93–253, Report Payments Due December 8, 2009, Ten-Day Petition such as a main studio and an auxiliary studio. The and Order, 10 FCC Rcd 9589, 9593, para. 7 (1995). to Deny Period, Public Notice, 24 FCC Rcd 13572 service also includes mobile TV pickups, which 107 47 CFR 21.961(b)(1). (2009). relay signals from a remote location back to the 108 112 47 U.S.C. 309(j). Hundreds of stations were The term ‘‘small entity’’ within SBREFA studio. licensed to incumbent MDS licensees prior to applies to small organizations (nonprofits) and to 119 See 47 CFR part 101, subpart L. implementation of section 309(j) of the small governmental jurisdictions (cities, counties, 120 Communications Act of 1934, 47 U.S.C. 309(j). For towns, townships, villages, school districts, and See 47 CFR part 101, subpart G. these pre-auction licenses, the applicable standard special districts with populations of less than 121 See id. is SBA’s small business size standard of 1500 or 50,000). 5 U.S.C. 601(4)–(6). We do not collect 122 See 47 CFR 101.533, 101.1017. fewer employees. annual revenue data on EBS licensees. 123 13 CFR 121.201, 2007 NAICS code 517210.

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Under the present and prior categories, In addition, we note that the incumbent local exchange carriers in the SBA has deemed a wireless business Commission has certified some OVS this present RFA analysis. A ‘‘small to be small if it has 1,500 or fewer operators, with some now providing business’’ under the RFA is one that, employees.124 For the category of service.131 Broadband service providers inter alia, meets the pertinent small Wireless Telecommunications Carriers (‘‘BSPs’’) are currently the only business size standard (e.g., a telephone (except Satellite), Census data for 2007, significant holders of OVS certifications communications business having 1,500 which supersede data contained in the or local OVS franchises.132 The or fewer employees), and ‘‘is not 2002 Census, show that there were Commission does not have financial or dominant in its field of operation.’’ 138 1,383 firms that operated that year.125 employment information regarding the The SBA’s Office of Advocacy contends Of those 1,383, 1,368 had fewer than entities authorized to provide OVS, that, for RFA purposes, small incumbent 100 employees, and 15 firms had more some of which may not yet be local exchange carriers are not dominant than 100 employees. Thus under this operational. Thus, at least some of the in their field of operation because any category and the associated small OVS operators may qualify as small such dominance is not ‘‘national’’ in business size standard, the majority of entities. scope.139 We have therefore included firms can be considered small. We note 20. Cable and Other Subscription small incumbent local exchange carriers that the number of firms does not Programming. The Census Bureau in this RFA analysis, although we necessarily track the number of defines this category as follows: ‘‘This emphasize that this RFA action has no licensees. We estimate that virtually all industry comprises establishments effect on Commission analyses and of the Fixed Microwave licensees primarily engaged in operating studios determinations in other, non-RFA (excluding broadcast auxiliary and facilities for the broadcasting of contexts. licensees) would qualify as small programs on a subscription or fee basis 22. Incumbent Local Exchange entities under the SBA definition. * * *. These establishments produce programming in their own facilities or Carriers (‘‘LECs’’). Neither the 19. Open Video Systems. The open acquire programming from external Commission nor the SBA has developed video system (‘‘OVS’’) framework was sources. The programming material is a small business size standard established in 1996, and is one of four usually delivered to a third party, such specifically for incumbent local statutorily recognized options for the as cable systems or direct-to-home exchange services. The appropriate size provision of video programming satellite systems, for transmission to standard under SBA rules is for the 126 services by local exchange carriers. viewers.’’ 133 The SBA has developed a category Wired Telecommunications The OVS framework provides small business size standard for this Carriers. Under that size standard, such opportunities for the distribution of category, which is: all such firms having a business is small if it has 1,500 or video programming other than through $15 million dollars or less in annual fewer employees.140 Census Bureau data cable systems. Because OVS operators revenues.134 To gauge small business for 2007, which now supersede data 127 provide subscription services, OVS prevalence in the Cable and Other from the 2002 Census, show that there falls within the SBA small business size Subscription Programming industries, were 3,188 firms in this category that standard covering cable services, which the Commission relies on data currently operated for the entire year. Of this is ‘‘Wired Telecommunications available from the U.S. Census for the total, 3,144 had employment of 999 or Carriers.’’ 128 The SBA has developed a year 2007. Census Bureau data for 2007, fewer, and 44 firms had employment of small business size standard for this which now supersede data from the 1,000 employees or more. Thus, under category, which is: all such firms having 2002 Census, show that there were 396 this category and the associated small 1,500 or fewer employees.129 Census firms in this category that operated for business size standard, the majority of Bureau data for 2007, which now the entire year.135 Of that number, 325 these firms can be considered small.141 supersede data from the 2002 Census, operated with annual revenues of 23. Competitive Local Exchange show that there were 3,188 firms in this 136 $9,999,999 or less. Seventy-one (71) Carriers, Competitive Access Providers category that operated for the entire operated with annual revenues of (CAPs), ‘‘Shared-Tenant Service year. Of this total, 3,144 had between $10 million and $100 million Providers,’’ and ‘‘Other Local Service employment of 999 or fewer, and 44 137 or more. Thus, under this category Providers.’’ Neither the Commission nor firms had had employment of 1,000 and associated small business size the SBA has developed a small business employees or more. Thus, under this standard, the majority of firms can be size standard specifically for these category and the associated small considered small. service providers. The appropriate size business size standard, the majority of 21. Small Incumbent Local Exchange standard under SBA rules is for the these firms can be considered small.130 Carriers. We have included small category Wired Telecommunications Carriers. Under that size standard, such 124 See id. The now-superseded, pre-2007 CFR geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&- citations were 13 CFR 121.201, NAICS codes _lang=en. a business is small if it has 1,500 or 517211 and 517212 (referring to the 2002 NAICS). 131 A list of OVS certifications may be found at 125 U.S. Census Bureau, 2007 Economic Census, http://www.fcc.gov/mb/ovs/csovscer.html. 138 15 U.S.C. 632. Sector 51, 2007 NAICS code 517210 (rel. Oct. 20, 132 See 13th Annual Report, 24 FCC Rcd at 606– 139 Letter from Jere W. Glover, Chief Counsel for 2009), http://factfinder.census.gov/servlet/ 07, para. 135. BSPs are newer firms that are _ _ _ Advocacy, SBA, to William E. Kennard, Chairman, IBQTable? bm=y&-geo id=&-fds building state-of-the-art, facilities-based networks to FCC (May 27, 1999). The Small Business Act name=EC0700A1&-_skip=700&-ds_ provide video, voice, and data services over a single _ contains a definition of ‘‘small-business concern,’’ name=EC0751SSSZ5&- lang=en. network. which the RFA incorporates into its own definition 126 47 U.S.C. 571(a)(3)–(4). See 13th Annual 133 U.S. Census Bureau, 2007 NAICS Definitions, of ‘‘small business.’’ See 15 U.S.C. 632(a) (Small Report, 24 FCC Rcd at 606, para. 135. ‘‘515210 Cable and Other Subscription Business Act); 5 U.S.C. 601(3) (RFA). SBA 127 See 47 U.S.C. 573. Programming’’; http://www.census.gov/naics/2007/ regulations interpret ‘‘small business concern’’ to 128 U.S. Census Bureau, 2007 NAICS Definitions, def/ND515210.HTM#N515210. include the concept of dominance on a national ‘‘517110 Wired Telecommunications Carriers’’; 134 13 CFR 121.201, 2007 NAICS code 515210. basis. See 13 CFR 121.102(b). http://www.census.gov/naics/2007/def/ND517110. 135 http://factfinder.census.gov/servlet/ 140 13 CFR 121.201, 2007 NAICS code 517110. HTM#N517110. IBQTable?_bm=y&-geo_id=&-_skip=700&-ds_ 141 See http://factfinder.census.gov/servlet/ _ 129 13 CFR 121.201, 2007 NAICS code 517110. name=EC0751SSSZ4&- lang=en. IBQTable?_bm=y&-fds_name=EC0700A1&- 130 See http://factfinder.census.gov/servlet/ 136 Id. geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_ IBQTable?_bm=y&-fds_name=EC0700A1&- 137 Id. lang=en.

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fewer employees.142 Census Bureau data number of licensed noncommercial gauge small business prevalence in the for 2007, which now supersede data educational (NCE) television stations to Motion Picture and Video Production from the 2002 Census, show that there be 391.148 We note, however, that, in industries, the Commission relies on were 3,188 firms in this category that assessing whether a business concern data currently available from the U.S. operated for the entire year. Of this qualifies as small under the above Census for the year 2007. Census Bureau total, 3,144 had employment of 999 or definition, business (control) data for 2007, which now supersede fewer, and 44 firms had had affiliations 149 must be included. Our data from the 2002 Census, show that employment of 1,000 employees or estimate, therefore, likely overstates the there were 9,095 firms in this category more. Thus, under this category and the number of small entities that might be that operated for the entire year.152 Of associated small business size standard, affected by our action, because the these, 8995 had annual receipts of the majority of these firms can be revenue figure on which it is based does 143 $24,999,999 or less, and 100 has annual considered small. Consequently, the not include or aggregate revenues from receipts ranging from not less that Commission estimates that most affiliated companies. The Commission $25,000,000 to $100,000,000 or more.153 providers of competitive local exchange does not compile and otherwise does Thus, under this category and service, competitive access providers, not have access to information on the ‘‘Shared-Tenant Service Providers,’’ and revenue of NCE stations that would associated small business size standard, ‘‘Other Local Service Providers’’ are permit it to determine how many such the majority of firms can be considered small entities. stations would qualify as small entities. small. 24. Television Broadcasting. The SBA 25. In addition, an element of the 27. Motion Picture and Video defines a television broadcasting station definition of ‘‘small business’’ is that the Distribution. The Census Bureau defines as a small business if such station has entity not be dominant in its field of this category as follows: ‘‘This industry no more than $14.0 million in annual operation. We are unable at this time to comprises establishments primarily receipts.144 Business concerns included define or quantify the criteria that engaged in acquiring distribution rights in this industry are those ‘‘primarily would establish whether a specific and distributing film and video engaged in broadcasting images together television station is dominant in its field productions to motion picture theaters, with sound.’’ 145 The Commission has of operation. Accordingly, the estimate television networks and stations, and estimated the number of licensed of small businesses to which rules may exhibitors.’’ 154 We note that firms in commercial television stations to be apply do not exclude any television this category may be engaged in various 146 1,390. According to Commission staff station from the definition of a small industries, including cable review of the BIA/Kelsey, MAPro business on this basis and are therefore programming. Specific figures are not Television Database (‘‘BIA’’) as of April over-inclusive to that extent. Also, as available regarding how many of these 7, 2010, about 1,015 of an estimated noted, an additional element of the firms produce and/or distribute 1,380 commercial television stations 147 definition of ‘‘small business’’ is that the programming for cable television. The (or about 74 percent) have revenues of entity must be independently owned $14 million or less and, thus, qualify as and operated. We note that it is difficult SBA has developed a small business small entities under the SBA definition. at times to assess these criteria in the size standard for this category, which is: The Commission has estimated the context of media entities and our all such firms having $29.5 million 155 estimates of small businesses to which dollars or less in annual revenues. To 142 13 CFR 121.201, 2007 NAICS code 517110. they apply may be over-inclusive to this gauge small business prevalence in the 143 See http://factfinder.census.gov/servlet/ extent. Motion Picture and Video Distribution IBQTable?_bm=y&-fds_name=EC0700A1&- industries, the Commission relies on geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&-_ 26. Motion Picture and Video lang=en. Production. The Census Bureau defines data currently available from the U.S. 144 See 13 CFR 121.201, 2007 NAICS Code this category as follows: ‘‘This industry Census for the year 2007. Census Bureau 515120. comprises establishments primarily data for 2007, which now supersede 145 U.S. Census Bureau, 2007 NAICS Definitions, engaged in producing, or producing and data from the 2002 Census, show that ‘‘515120 Television Broadcasting’’; http://www. there were 450 firms in this category census.gov/naics/2007/def/ND515120.HTM. This distributing motion pictures, videos, 156 category description continues, ‘‘These television programs, or television that operated for the entire year. Of establishments operate television broadcasting commercials.’’ 150 We note that firms in these, 434 had annual receipts of studios and facilities for the programming and this category may be engaged in various $24,999,999 or less, and 16 had annual transmission of programs to the public. These establishments also produce or transmit visual industries, including cable receipts ranging from not less that programming to affiliated broadcast television programming. Specific figures are not $25,000,000 to $100,000,000 or more.157 stations, which in turn broadcast the programs to available regarding how many of these Thus, under this category and the public on a predetermined schedule. firms produce and/or distribute associated small business size standard, Programming may originate in their own studios, from an affiliated network, or from external programming for cable television. The the majority of firms can be considered sources.’’ Separate census categories pertain to SBA has developed a small business small. businesses primarily engaged in producing size standard for this category, which is: programming. See Motion Picture and Video all such firms having $29.5 million 152 See http://factfinder.census.gov/servlet/ Production, NAICS code 512110; Motion Picture 151 _ _ _ and Video Distribution, NAICS Code 512120; dollars or less in annual revenues. To IBQTable? bm=y&-geo id=&-fds name= EC0700A1&-_skip=200&-ds_name=EC0751SSSZ5&- Teleproduction and Other Post-Production _ Services, NAICS Code 512191; and Other Motion 148 See Broadcast Station Totals, supra, note 146. lang=en. Picture and Video Industries, NAICS Code 512199. 149 ‘‘[Business concerns] are affiliates of each 153 Id. 146 See News Release, ‘‘Broadcast Station Totals other when one concern controls or has the power 154 See U.S. Census Bureau, 2007 NAICS as of December 31, 2010,’’ 2011 WL 484756 (dated to control the other or a third party or parties Definitions, ‘‘51212 Motion Picture and Video Feb. 11, 2011) (‘‘Broadcast Station Totals’’); also controls or has to power to control both.’’ 13 CFR Distribution’’; http://www.census.gov/naics/2007/ available at http://www.fcc.gov/Daily_Releases/ 121.103(a)(1). def/NDEF512.HTM#N51212. Daily_Business/2011/db0211/DOC-304594A1.pdf. 150 U.S. Census Bureau, 2007 NAICS Definitions, 155 13 CFR 121.201, 2007 NAICS code 512120. 147 We recognize that this total differs slightly ‘‘51211 Motion Picture and Video Production’’; 156 http://factfinder.census.gov/servlet/ from that contained in Broadcast Station Totals, http://www.census.gov/naics/2007/def/NDEF512. IBQTable?_bm=y&-geo_id=&-_skip=200&-ds_ supra, note 105; however, we are using BIA’s HTM#N51211. name=EC0751SSSZ4&-_lang=en. estimate for purposes of this revenue comparison. 151 13 CFR 121.201, 2007 NAICS code 512110. 157 Id.

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D. Description of Projected Reporting, for small entities.162 The Program 2011, except for §§ 1.221(h), 1.229(b)(3), Recordkeeping, and Other Compliance Carriage NPRM invited comment on 1.229(b)(4), 1.248(a), 1.248(b), 76.7(g)(2), Requirements issues that had the potential to have 76.1302(c)(1), 76.1302(d), 76.1302 (e)(1), significant economic impact on some and 76.1302(k) which contain new or 28. The rules adopted in the Second 163 Report and Order in MB Docket No. 07– small entities. modified information collection 30. As discussed in section A, the 42 will impose additional reporting, requirements that require approval by Second Report and Order in MB Docket recordkeeping, and compliance the Office of Management and Budget No. 07–42 is intended to improve the requirements on video programming (‘‘OMB’’) under the Paperwork Commission’s procedures for addressing vendors and MVPDs. First, the Second Reduction Act (PRA) and will become program carriage complaints. By effective after the Commission publishes Report and Order in MB Docket No. 07– clarifying the evidence a complainant 42 clarifies what evidence a a notice in the Federal Register must provide in its complaint to announcing such approval and the complainant must provide in its establish a prima facie case of a program program carriage complaint in order to relevant effective date. carriage violation, providing defendants 35. It is further ordered that the establish a prima facie case of a program with additional time to answer a carriage violation.158 Second, to enable Commission’s Consumer and complaint, establishing deadlines for Governmental Affairs Bureau, Reference the defendant to develop a full, case- action on program carriage complaints, specific response to the evidence put Information Center, Shall Send a copy and establishing procedures for of this Second Report and Order in MB forth by the complainant, with requesting a standstill of an existing supporting evidence, the Second Report Docket No. 07–42, including the Final programming contract, the decision Regulatory Flexibility Analysis, to the and Order in MB Docket No. 07–42 confers benefits upon both video provides the defendant with 60 days Chief Counsel for Advocacy of the Small programming vendors and MVPDs, Business Administration. (rather than the current 30 days) to including those that are smaller entities, 159 36. It is further ordered that the answer the complaint. Third, in as well as MVPD subscribers. Thus, the adopting a deadline for an ALJ to issue Commission Shall Send a copy of this decision benefits smaller entities as well Second Report and Order in MB Docket a decision on the merits of a program as larger entities. For this reason, an carriage complaint referred by Media No. 07–42 in a report to be sent to analysis of alternatives to the proposed Congress and the Government Bureau, the Second Report and Order in rules is unnecessary. MB Docket No. 07–42 adopts revised Accountability Office pursuant to the procedural deadlines applicable to F. Report to Congress Congressional Review Act, see 5 U.S.C. adjudicatory hearings involving 31. The Commission will send a copy 801(a)(1)(A). program carriage complaints.160 Fourth, of the Second Report and Order in MB List of Subjects the Second Report and Order in MB Docket No. 07–42, including this FRFA, Docket No. 07–42 establishes in a report to be sent to Congress and 47 CFR Part 0 procedures for the Commission’s the Government Accountability Office Organization and functions consideration of requests for a pursuant to the Congressional Review (Government agencies). temporary standstill of the price, terms, Act.164 In addition, the Commission will and other conditions of an existing send a copy of the Second Report and 47 CFR Part 1 programming contract by a program Order in MB Docket No. 07–42, Administrative practice and carriage complainant seeking renewal of including this FRFA, to the Chief procedure, claims, Investigations, such a contract.161 Counsel for Advocacy of the SBA. A Lawyers, Telecommunications. copy of the Second Report and Order in E. Steps Taken To Minimize Significant MB Docket No. 07–42 and FRFA (or 47 CFR Part 76 Economic Impact on Small Entities, and summaries thereof) will also be Administrative practice and Significant Alternatives Considered published in the Federal Register.165 procedure, Cable television, Equal 29. The RFA requires an agency to V. Ordering Clauses employment opportunity, Political describe any significant alternatives that candidates, and Reporting and it has considered in reaching its 32. It is ordered, pursuant to the recordkeeping requirements. authority found in sections 4(i), 4(j), proposed approach, which may include Federal Communications Commission. the following four alternatives (among 303(r), and 616 of the Communications Marlene H. Dortch, others): (1) The establishment of Act of 1934, as amended, 47 U.S.C. differing compliance or reporting 154(i), 154(j), 303(r), and 536, the Secretary. requirements or timetables that take into Second Report and Order in MB Docket Final Rules account the resources available to small No. 07–42 Is Adopted. For the reasons discussed in the entities; (2) the clarification, 33. It is further ordered that, pursuant preamble, the Federal Communications consolidation, or simplification of to the authority found in sections 4(i), Commission amends 47 CFR Parts 0, 1, compliance or reporting requirements 4(j), 303(r), and 616 of the and 76 as follows: under the rule for small entities; (3) the Communications Act of 1934, as use of performance, rather than design, amended, 47 U.S.C. 154(i), 154(j), 303(r), and 536, the Commission’s rules PART 0—COMMISSION standards; and (4) an exemption from ORGANIZATION coverage of the rule, or any part thereof, Are Hereby Amended as set forth in the Rules Changes below. ■ 34. It is further ordered that the rules 1. The authority citation for Part 0 158 See Second Report and Order in MB Docket continues to read as follows: No. 07–42 at paras. 9–17. adopted herein are effective October 31, 159 See Second Report and Order in MB Docket Authority: Sec. 5, 48 Stat. 1068, as No. 07–42 at para. 18. 162 5 U.S.C. 603(c)(1)–(c)(4). amended; 47 U.S.C. 155, 225, unless 160 See Second Report and Order in MB Docket 163 See Program Carriage NPRM, 22 FCC Rcd at otherwise noted. No. 07–42 at paras. 19–24. 11231–11240, Appendix. ■ 161 See Second Report and Order in MB Docket 164 See 5 U.S.C. 801(a)(1)(A). 2. Section 0.341 is amended by adding No. 07–42 at paras. 25–30. 165 See 5 U.S.C. 604(b). paragraph (f) to read as follows:

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§ 0.341 Authority of administrative law mutually elected to pursue alternative Except as provided in paragraph (c) of judge. dispute resolution pursuant to this section, the motion will be granted * * * * * § 76.7(g)(2) of this chapter, within five only if good cause is shown for the (f)(1) For program carriage complaints calendar days after the parties inform delay in filing. Motions for filed pursuant to § 76.1302 of this the Chief Administrative Law Judge that modifications of issues which are based chapter that the Chief, Media Bureau they have failed to resolve their dispute on new facts or newly discovered facts refers to an administrative law judge for through alternative dispute resolution. shall be filed within 15 days after such an initial decision, the presiding The written appearance shall state that facts are discovered by the moving administrative law judge shall release the party will appear on the date fixed party. an initial decision in compliance with for hearing and present evidence on the * * * * * one of the following deadlines: issues specified in the hearing ■ 6. Section 1.248 is amended by (i) 240 calendar days after a party designation order. revising paragraphs (a) and (b)(1) to read informs the Chief Administrative Law (2) If the complainant fails to file a as follows: Judge that it elects not to pursue written appearance by this deadline, or alternative dispute resolution as set fails to file prior to the deadline either § 1.248 Prehearing conferences; hearing forth in § 76.7(g)(2) of this chapter; or a petition to dismiss the proceeding conferences. (ii) If the parties have mutually without prejudice or a petition to (a) The Commission, on its own elected to pursue alternative dispute accept, for good cause shown, a written initiative or at the request of any party, resolution pursuant to § 76.7(g)(2) of appearance beyond such deadline, the may direct the parties or their attorneys this chapter, within 240 calendar days Chief Administrative Law Judge shall to appear at a specified time and place after the parties inform the Chief dismiss the complaint with prejudice for a conference prior to a hearing, or to Administrative Law Judge that they for failure to prosecute. submit suggestions in writing, for the have failed to resolve their dispute (3) If the defendant fails to file a purpose of considering, among other through alternative dispute resolution. written appearance by this deadline, or things, the matters set forth in paragraph (2) The presiding administrative law fails to file prior to this deadline a (c) of this section. The initial prehearing judge may toll these deadlines under the petition to accept, for good cause conference shall be scheduled 30 days following circumstances: shown, a written appearance beyond after the effective date of the order (i) If the complainant and defendant such deadline, its opportunity to designating a case for hearing, unless jointly request that the presiding present evidence at hearing will be good cause is shown for scheduling administrative law judge toll these deemed to have been waived. If the such conference at a later date, except deadlines in order to pursue settlement hearing is so waived, the Chief that for program carriage complaints discussions or alternative dispute Administrative Law Judge shall filed pursuant to § 76.1302 of this resolution or for any other reason that expeditiously terminate the proceeding chapter that the Chief, Media Bureau the complainant and defendant and certify to the Commission the refers to an administrative law judge for mutually agree justifies tolling; or complaint for resolution based on the an initial decision, the initial prehearing (ii) If complying with the deadline existing record. conference shall be held no later than 10 would violate the due process rights of * * * * * calendar days after the deadline for a party or would be inconsistent with ■ 5. Section 1.229 is amended by submitting written appearances fundamental fairness; or redesignating paragraph (b)(3) as (b)(4), pursuant to § 1.221(h) or within such (iii) In extraordinary situations, due to revising newly redesignated paragraph shorter or longer period as the a lack of adjudicatory resources (b)(4), and adding new paragraph (b)(3), Commission may allow on motion or available at the time in the Office of to read as follows: notice consistent with the public Administrative Law Judges. interest. § 1.229 Motions to enlarge, change, or (b)(1) The presiding officer (or the PART 1—PRACTICE AND delete issues. Commission or a panel of PROCEDURE * * * * * commissioners in a case over which it (b) * * * presides), on his own initiative or at the ■ 3. The authority citation for Part 1 (3) For program carriage complaints request of any party, may direct the continues to read as follows: filed pursuant to § 76.1302 of this parties or their attorneys to appear at a Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. chapter that the Chief, Media Bureau specified time and place for a 151, 154(i), 154(j), 155, 157, 225, 227, 303(r), refers to an administrative law judge for conference prior to or during the course and 309. an initial decision, such motions shall of a hearing, or to submit suggestions in ■ 4. Section 1.221 is amended by adding be filed within 15 calendar days after writing, for the purpose of considering paragraph (h) to read as follows: the deadline for submitting written any of the matters set forth in paragraph appearances pursuant to § 1.221(h), (c) of this section. The initial prehearing § 1.221 Notice of hearing; appearances. except that persons not named as parties conference shall be scheduled 30 days * * * * * to the proceeding in the designation after the effective date of the order (h)(1) For program carriage order may file such motions with their designating a case for hearing, unless complaints filed pursuant to § 76.1302 petitions to intervene up to 30 days after good cause is shown for scheduling of this chapter that the Chief, Media publication of the full text or a summary such conference at a later date, except Bureau refers to an administrative law of the designation order in the Federal that for program carriage complaints judge for an initial decision, each party, Register. (See § 1.223). filed pursuant to § 76.1302 of this in person or by attorney, shall file a (4) Any person desiring to file a chapter that the Chief, Media Bureau written appearance within five calendar motion to modify the issues after the refers to an administrative law judge for days after the party informs the Chief expiration of periods specified in an initial decision, the initial prehearing Administrative Law Judge that it elects paragraphs (a), (b)(1), (b)(2), and (b)(3) of conference shall be held no later than 10 not to pursue alternative dispute this section, shall set forth the reason calendar days after the deadline for resolution pursuant to § 76.7(g)(2) of why it was not possible to file the submitting written appearances this chapter or, if the parties have motion within the prescribed period. pursuant to § 1.221(h) or within such

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shorter or longer period as the presiding demonstrating that the required distributor, based on a combination of officer may allow on motion or notice notification pursuant to paragraph (b) of factors, such as genre, ratings, license consistent with the public interest. this section has been made. fee, target audience, target advertisers, * * * * * (d) Prima facie case. In order to target programming, and other factors; establish a prima facie case of a and PART 76—MULTICHANNEL VIDEO violation of § 76.1301, the complaint (ii) Evidence that the defendant AND CABLE TELEVISION SERVICE must contain evidence of the following: multichannel video programming (1) The complainant is a video distributor has treated the video ■ 7. The authority citation for Part 76 programming vendor as defined in programming provided by the continues to read as follows: section 616(b) of the Communications complainant differently than the Authority: 47 U.S.C. 151, 152, 153, 154, Act of 1934, as amended, and similarly situated, affiliated video 301, 302, 302a, 303, 303a, 307, 308, 309, 312, § 76.1300(e) or a multichannel video programming described in paragraph 315, 317, 325, 339, 340, 341, 503, 521, 522, programming distributor as defined in (d)(3)(iii)(B)(2)(i) of this section with 531, 532, 534, 535, 536, 537, 543, 544, 544a, section 602(13) of the Communications respect to the selection, terms, or 545, 548, 549, 552, 554, 556, 558, 560, 561, Act of 1934, as amended, and conditions for carriage. 571, 572 and 573. § 76.1300(d); (e) Answer. (1) Any multichannel ■ 8. Section 76.7 is amended by revising (2) The defendant is a multichannel video programming distributor upon paragraph (g)(2) to read as follows: video programming distributor as which a carriage agreement complaint is defined in section 602(13) of the served under this section shall answer § 76.7 General special relief, waiver, Communications Act of 1934, as within sixty (60) days of service of the enforcement, complaint, show cause, amended, and § 76.1300(d); and complaint, unless otherwise directed by forfeiture, and declaratory ruling (3)(i) Financial interest. In a the Commission. procedures. complaint alleging a violation of (2) The answer shall address the relief * * * * * § 76.1301(a), documentary evidence or requested in the complaint, including (g) * * * testimonial evidence (supported by an legal and documentary support, for such (2) Before designation for hearing, the affidavit from a representative of the response, and may include an staff shall notify, either orally or in complainant) that supports the claim alternative relief proposal without any writing, the parties to the proceeding of that the defendant required a financial prejudice to any denials or defenses its intent to so designate, and the parties interest in any program service as a raised. shall be given a period of ten (10) days condition for carriage on one or more of (f) Reply. Within twenty (20) days to elect to resolve the dispute through such defendant’s systems. after service of an answer, unless alternative dispute resolution (ii) Exclusive rights. In a complaint otherwise directed by the Commission, procedures, or to proceed with an alleging a violation of § 76.1301(b), the complainant may file and serve a adjudicatory hearing. Such election documentary evidence or testimonial reply which shall be responsive to shall be submitted in writing to the evidence (supported by an affidavit matters contained in the answer and Commission and the Chief from a representative of the shall not contain new matters. Administrative Law Judge. complainant) that supports the claim (g) Prima facie determination. (1) * * * * * that the defendant coerced a video Within sixty (60) calendar days after the ■ 9. Section 76.1302 is amended by programming vendor to provide, or complainant’s reply to the defendant’s revising paragraphs (c) through (g) and retaliated against such a vendor for answer is filed (or the date on which the adding paragraphs (h) through (k) to failing to provide, exclusive rights reply would be due if none is filed), the read as follows: against any other multichannel video Chief, Media Bureau shall release a programming distributor as a condition decision determining whether the § 76.1302 Carriage agreement for carriage on a system. complainant has established a prima proceedings. (iii) Discrimination. In a complaint facie case of a violation of § 76.1301. * * * * * alleging a violation of § 76.1301(c): (2) The Chief, Media Bureau may toll (c) Contents of complaint. In addition (A) Evidence that the conduct alleged the sixty (60)-calendar-day deadline to the requirements of § 76.7, a carriage has the effect of unreasonably under the following circumstances: agreement complaint shall contain: restraining the ability of an unaffiliated (i) If the complainant and defendant (1) Whether the complainant is a video programming vendor to compete jointly request that the Chief, Media multichannel video programming fairly; and Bureau toll these deadlines in order to distributor or video programming (B) (1) Documentary evidence or pursue settlement discussions or vendor, and, in the case of a testimonial evidence (supported by an alternative dispute resolution or for any multichannel video programming affidavit from a representative of the other reason that the complainant and distributor, identify the type of complainant) that supports the claim defendant mutually agree justifies multichannel video programming that the defendant discriminated in tolling; or distributor, the address and telephone video programming distribution on the (ii) If complying with the deadline number of the complainant, what type basis of affiliation or non-affiliation of would violate the due process rights of of multichannel video programming vendors in the selection, terms, or a party or would be inconsistent with distributor the defendant is, and the conditions for carriage of video fundamental fairness. address and telephone number of each programming provided by such vendors; (3) A finding that the complainant has defendant; or established a prima facie case of a (2) Evidence that supports (2) (i) Evidence that the complainant violation of § 76.1301 means that the complainant’s belief that the defendant, provides video programming that is complainant has provided sufficient where necessary, meets the attribution similarly situated to video programming evidence in its complaint to allow the standards for application of the carriage provided by a video programming case to proceed to a ruling on the merits. agreement regulations; vendor affiliated (as defined in (4) If the Chief, Media Bureau finds (3) The complaint must be § 76.1300(a)) with the defendant that the complainant has not established accompanied by appropriate evidence multichannel video programming a prima facie case of a violation of

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§ 76.1301, the Chief, Media Bureau will pursue settlement discussions or (2) Additional sanctions. The dismiss the complaint. alternative dispute resolution or for any remedies provided in paragraph (j)(1) of (h) Time limit on filing of complaints. other reason that the complainant and this section are in addition to and not Any complaint filed pursuant to this defendant mutually agree justifies in lieu of the sanctions available under subsection must be filed within one year tolling; or title V or any other provision of the of the date on which one of the (B) If complying with the deadline Communications Act. following events occurs: would violate the due process rights of (k) Petitions for temporary standstill. (1) The multichannel video a party or would be inconsistent with (1) A program carriage complainant programming distributor enters into a fundamental fairness. seeking renewal of an existing contract with a video programming (2) For program carriage complaints programming contract may file a distributor that a party alleges to violate that the Chief, Media Bureau refers to an petition along with its complaint one or more of the rules contained in administrative law judge for an initial requesting a temporary standstill of the this section; or decision, the deadlines set forth in price, terms, and other conditions of the (2) The multichannel video § 0.341(f) of this chapter apply. existing programming contract pending programming distributor offers to carry (j) Remedies for violations—(1) resolution of the complaint. To allow for the video programming vendor’s Remedies authorized. Upon completion sufficient time to consider the petition programming pursuant to terms that a of such adjudicatory proceeding, the for temporary standstill prior to the party alleges to violate one or more of Commission shall order appropriate expiration of the existing programming the rules contained in this section, and remedies, including, if necessary, contract, the petition for temporary such offer to carry programming is mandatory carriage of a video standstill and complaint shall be filed unrelated to any existing contract programming vendor’s programming on no later than thirty (30) days prior to the between the complainant and the defendant’s video distribution system, expiration of the existing programming multichannel video programming or the establishment of prices, terms, contract. In addition to the requirements distributor; or and conditions for the carriage of a of § 76.7, the complainant shall have the (3) A party has notified a video programming vendor’s burden of proof to demonstrate the multichannel video programming programming. Such order shall set forth following in its petition: distributor that it intends to file a a timetable for compliance, and shall (i) The complainant is likely to complaint with the Commission based become effective upon release, unless prevail on the merits of its complaint; on violations of one or more of the rules any order of mandatory carriage would (ii) The complainant will suffer contained in this section. require the defendant multichannel irreparable harm absent a stay; video programming distributor to delete (i) Deadline for decision on the merits. (iii) Grant of a stay will not existing programming from its system to (1)(i) For program carriage complaints substantially harm other interested accommodate carriage of a video that the Chief, Media Bureau decides on parties; and the merits based on the complaint, programming vendor’s programming. In (iv) The public interest favors grant of answer, and reply without discovery, such instances, if the defendant seeks a stay. the Chief, Media Bureau shall release a review of the staff, or administrative law (2) The defendant multichannel video decision on the merits within sixty (60) judge decision, the order for carriage of programming distributor upon which a calendar days after the Chief, Media a video programming vendor’s petition for temporary standstill is Bureau’s prima facie determination. programming will not become effective (ii) For program carriage complaints unless and until the decision of the staff served shall answer within ten (10) days that the Chief, Media Bureau decides on or administrative law judge is upheld by of service of the petition, unless the merits after discovery, the Chief, the Commission. If the Commission otherwise directed by the Commission. Media Bureau shall release a decision upholds the remedy ordered by the staff (3) If the Commission grants the on the merits within 150 calendar days or administrative law judge in its temporary standstill, the adjudicator after the Chief, Media Bureau’s prima entirety, the defendant will be required deciding the case on the merits (i.e., facie determination. to carry the video programming either the Chief, Media Bureau or an (iii) The Chief, Media Bureau may toll vendor’s programming for an additional administrative law judge) will provide these deadlines under the following period equal to the time elapsed for remedies that are applied as of the circumstances: between the staff or administrative law expiration date of the previous (A) If the complainant and defendant judge decision and the Commission’s programming contract. jointly request that the Chief, Media ruling, on the terms and conditions [FR Doc. 2011–24240 Filed 9–28–11; 8:45 am] Bureau toll these deadlines in order to approved by the Commission. BILLING CODE 6712–01–P

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FEDERAL COMMUNICATIONS be submitted to the Federal docket number, MB Docket No. 11–131. COMMISSION Communications Commission via e-mail Additionally, the complete item is to [email protected] and to Nicholas A. available on the Federal 47 CFR Part 76 Fraser, Office of Management and Communications Commission’s Web Budget, via e-mail to site at http://www.fcc.gov. [MB Docket No. 11–131; FCC 11–119] [email protected] or via This document contains proposed Revision of the Commission’s Program fax at 202–395–5167. For detailed information collection requirements. Carriage Rules instructions for submitting comments The Commission, as part of its and additional information on the continuing effort to reduce paperwork AGENCY: Federal Communications rulemaking process, see the burdens, invites the general public and Commission. SUPPLEMENTARY INFORMATION section of the Office of Management and Budget ACTION: Proposed rule. this document. (OMB) to comment on the information FOR FURTHER INFORMATION CONTACT: For collection requirements contained in SUMMARY: In 1993, the Federal additional information on this this document, as required by the Communications Commission (FCC) proceeding, contact David Konczal, Paperwork Reduction Act of 1995, adopted rules pertaining to carriage of [email protected], of the Media Public Law 104–13. Written comments video programming vendors by Bureau, Policy Division, 202–418–2120. on the Paperwork Reduction Act multichannel video programming For additional information concerning proposed information collection distributors (‘‘MVPDs’’), known as the the Paperwork Reduction Act requirements must be submitted by the ‘‘program carriage rules.’’ The rules are information collection requirements public, Office of Management and intended to benefit consumers by contained in this document, send an Budget (OMB), and other interested promoting competition and diversity in e-mail to [email protected] or contact Cathy parties on or before November 28, 2011. the video programming and video Williams at 202–418–2918. To view or Comments should address: (a) distribution markets. In this document, obtain a copy of this information Whether the proposed collection of the FCC seeks comment on proposed collection request (ICR) submitted to information is necessary for the proper revisions to or clarifications of the OMB: (1) Go to this OMB/GSA Web performance of the functions of the program carriage rules, which are page: http://www.reginfo.gov/public/do/ Commission, including whether the intended to further improve the PRAMain, (2) look for the section of the information shall have practical utility; Commission’s procedures and to Web page called ‘‘Currently Under (b) the accuracy of the Commission’s advance the goals of the program Review,’’ (3) click on the downward- burden estimates; (c) ways to enhance carriage statute. pointing arrow in the ‘‘Select Agency’’ the quality, utility, and clarity of the DATES: Submit comments on or before box below the ‘‘Currently Under information collected; (d) ways to November 28, 2011, and submit reply Review’’ heading, (4) select ‘‘Federal minimize the burden of the collection of comments on or before December 28, Communications Commission’’ from the information on the respondents, 2011. See SUPPLEMENTARY INFORMATION list of agencies presented in the ‘‘Select including the use of automated section for additional comment dates. Agency’’ box, (5) click the ‘‘Submit’’ collection techniques or other forms of ADDRESSES: You may submit comments, button to the right of the ‘‘Select information technology; and (e) ways to identified by MB Docket No. 11–131, by Agency’’ box, and (6) when the list of further reduce the information any of the following methods: FCC ICRs currently under review collection burden on small business • Federal eRulemaking Portal: http:// appears, look for the OMB control concerns with fewer than 25 employees. www.regulations.gov. Follow the number of the ICR as show in the In addition, pursuant to the Small instructions for submitting comments. SUPPLEMENTARY INFORMATION section Business Paperwork Relief Act of 2002, • Federal Communications below (3060–0649) and then click on Public Law 107–198, see 44 U.S.C. Commission’s Web site: http:// the ICR Reference Number. A copy of 3506(c)(4), we seek specific comment on www.fcc.gov/cgb/ecfs/. Follow the the FCC submission to OMB will be how we might further reduce the instructions for submitting comments. displayed. information collection burden for small • Mail: Filings can be sent by hand or SUPPLEMENTARY INFORMATION: This is a business concerns with fewer than 25 messenger delivery, by commercial summary of the Commission’s Notice of employees. overnight courier, or by first-class or Proposed Rulemaking (NPRM), MB OMB Control Number: 3060–0888. overnight U.S. Postal Service mail Docket No. 11–131, FCC No. 11–119, Title: Section 76.7, Petition (although the Commission continues to adopted on July 29, 2011 and released Procedures; § 76.9, Confidentiality of experience delays in receiving U.S. on August 1, 2011. The full text of the Proprietary Information; § 76.61, Postal Service mail). All filings must be NPRM is available for public inspection Dispute Concerning Carriage; § 76.914, addressed to the Commission’s and copying during regular business Revocation of Certification; § 76.1001, Secretary, Office of the Secretary, hours in the FCC Reference Information Unfair Practices; § 76.1003, Program Federal Communications Commission. Center, Portals II, 445 12th Street, SW., Access Proceedings; § 76.1302, Carriage • People With Disabilities: Contact Room CY–A257, Washington, DC 20554. Agreement Proceedings; § 76.1303, the FCC to request reasonable It also may be purchased from the Discovery; § 76.1513, Open Video accommodations (accessible format Commission’s duplicating contractor at Dispute Resolution. documents, sign language interpreters, Portals II, 445 12th Street, SW., Room Form Number: Not applicable. CART, etc.) by e-mail: [email protected] CY–B402, Washington, DC 20554; the Type of Review: Revision of a or phone: 202–418–0530 or TTY: 202– contractor’s Web site, http:// currently approved collection. 418–0432. www.bcpiweb.com; or by calling 800– Respondents: Businesses or other for- In addition to filing comments with 378–3160, facsimile 202–488–5563, or profit. the Secretary, a copy of any comments e-mail [email protected]. Copies of Number of Respondents and on the Paperwork Reduction Act the NPRM also may be obtained via the Responses: 648. proposed information collection Commission’s Electronic Comment Estimated Time per Response: 5.2 to requirements contained herein should Filing System (ECFS) by entering the 78 hours.

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Frequency of Response: On occasion pursuant to § 76.1302 must contain in one of the final offers or to fashion its reporting requirement; third party order to establish a prima facie case of own remedy. disclosure requirement. retaliation in violation of § 76.1301. If adopted, 47 CFR 76.1302(j)(4) Obligation to Respond: Required to If adopted, 47 CFR 76.1302(d)(3)(v) would provide that the (i) adjudicator obtain or retain benefits. The statutory would set forth the evidence that a may require the complainant to authority for this collection of program carriage complaint filed resubmit a damages computation or information is contained in contained in pursuant to § 76.1302 must contain in damages methodology filed pursuant to sections 4(i), 303(r), and 616 of the order to establish a prima facie case of § 76.1302(c)(4); and (ii) where the Communications Act of 1934, as bad faith negotiations in violation of adjudicator issues a written order amended. § 76.1301. approving or modifying a damages Total Annual Burden: 26,957 hours. If adopted, 47 CFR 76.1302(e)(3) methodology, the parties shall negotiate Total Annual Cost: $1,749,600. would require a multichannel video in good faith to reach an agreement on Privacy Act Impact Assessment: No programming distributor that expressly the exact amount of damages pursuant impact. references and relies upon a document to the adjudicator-mandated Nature and Extent of Confidentiality: or documents in asserting a defense to methodology and within thirty (30) days A party that wishes to have a program carriage complaint or in of the issuance of a damages confidentiality for proprietary responding to a material allegation in a methodology order, the parties shall information with respect to a program carriage complaint, to include submit jointly to the adjudicator either: submission it is making to the such document or documents as part of (1) A statement detailing the parties’ Commission must file a petition the answer. agreement as to the amount of damages; pursuant to the pleading requirements If the revision in the NPRM is (2) A statement that the parties are in § 76.7 and use the method described adopted, 47 CFR 76.1302(h) would state continuing to negotiate in good faith in §§ 0.459 and 76.9 to demonstrate that that any complaint filed pursuant to this and a request that the parties be given confidentiality is warranted. subsection must be filed within one year an extension of time to continue Needs and Uses: On August 1, 2011, of the date on which the alleged negotiations; or (3) A statement the Commission adopted a Notice of violation of the program carriage rules detailing the bases for the continuing Proposed Rulemaking (‘‘NPRM’’), occurred. dispute and the reasons why no Revision of the Commission’s Program If the revision in the NPRM is agreement can be reached. Carriage Rules, MB Docket No. 11–131, adopted, 47 CFR 76.1302(j)(1) would If the revision in the NPRM is FCC 11–119. The Commission seeks state that upon completion of an adopted, 47 CFR 76.1302(k)(3) would comment on revisions to or adjudicatory proceeding, the adjudicator provide that, in cases where a standstill clarifications of the program carriage deciding the case on the merits (i.e., petition is granted, the adjudicator, in rules, which are intended to further either the Chief, Media Bureau or an order to facilitate the application of improve the Commission’s procedures administrative law judge) shall order remedies as of the expiration date of the and to advance the goals of the program appropriate remedies, including, if previous programming contract, may carriage statute. necessary, mandatory carriage of a video request after deciding the case on the The NPRM proposes to add or revise programming vendor’s programming on merits that the party seeking to apply the following rules sections: 47 CFR defendant’s video distribution system, the remedies as of the expiration date of 76.1302(c)(4), 47 CFR 76.1302(d)(3)(iii), or the establishment of prices, terms, the previous programming contract to 47 CFR 76.1302(d)(3)(iv), 47 CFR and conditions for the carriage of a submit a proposal for such application 76.1302(d)(3)(v), 47 CFR 76.1302(e)(3), video programming vendor’s of remedies pursuant to the procedures 47 CFR 76.1302(h), 47 CFR programming. Such order shall set forth for requesting damages set forth in 76.1302(j)(1), 47 CFR 76.1302(j)(3), 47 a timetable for compliance, and shall § 76.1302(c)(4) and § 76.1302(j)(4). An CFR 76.1302(j)(4), 47 CFR 76.1302(k)(3), become effective upon release, unless opposition to such a proposal shall be and 47 CFR 76.1303. the adjudicator rules that the defendant filed within ten (10) days after the If adopted, 47 CFR 76.1302(c)(4) has made a sufficient evidentiary proposal is filed. A reply to an would provide that, in a case where showing that demonstrates that an order opposition shall be filed within five (5) recovery of damages is sought, the of mandatory carriage would require the days after the opposition is filed. complaint shall contain a clear and defendant multichannel video If adopted, 47 CFR 76.1303 would unequivocal request for damages and programming distributor to delete provide for discovery procedures in appropriate allegations in support of existing programming from its system to complaint proceedings alleging a such claim, and lists the information accommodate carriage of a video violation of § 76.1301 in which the that must be included in the complaint programming vendor’s programming. In Chief, Media Bureau acts as the when requesting damages. such instances, if the defendant seeks adjudicator. With respect to automatic 47 CFR 76.1302(d)(3)(iii) sets forth the review of the staff, or administrative law document production, within ten (10) evidence that a program carriage judge decision, the order for carriage of calendar days after the Chief, Media complaint filed pursuant to § 76.1302 a video programming vendor’s Bureau releases a decision finding that must contain in order to establish a programming will not become effective the complainant has established a prima prima facie case of discrimination in unless and until the decision of the staff facie case of a violation of § 76.1301 and violation of § 76.1301, and, if the or administrative law judge is upheld by stating that the Chief, Media Bureau will revision in the NPRM is adopted, would the Commission. issue a ruling on the merits of the also apply to new claims alleging that a If adopted, 47 CFR 76.1302(j)(3) complaint after discovery, each party vertically integrated MVPD has would provide that, to assist in ordering must provide certain documents listed discriminated on the basis of a an appropriate remedy, the adjudicator in the Commission’s rules to the programming vendor’s lack of affiliation has the discretion to order the opposing party. With respect to party-to- with another MVPD. complainant and the defendant to each party discovery, within twenty (20) If adopted, 47 CFR 76.1302(d)(3)(iv) submit a final offer for the prices, terms, calendar days after the Chief, Media would set forth the evidence that a or conditions in dispute. The Bureau releases a decision finding that program carriage complaint filed adjudicator has the discretion to adopt the complainant has established a prima

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facie case of a violation of § 76.1301 and § 76.1302(f) provides that a complaint the defendant MVPD of its intention to stating that the Chief, Media Bureau will must be filed ‘‘within one year of the file. Moreover, the introductory issue a ruling on the merits of the date on which one of the following language to § 76.1302(f) provides that a complaint after discovery, each party to events occurs: complaint must be filed ‘‘within one the complaint may serve requests for (1) The multichannel video year of the date on which one of the discovery directly on the opposing programming distributor enters into a following events occurs,’’ which implies party, and file a copy of the request with contract with a video programming that a complaint filed in compliance the Commission. Within five (5) distributor that a party alleges to violate with § 76.1302(f)(3) is timely even if it calendar days after being served with a one or more of the rules contained in would be untimely under discovery request, the respondent may this section; or §§ 76.1302(f)(1) or (f)(2). Thus, it serve directly on the party requesting (2) The multichannel video appears that § 76.1302(f)(3) undermines discovery an objection to any request for programming distributor offers to carry the fundamental purpose of a statute of discovery that is not in the respondent’s the video programming vendor’s limitations ‘‘to protect a potential control or relevant to the dispute, and programming pursuant to terms that a defendant against stale and vexatious file a copy of the objection with the party alleges to violate one or more of claims by ending the possibility of Commission. Within five (5) calendar the rules contained in this section, and litigation after a reasonable period of days after being served with an such offer to carry programming is time has elapsed.’’ objection to a discovery request, the unrelated to any existing contract 3. In light of these concerns, we party requesting discovery may serve a between the complainant and the propose to revise our program carriage reply to the objection directly on the multichannel video programming statute of limitations to provide that a respondent, and file a copy of the reply distributor; or complaint must be filed within one year with the Commission. To the extent that (3) A party has notified a of the act that allegedly violated the a party has objected to a discovery multichannel video programming program carriage rules. We seek request, the parties shall meet and distributor that it intends to file a comment on any potential ramifications confer to resolve the dispute. Within complaint with the Commission based of this revised statute of limitations on forty (40) calendar days after the Chief, on violations of one or more of the rules programming vendors and MVPDs. We Media Bureau releases a decision contained in this section.’’ 2 recognize that the issue of when the act finding that the complainant has Our concern is with § 76.1302(f)(3), that allegedly violated the rules established a prima facie case of a which states that a complaint is timely occurred is fact-specific and in some violation of § 76.1301 and stating that if filed within one year of when the cases may be subject to differing views the Chief, Media Bureau will issue a complainant notified the defendant between the parties. For example, to the ruling on the merits of the complaint MVPD of its intention to file a extent that the claim involves denial of after discovery, the parties shall file complaint and contains no reference to carriage, an issue might arise as to with the Commission a joint proposal when the alleged violation of the whether the denial occurred when the for discovery as well as a list of issues program carriage rules occurred.3 In MVPD first rejected a programming pertaining to discovery that have not other words, the rule could be read to vendor’s request for carriage early in the been resolved. provide that, even if the act alleged to negotiation process or whether the All other remaining existing have violated the program carriage rules denial occurred later after further information collection requirements occurred many years before the filing of carriage discussions. We expect that the would stay as they are, and the various the complaint, the complaint is adjudicator will be able to resolve such burden estimates would be revised to nonetheless timely if filed within one issues on a case-by-case basis. We reflect the new and revised rules noted year of when the complainant notified believe our proposed rule revision will above. ensure that program carriage complaints 2 47 CFR 76.1302(f). This rule will now appear at are filed on a timely basis and will Summary of the Notice of Proposed § 76.1302(h) once the amendments adopted in the provide certainty to both MVPDs and Rulemaking Second Report and Order in MB Docket No. 07–42 take effect. prospective complainants. We propose I. Notice of Proposed Rulemaking 3 As originally adopted in the 1993 Program that this revised statute of limitations 1. In this NPRM in MB Docket No. 11– Carriage Order, the rule that is now § 76.1302(f)(3) will replace § 76.1302(f) in its entirety, formerly read that a complaint must be filed within thereby providing for one broad rule 131, we seek comment on the following one year of the date when ‘‘the complainant has additional revisions or clarifications to notified a multichannel video programming covering all program carriage claims. both our procedural and substantive distributor that it intends to file a complaint with Alternatively, we could replace only program carriage rules, which are the Commission based on a request for carriage or § 76.1302(f)(3) with this revised statute to negotiate for carriage of its programming on of limitations and retain § 76.1302(f)(1) intended to facilitate the resolution of defendant’s distribution system that has been 1 program carriage claims. We also invite denied or unacknowledged, allegedly in violation of and (f)(2). Because this revised statute of commenters to suggest any other one or more of the rules contained in this subpart.’’ limitations would appear to cover the changes to our program carriage rules See 1993 Program Carriage Order, 9 FCC Rcd at claims referred to in § 76.1302(f)(1) and that would improve our procedures and 2652–53, para. 25 and 2676, Appendix D (47 CFR (f)(2), however, replacing § 76.1302(f) in 76.1302(r)(3)). In the 1994 Program Carriage Order, its entirety appears to be warranted. We promote the goals of the program the Commission eliminated without explanation the carriage statute. language in this rule specifying that the ask parties to comment on this issue. complainant’s notice of intent would be ‘‘based on 4. To the extent we retain A. Statute of Limitations a request for carriage or to negotiate for carriage of § 76.1302(f)(1), we propose to make a 2. The current program carriage its programming on defendant’s distribution system minor clarification. As amended in the that has been denied or unacknowledged.’’ The statute of limitations set forth in Commission replaced the rule with the current 1998 Biennial Regulatory Review Order, language, with a minor edit adopted in the 1998 the rule currently provides that a 1 Unless otherwise noted, all references to Biennial Regulatory Review Order. See 1994 complaint must be filed within one year comments, reply comments, or letters in this NPRM Program Carriage Order, 9 FCC Rcd at 4421, of the date when a ‘‘multichannel video refer to submissions filed in response to the Appendix A (47 CFR 76.1302(r)(3)); 1998 Biennial programming distributor enters into a Program Carriage NPRM in MB Docket No. 07–42. Regulatory Review Order, 14 FCC Rcd at 441, See Program Carriage NPRM, MB Docket No. 07– Appendix A (changing the word ‘‘subpart’’ to contract with a video programming 42, 22 FCC Rcd 11222 (2007). ‘‘section’’). distributor’’ that a party alleges to

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violate one or more of the program resolution of complaints while also procedures hinder the Media Bureau’s carriage rules. The program carriage ensuring fairness to all parties. ability to comply with the expedited statute and rules, however, pertain to deadline adopted in the Second Report 1. Expanded Discovery Procedures contracts, and negotiations related and Order for the resolution of program thereto, between MVPDs and video 6. We seek comment on whether to carriage complaints? 6 Are the parties to programming vendors, not distributors. adopt expanded discovery procedures a complaint in a better position to Indeed, section 616 of the Act refers to for program carriage complaint determine what information is needed ‘‘video programming vendors.’’ proceedings in which the Media Bureau to support their cases than Media Consistent with the statute, the previous rules on the merits of the complaint Bureau staff, thus establishing expanded version of this rule adopted in the 1994 after discovery similar to the procedures discovery procedures as fairer to all Program Carriage Order accurately that exist for program access cases. parties than Commission-controlled stated that the contract must be entered Under the current program carriage discovery? Should we make clear that into with a ‘‘video programming rules, discovery is Commission- expanded discovery procedures apply to vendor,’’ not a ‘‘distributor.’’ controlled, meaning that Media Bureau all forms of discovery, including Accordingly, to the extent we retain staff identifies the matters for which document production, interrogatories, § 76.1302(f)(1), we propose to replace discovery is needed and then issues and depositions? 7 We note that, as the term ‘‘video programming letters of inquiry to the parties on those described below, to ensure that distributor’’ with ‘‘video programming matters or requires the parties to confidential information is not vendor.’’ produce specific documents related to improperly used for competitive those matters. Under the expanded business purposes, we seek comment on B. Discovery discovery procedures applicable to adopting a more stringent standard 5. We seek comment on whether to program access cases, however, protective order and declaration than is revise our discovery procedures for discovery is controlled by the parties. currently used in program access cases. program carriage complaint proceedings As an initial matter, the program access 7. One potential concern with in which the Media Bureau rules on the rules provide that, to the extent the expanded discovery procedures is that merits of the complaint after discovery. defendant expressly references and they will lead to overbroad discovery As discussed above, if the Media Bureau relies upon a document in asserting a requests and extended disputes finds that the complainant has defense or responding to a material pertaining to relevance, which the established a prima facie case but allegation, the document must be Commission recognized as a concern in determines that it cannot resolve the included as part of the answer. In the 1993 Program Carriage Order when complaint based on the existing record, addition, parties to a program access it allowed for only Commission- the Media Bureau may outline complaint may serve requests for controlled discovery. To ensure an procedures for discovery before discovery directly on opposing parties expeditious discovery process, should proceeding to rule on the merits of the rather than relying on the Media Bureau we impose a numerical limit on the complaint or it may refer the proceeding staff to seek discovery through letters of number of document requests, or discrete issues raised in the inquiry or document requests. The interrogatories, and depositions a party proceeding for an adjudicatory hearing respondent may object to any request for may request? Should we establish before an ALJ. To the extent the Media documents that are not in its control or specific deadlines for the discovery Bureau proceeds to develop discovery relevant to the dispute.5 The obligation process in order to enable the Media procedures, the 1993 Program Carriage to produce the disputed material is Bureau to meet the 150-calendar-day Order provides that ‘‘[w]herever suspended until the Commission rules resolution deadline? For example, possible, to avoid discovery disputes on the objection. Any party who fails to although not currently specified in our and arguments pertaining to relevance, timely provide discovery requested by program access rules, we seek comment the staff will itself conduct discovery by the opposing party to which it has not on whether to establish deadlines by issuing appropriate letters of inquiry or raised an objection, or who fails to when parties must submit discovery requiring that specific documents be respond to a Commission order for requests, objections thereto, and replies produced.’’ 4 We seek comment on discovery material, may be deemed in revising the Media Bureau’s discovery default and an order may be entered in 6 See Second Report and Order in MB Docket No. process for program carriage complaints accordance with the allegations 07–42, para. 21 (establishing that, in cases that the based on the following: (i) Expanded contained in the complaint, or the Media Bureau decides on the merits after discovery, the Media Bureau must issue a decision within 150 discovery procedures (also known as complaint may be dismissed with calendar days after its prima facie determination). party-to-party discovery) similar to the prejudice. We seek comment on We note that while the Commission has established procedures that exist for program access whether these are appropriate discovery aspirational goals for the resolution of program complaints; and (ii) an automatic procedures for program carriage access complaints, those deadlines do not apply to cases involving complex discovery. See document production process that is complaints decided on by the Media Implementation of the Cable Television Consumer narrowly tailored to program carriage Bureau after discovery. Is there any Protection and Competition Act of 1992: Petition for complaints. This discovery process basis to believe that expanded discovery Rulemaking of Ameritech New Media, Inc. would be in addition to the Media procedures are appropriate for program Regarding Development of Competition and Diversity in Video Programming Distribution and Bureau’s ability to order discovery access cases but not program carriage Carriage, Report and Order, 13 FCC Rcd 15822, under § 76.7(f). We also seek comment cases? Will expanded discovery 15842–43, para. 41 (1998) (‘‘1998 Program Access on any other approaches to discovery. Order’’); see also 2007 Program Access Order, 22 Our goal is to establish a discovery 5 See 47 CFR 76.1003(j); 2007 Program Access FCC Rcd at 17857, para. 108 (reaffirming aspirational goals set forth in the 1998 Program process that ensures the expeditious Order, 22 FCC Rcd at 17852, para. 98. We note that a Petition for Reconsideration of the 2007 Program Access Order). Access Order is pending that argues that our rules 7 Compare 1993 Program Carriage Order, 9 FCC 4 See 1993 Program Carriage Order, 9 FCC Rcd at should clarify that a party is able to object based Rcd at 2652, para. 23 and 2655–56, para. 32 2655–56, para. 32; see also id. at 2652, para. 23 on privilege in addition to objecting on the grounds (referring to the Media Bureau’s ordering of (providing that discovery will ‘‘not necessarily be of lack of control or relevance. See Fox document production and interrogatories) with 47 permitted as a matter of right in all cases, but only Entertainment Group, Inc., Petition for CFR 76.7(f)(1) (referring to the Media Bureau’s as needed on a case-by-case basis, as determined by Reconsideration, MB Docket No. 07–29 (Nov. 5, ordering of depositions in addition to document the staff’’); see also 47 CFR 76.7(f). 2007), at 10. production and interrogatories).

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to objections, such as 20, 25, and 30 result in ‘‘substantial time savings.’’ 10 production should reduce delay calendar days respectively after the Should we establish a similar approach resulting from debates over relevancy. Media Bureau’s prima facie for program carriage cases? We believe Second, automatic document determination in which it states that it that this process could work in production should enable the parties to will rule on the merits of the complaint conjunction with the expanded identify early in the discovery process after discovery.8 We also seek comment discovery procedures outlined above. any individuals they seek to depose. on whether to require the parties to For example, within ten calendar days Third, by providing advanced notice of meet and confer to attempt to mutually after the Media Bureau issues a decision documents that are relevant, parties resolve their discovery disputes and to finding that the complaint contains should have sufficient time to gather submit a joint comprehensive discovery sufficient evidence to establish a prima these documents and to produce them proposal to the Media Bureau within 40 facie case and stating that it will rule on promptly. Fourth, automatic document calendar days after the Media Bureau’s the merits of the complaint after production may prevent delays in prima facie determination, with any discovery, both parties would produce obtaining any necessary third-party remaining unresolved issues to be ruled the documents in the automatic consent. Production of certain on by the Media Bureau. We also seek document production list set forth in documents, such as programming input on whether to establish a firm the Commission’s rules for the specific contracts, may require third-party deadline for when discovery must be program carriage claim at issue.11 Is this consent before disclosure, resulting in a completed, such as 75 calendar days a sufficient amount of time for delay in the production of documents. after the Media Bureau’s prima facie production, considering that the The automatic document production list determination, and for the submission required documents will be listed in our should help address this concern by of post-discovery briefs and reply briefs, rules and thus parties will have providing the parties with advanced such as 20 calendar days and ten advanced notice as to what documents notice that they may have to produce calendar days, respectively, after the must be produced? Based on the certain documents in the event of a conclusion of discovery.9 With these documents produced, the parties would prima facie finding, thus providing deadlines, the Media Bureau would then proceed to request additional parties with time to secure any required have 45 days to prepare and release a discovery pursuant to the deadlines set third-party consents. Are there any decision on the merits. forth above (i.e., discovery requests, other advantages or disadvantages with 2. Automatic Document Production objections thereto, and responses to an automatic document production objections would be due 20, 25 and 30 process? 8. In addition to expanded discovery calendar days respectively after the 10. To the extent we adopt an procedures, we seek comment on an Media Bureau’s prima facie automatic document production process automatic document production determination). To the extent that we do process, we seek comment on what that is narrowly tailored to the issues not adopt automatic document raised in program carriage complaints. documents must be produced. The types production, the initial ten-day of documents will necessarily vary Under this approach, if the Media production period would not be Bureau issues a decision finding that a based on whether the claim is a required; thus, we also seek comment violation of the financial interest, complaint contains sufficient evidence on more expeditious deadlines for to establish a prima facie case and exclusivity, or discrimination provision. submitting discovery requests, Below we suggest some documents that stating that it will rule on the merits of objections thereto, and responses to the complaint after discovery, both might be considered sufficiently objections in the event we do not adopt relevant to include in the automatic parties would have a certain period of automatic document production. time to produce basic threshold document production list. We seek 9. We seek input on whether comment on whether specific documents listed in the Commission’s automatic document production will rules that are relevant to the program documents should be added or result in substantial time savings and removed. carriage claim at issue. The Commission thereby more expeditious resolution of adopted a similar approach for program carriage complaints. We ask Financial Interest Claim comparative broadcast proceedings commenters to consider the following • All documents relating to carriage involving applications for new facilities. ways in which automatic document Under those procedures, after the or requests for carriage of the video production might expedite discovery. programming at issue in the complaint issuance of an HDO, applicants were First, by establishing that certain required to produce documents by the defendant MVPD; documents are relevant for a program • All documents relating to the enumerated in a standardized document carriage claim, automatic document production order set forth in the defendant MVPD’s interest in obtaining or plan to obtain a financial interest in Commission’s rules. The Commission 10 See 1990 Comparative Hearing Order, 5 FCC adopted this approach because it would Rcd 157, para. 25; see also id. at para. 27 (‘‘With the complainant or the video the early provision of the information required in programming at issue in the complaint; 8 As discussed above, after finding that the the standardized document production order and and complainant has established a prima facie case, the the uniform integration statement, we would expect • All documents relating to the Media Bureau could rule on the merits of a that the remainder of the discovery process could complaint based on the pleadings without be expedited.’’). programming vendor’s consideration of discovery. See Second Report and Order in MB 11 As discussed above, after finding that the whether to provide the defendant MVPD Docket No. 07–42, para. 21. The deadlines related complainant has established a prima facie case, the with a financial interest in the to discovery discussed here would be triggered only Media Bureau might rule on the merits of a complainant or the video programming if the Media Bureau’s decision finding that the complaint based on the pleadings without complainant has established a prima facie case discovery. See Second Report and Order in MB at issue in the complaint. states that the Media Bureau will issue a ruling on Docket No. 07–42, para. 21. The deadlines related Exclusivity Claim the merits of the complaint after discovery. to automatic document production discussed here 9 See 47 CFR 76.7(e)(3) (stating that the would be triggered only if the Media Bureau’s • All documents relating to carriage Commission may, in its discretion, require the decision finding that the complainant has or requests for carriage of the video parties to file briefs summarizing the facts and established a prima facie case states that the Media issues presented in the pleadings and other record Bureau will issue a ruling on the merits of the programming at issue in the complaint evidence). complaint after discovery. by the defendant MVPD;

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• All documents relating to the affiliation agreements with the ten carriage complaint are unable to defendant MVPD’s interest in obtaining largest MVPDs (including, if not mutually agree to their own protective or plan to obtain exclusive rights to the otherwise covered, the defendant order prior to the ten-day automatic video programming at issue in the MVPD) carrying the video programming production deadline discussed above, complaint; and in terms of subscribers. should the parties be deemed to have • All documents relating to the 11. Should our rules limit the agreed to the standard protective order, programming vendor’s consideration of automatic production of documents to thereby allowing document production whether to provide the defendant MVPD those generated or received after a to proceed? To the extent that the with exclusive rights to the video certain date, such as within three years automatic document production list or programming at issue in the complaint. prior to the complaint? Should our rules discovery in general requires production Discrimination Claim require the parties to establish a of documents, such as programming privilege log describing the documents • contracts, that require third-party All documents relating to the that have been withheld along with consent before disclosure, does the defendant MVPD’s carriage decision support for any claim of privilege? standard protective order address with respect to the complainant’s video Should we specify in our rules that the reasonable concerns commonly programming at issue in the complaint, Media Bureau has the discretion to add expressed by third parties or should including (i) the defendant MVPD’s or remove documents from this specific provisions be added to address reasons for not carrying the video automatic production list based on the those concerns? Are there any other programming or the defendant MVPD’s specific facts of a case when issuing its actions we can take to prevent third- reasons for proposing, rejecting, or prima facie decision? Rather than party consent requirements from accepting specific carriage terms; and specifying a list of documents in our delaying the completion of discovery? (ii) the defendant MVPD’s evaluation of rules, should we instead require the the video programming; Media Bureau when issuing a prima 4. Use of Discovery Procedures in • All documents comparing, facie decision to order the production of Program Carriage Cases Referred to an discussing the similarities or differences documents based on the specific facts of ALJ between, or discussing the extent of the case? Will this eliminate the benefits 13. We also seek comment on the competition between the complainant’s of advanced notice discussed above? extent to which any of the discovery video programming at issue in the proposals outlined above should apply complaint and the allegedly similarly 3. Protective Orders to program carriage complaints referred situated, affiliated video programming, 12. We note that one source of delay to an ALJ. As an initial matter, we note including in terms of genre, ratings, in the discovery process is the need for that cases referred to an ALJ generally license fee, target audience, target the parties to negotiate and obtain involve a hearing, which raises advertisers, and target programming; approval of a protective order before additional complexities not applicable • All documents relating to the producing confidential information. For to cases handled by the Media Bureau. impact of defendant MVPD’s carriage program access cases, we have Moreover, our rules set forth specific decision on the ability of the established a standard protective order discovery procedures applicable to complainant, the complainant’s video and declaration.12 While parties to adjudicatory proceedings conducted programming at issue in the complaint, program access cases are free to before an ALJ and also provide the ALJ the defendant MVPD, and the allegedly negotiate their own protective order, with authority to ‘‘[r]egulate the course similarly situated, affiliated video they may also rely upon this standard of the hearing.’’ Nonetheless, we seek programming to compete, including the protective order. We seek comment on comment as to whether and how the impact on (i) subscribership; (ii) license whether the program access protective discovery deadlines suggested above, fee revenues; (iii) advertising revenues; order is sufficiently stringent to ensure the automatic document production (iv) acquisition of advertisers; and (v) that confidential information is not lists, or the model protective order acquisition of programming rights; improperly used for competitive • For the complainant’s video might be used in conjunction with business purposes, or whether we programming at issue in the complaint program carriage complaints referred to should adopt a more stringent standard and the allegedly similarly situated, an ALJ. protective order for program carriage affiliated video programming, all cases. To the extent commenters have C. Damages documents (both internal documents as specific concerns with using the 14. We propose to adopt rules well as documents received from program access standard protective allowing for the award of damages for MVPDs, but limited to the ten largest order and declaration for program violations of the program carriage rules MVPDs in terms of subscribers with carriage cases, we ask that they propose that are identical to those adopted for which the complainant or the affiliated specific changes and an explanation of program access cases. Section 616(a)(5) programming vendor have engaged in their reason for their proposed of the Act directs the Commission to carriage discussions regarding the video changes.13 If parties to a program adopt regulations that ‘‘provide for programming) discussing the reasons for appropriate penalties and remedies for the MVPD’s carriage decisions with 12 See 47 CFR 76.1003(k); 2007 Program Access violations of [section 616], including respect to the video programming, Order, 22 FCC Rcd at 17853–55, paras. 100–103 and carriage.’’ Although the program including (i) the MVPD’s reasons for not Appendix E, 17894–99. carriage statute does not explicitly 13 We note that a Petition for Reconsideration of carrying the video programming or the direct the Commission to allow for the MVPD’s reasons for proposing, rejecting, the 2007 Program Access Order is pending that argues that the standard protective order should award of damages as a remedy for a or accepting specific carriage terms; and include a mechanism whereby a party can object to program carriage violation, the statute (ii) the MVPD’s evaluation of the video a specific individual seeking access to confidential does require the Commission to adopt information; should allow only outside counsel to programming; and ‘‘appropriate * * * remedies.’’ 14 The • For the complainant’s video access certain information; and should provide the parties with the right to prohibit copying of highly programming at issue in the complaint sensitive documents. See Fox Entertainment Group, 14 In the 1993 Program Carriage Order, the and the allegedly similarly situated, Inc., Petition for Reconsideration, MB Docket No. Commission stated that it would ‘‘determine the affiliated video programming, current 07–29 (Nov. 5, 2007), at 8–10. appropriate relief for program carriage violations on

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Commission has interpreted this same We seek comment on whether the review these procedures in their entirety term as used in the program access Commission has authority to award as set forth in § 76.1003(d) and statute 15 as broad enough to include a damages in program carriage cases 76.1003(h)(3) of the Commission’s rules remedy of damages, stating that: under the same analysis. and the 1998 Program Access Order to Although petitioners are correct that the 15. We believe that allowing for the determine whether they are appropriate statute does not expressly use the term award of damages would be useful in for program carriage cases. Under the ‘‘damages,’’ it does expressly empower the deterring program carriage violations program access rules, a complainant Commission to order ‘‘appropriate and promoting settlement of any seeking damages must provide in its remedies.’’ Because the statute does not limit disputes. We seek comment on this complaint either (i) a detailed the Commission’s authority to determine view. If we adopt rules allowing for the computation of damages (the ‘‘damages what is an appropriate remedy, and damages award of damages in program carriage calculation’’); or (ii) an explanation of are clearly a form of remedy, the plain cases, we propose to apply the same language of this part of section 628(e) is the information that is not in its consistent with a finding that the policies that apply in program access possession and needed to compute Commission has authority to afford relief in cases. In the program access context, the damages, why such information is the form of damages.16 Commission has stated that damages unavailable to the complainant, the would not promote competition or factual basis the complainant has for a case-by-case basis’’ and that available remedies otherwise benefit the video marketplace believing that such evidence of damages and sanctions ‘‘include forfeitures, mandatory in cases where a defendant relies upon exists, and a detailed outline of the carriage, or carriage on terms revised or specified a good faith interpretation of an by the Commission,’’ but did not explicitly include methodology that would be used to or exclude damages. 1993 Program Carriage Order, ambiguous aspect of our rules for which compute damages with such evidence 9 FCC Rcd at 2653, para. 26. there is no guidance. Conversely, the (the ‘‘damages computation 15 47 U.S.C. 548(e)(1) (‘‘Upon completion of such Commission has explained that damages methodology’’). The burden of proof adjudicatory proceeding, the Commission shall are appropriate when a defendant knew have the power to order appropriate remedies, regarding damages rests with the including, if necessary, the power to establish or should have known that its conduct complainant. The procedures provide prices, terms, and conditions of sale of would violate the rules. We request for the bifurcation of the program access programming to the aggrieved multichannel video comment on this approach. In addition, violation determination from the programming distributor.’’) (emphasis added). consistent with our program access Although the Commission initially concluded that damages determination. In ruling on it did not have authority to assess damages in rules, we propose to adopt rules whether there has been a program program access cases, it later reversed that decision. allowing for the award of compensatory access violation, the Media Bureau is Compare Implementation of Sections 12 and 19 of damages in program carriage cases. We the Cable Television Consumer Protection and required to indicate in its decision Competition Act of 1992: Development of do not propose to allow for awards of whether damages are appropriate. The Competition and Diversity in Video Programming attorney’s fees. We seek comment on Commission’s aspirational deadline for Distribution and Carriage, First Report and Order, whether the Commission has legal resolving the program access complaint 8 FCC Rcd 3359, 3392, para. 81 (1993) (‘‘1993 authority to make awards of punitive Program Access Order’’) with Implementation of applies solely to the program access Sections 12 and 19 of the Cable Television damages. Section 616(a)(5) of the Act violation determination and not to the Consumer Protection and Competition Act of 1992: directs the Commission to adopt damages determination. The Development of Competition and Diversity in Video regulations that ‘‘provide for Commission has explained that the Programming Distribution and Carriage, appropriate penalties.’’ Courts have Memorandum Opinion and Order on appropriate date from which damages Reconsideration of the First Report and Order, 10 recognized that ‘‘penalties’’ may take accrue is the date on which the FCC Rcd 1902, 1910–11, para. 17 (1994) (‘‘1994 various forms, including punitive violation first occurred, and that the Program Access Reconsideration Order’’). damages, fines, and statutory penalties, burden is on the complainant to 16 all of which are aimed at deterring See 1994 Program Access Reconsideration establish this date. Moreover, based on Order, 10 FCC Rcd at 1910–11, para. 17; see also wrongful conduct. We note, however, the one-year limitations period for 1998 Program Access Order, 13 FCC Rcd at 15831– that the Commission previously 32, paras. 14–15 (reaffirming the Commission’s bringing program access complaints, the declined to allow for the award of statutory authority to award damages in program Commission has explained that it will punitive damages in program access access cases). Although the Commission held that not entertain damages claims asserting it had authority to award damages in program cases.17 We seek comment on whether injury pre-dating the complaint by more access cases, it initially elected not to exercise that there is any basis for awarding punitive authority, finding that other sanctions available to than one year. In cases in which the damages in program carriage cases but the Commission were sufficient to deter entities complainant has submitted a damages from violating the program access rules. See 1994 not in program access cases. To what Program Access Reconsideration Order, 10 FCC Rcd extent would the potential award of calculation and the Media Bureau at 1911, para. 18. The Commission later adopted approves or modifies the calculation, rules allowing for the award of damages in program punitive damages help to deter program carriage violations and promote the defendant is required to compensate access cases, stating that ‘‘[r]estitution in the form the complainant as directed in the of damages is an appropriate remedy to return settlement of any disputes? improper gains.’’ 1998 Program Access Order, 13 16. We note that the Commission has Media Bureau’s order. In cases in which FCC Rcd at 15833, para. 17. We note that the also adopted specific procedures for the complainant has submitted a Commission has held that section 325(b)(3)(C) of damages computation methodology and the Act pertaining to retransmission consent requesting and awarding damages in negotiations, which does not contain the same program access cases. We propose to the Media Bureau approves or modifies ‘‘appropriate remedies’’ language, does not apply these same procedures to the the methodology, the parties are authorize the award of damages. See required to negotiate in good faith to Implementation of the Satellite Home Viewer award of damages in the program Improvement Act of 1999; Retransmission Consent carriage context. While we briefly reach an agreement on the exact amount Issues: Good Faith Negotiation and Exclusivity, summarize some of these procedures of damages pursuant to the First Report and Order, 15 FCC Rcd 5445, 5480, here, we encourage commenters to methodology. We seek comment on the para. 82 (2000) (‘‘We can divine no intent in section appropriateness of adopting similar 325(b)(3)(C) to impose damages for violations thereof * * *. Commenters’ reliance on the 17 The Commission based its decision to decline rules in the program carriage context. program access provisions as support for a damages to allow for the award of punitive damages in 17. We also propose to adopt similar remedy in this context is misplaced. The program access cases based on a lack of record procedures for requesting the Commission’s authority to impose damages for evidence regarding the need for this type of program access violations is based upon a statutory damages. See 1998 Program Access Order, 13 FCC application of new prices, terms, and grant of authority.’’). Rcd at 15834, para. 21. conditions in the event an adjudicator

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reaches a decision on the merits of a and conditions. In cases in which the to reach a more expeditious resolution program carriage complaint after the adjudicator approves or modifies a of the complaint. Media Bureau issues a standstill order. prevailing party’s true-up calculation, 19. To the extent the adjudicator In the Second Report and Order in MB the opposing party would be required to requests the submission of final offers, Docket No. 07–42, we adopted specific compensate the prevailing party as we seek comment on whether the procedures for the Media Bureau’s directed in the adjudicator’s order. In adjudicator should be required to select consideration of requests for a cases in which the adjudicator approves one of the parties’ final offers as the temporary standstill of the price, terms, or modifies a true-up computation remedy or whether the adjudicator and other conditions of an existing methodology, the parties would be should have the discretion to craft a programming contract by a program required to negotiate in good faith to remedy that combines elements of both carriage complainant seeking renewal of reach an agreement on the exact amount final offers or contains other terms that such a contract. If the Media Bureau of compensation pursuant to the the adjudicator finds to be appropriate. grants the temporary standstill, the rules methodology. We seek comment on this While requiring the adjudicator to select adopted provide that the adjudicator approach. one of the final offers might be more effective in encouraging the parties to ruling on the merits of the complaint D. Submission of Final Offers will apply the terms of the new submit reasonable offers and promoting agreement between the parties, if any, as 18. Among the remedies an a settlement, we expect that providing of the expiration date of the previous adjudicator can order for a program the adjudicator with the discretion to agreement. We noted that application of carriage violation is the establishment of craft a remedy combining elements of new terms may be difficult in some prices, terms, and conditions for the both final offers (e.g., the rate in one cases, such as if carriage of the video carriage of a complainant’s video offer and the contract term in the other 18 programming has continued programming. To the extent that the offer) or other terms that the adjudicator uninterrupted during resolution of the adjudicator orders this remedy, we finds to be appropriate will provide complaint as a result of the Media propose to adopt a rule providing that greater flexibility, possibly resulting in Bureau’s standstill order, but the the adjudicator will have the discretion a more appropriate remedy. We seek decision on the merits provides that the to order each party to submit their ‘‘final comment on the ramifications of each defendant MVPD may discontinue offer’’ for the rates, terms, and approach. We also seek comment on carriage. While we believe the conditions for the video programming at when the adjudicator should solicit adjudicator can address these issues on issue.19 In previous merger orders, the final offers to the extent the adjudicator a case-by-case basis in the absence of a Commission has explained that exercises the discretion to do so. As in new rule on this point, adoption of requiring parties to a programming the case of damages discussed above, specific procedures addressing dispute to submit their final offer for should the adjudicator bifurcate the compensation of the parties during the carriage and requiring the adjudicator to program carriage violation standstill period, if any, may facilitate select the offer that most closely determination from the remedy phase to the expeditious resolution of these approximates fair market value ‘‘has the facilitate the submission of final offers, issues. For example, should a defendant attractive ‘ability to induce two sides to similar to the way damages are handled MVPD that ultimately prevails on the reach their own agreement, lest they risk in program access cases? the possibility that a relatively extreme merits nonetheless be required to pay E. Mandatory Carriage Remedy for carriage during the standstill period? offer of the other side may be selected Should we assume that the previously * * *.’ ’’ We seek comment on the 20. The program carriage rules negotiated carriage fees reflected in the extent to which providing the provide that the remedy ordered by the parties’ expired agreement represent adjudicator with the discretion to Media Bureau or ALJ is effective upon reasonable compensation for the require the parties to submit final offers release of the decision, except when the carriage of the programming during the will encourage the parties to resolve adjudicator orders mandatory carriage standstill period? We propose to adopt their differences through settlement and that will require the defendant MVPD to procedures similar to those set forth will assist the adjudicator in crafting an ‘‘delete existing programming from its above for requesting damages. appropriate remedy should the parties system to accommodate carriage’’ of a Specifically, in the event the Media not settle their dispute.20 We also seek programming vendor’s video Bureau has issued a standstill order, the comment on whether submission of programming.21 In such a case, if the adjudicator after reaching a decision on final offers will enable the adjudicator defendant MVPD seeks Commission the merits may request the prevailing review of the decision, the mandatory party to submit either (i) a detailed 18 See 47 CFR 76.1302(g)(1); 1993 Program carriage remedy does not take effect computation of the fees and/or Carriage Order, 9 FCC Rcd at 2653, para. 26 unless and until the decision is upheld (‘‘Available remedies and sanctions include by the Commission. If the Commission compensation it believes it is owed forfeitures, mandatory carriage, or carriage on terms during the standstill period based on the revised or specified by the Commission.’’). This rule upholds in its entirety the relief granted new prices, terms, and conditions will now appear at § 76.1302(j)(1) once the by the adjudicator, the defendant MVPD ordered by the adjudicator (the ‘‘true-up amendments adopted in the Second Report and is required to carry the video Order in MB Docket No. 07–42 take effect. programming at issue in the complaint calculation’’); or (ii) a detailed outline of 19 See Reexamination of Roaming Obligations of the methodology used to calculate the Commercial Mobile Radio Service Providers and for an additional time period beyond fees and/or compensation it believes it Other Providers of Mobile Data Services, Second that originally ordered by the is owed during the standstill period Report and Order, FCC 11–52, para. 79 (2011) (stating that, when considering the commercial 21 See 47 CFR 76.1302(g)(1); 1993 Program based on the new prices, terms, and reasonableness of the terms and conditions of a Carriage Order, 9 FCC Rcd at 2656, para. 33 conditions ordered by the adjudicator proffered data roaming arrangement, the (discussing mandatory carriage remedy in cases (the ‘‘true-up computation Commission staff may, in resolving such a claim, ruled on by Media Bureau); id. at 2656, para. 34 methodology’’). The burden of proof require both parties to provide to the Commission (discussing mandatory carriage remedy in cases their best and final offers that were presented ruled on by ALJ). This rule will now appear at would rest with the party seeking during the negotiation). § 76.1302(j)(1) once the amendments adopted in the compensation during the standstill 20 See Comcast Reply at 34 n.116 (noting practical Second Report and Order in MB Docket No. 07–42 period based on the new prices, terms, concerns with a mandatory carriage remedy). take effect.

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adjudicator, equal to the amount of time above, should the adjudicator bifurcate 25. Programming vendors’ concerns that elapsed between the adjudicator’s the program carriage violation regarding retaliation, however, extend decision and the Commission’s final determination from the remedy phase to beyond the period while a complaint is decision, on the terms ordered by the allow for the defendant MVPD’s pending and beyond the particular adjudicator and upheld by the evidentiary showing on this issue? programming that is the subject of the Commission. One potential benefit of 23. We also seek comment on whether complaint. They fear that an MVPD will this rule is that it ensures that we should clarify what ‘‘deletion’’ of seek to punish a programming vendor consumers do not lose programming existing programming means in this for availing itself of the program carriage carried by their MVPD in the event a context. For example, if the mandatory rules after the complaint has been Media Bureau or ALJ decision granting carriage remedy forces the defendant resolved. Another potential form of carriage is ultimately overturned by the MVPD to move existing programming to retaliation could impact programming Commission. a less-penetrated tier but does not force vendors owning more than one video 21. As an initial matter, we seek the defendant MVPD to remove the programming network. For example, if a comment on the need for this rule. We programming from its channel line-up programming vendor owning more than note that any party can seek a stay of a entirely, should that be considered one video programming network brings Media Bureau or ALJ decision while a ‘‘deletion’’ of existing programming? a program carriage complaint involving review is pending before the While we expect that an adjudicator can one particular video programming Commission.22 Is it necessary to have a resolve such issues on a case-by-case network, the defendant MVPD could rule specific to program carriage basis,23 should we provide specific potentially take a retaliatory adverse complaints that allows only the guidance in our rules as to what carriage action involving another video defendant MVPD to avoid the need to constitutes ‘‘deletion’’? Would programming network owned by the seek a stay? Should a similar rule apply providing guidance on this issue avoid programming vendor. if a programming vendor’s video the need for the adjudicator to make a 26. We seek comment on the extent to programming will be deleted from the case-by-case determination and thereby which retaliation has occurred in the defendant MVPD’s system as a result of lead to a more expeditious and past. We note that eleven program a Media Bureau or ALJ decision, thereby consistent resolution of program carriage complaints have been filed resulting in lost video programming for carriage complaints? since the Commission adopted its consumers? For example, if the Media program carriage rules in 1993. Have Bureau grants a standstill for a F. Retaliation any of the complainants experienced complainant programming vendor 24. Programming vendors have retaliation by MVPDs? Have any other seeking renewal of an existing contract expressed concern that MVPDs will programming vendors experienced but the adjudicator rules on the merits retaliate against them for filling program retaliation by MVPDs for merely that the defendant MVPD’s decision to carriage complaints. They state that the suggesting that they might avail delete the video programming does not fear of retaliation is preventing themselves of the program carriage violate the program carriage rules, programming vendors from filing rules? We note that examples of actual should that ruling take effect only if the legitimate program carriage complaints. retaliation or threats of retaliation will decision is upheld by the Commission? As an initial matter, we note that the assist in developing a record on whether 22. To the extent that we retain standstill procedure we adopt in the and how to address concerns regarding § 76.1302(g)(1), we are concerned that Second Report and Order in MB Docket retaliation. the rule is unclear with respect to the No. 07–42 will help to prevent 27. We also seek comment on what type of showing a defendant MVPD retaliation in part while a program measures the Commission should take must make to satisfy the rule and carriage complaint is pending. If to address retaliation. As an initial thereby delay the effectiveness of the granted, the standstill will keep in place matter, we believe that retaliation may remedy. We propose to amend this rule the price, terms, and other conditions of be addressed in some cases through a to clarify that the defendant MVPD must an existing programming contract program carriage complaint alleging make a sufficient evidentiary showing to during the pendency of the complaint, discrimination on the basis of the adjudicator demonstrating that it thus preventing the defendant MVPD affiliation. For example, if an MVPD would be required to delete existing from taking adverse action during this takes an adverse carriage action against programming to accommodate the video time against the programming vendor a programming vendor after the vendor programming at issue in the complaint. with respect to the video programming files a complaint, the programming As in the case of damages and at issue in the complaint. We seek vendor may have a legitimate submission of final offers discussed comment on whether there are any discrimination complaint if it can circumstances in the program carriage establish a prima facie case of 22 See Brunson Commc’ns, Inc. v. RCN Telecom. context in which the Commission’s discrimination on the basis of Servs. Inc., Memorandum Opinion and Order, 15 affiliation, such as by showing that the FCC Rcd 12883 (CSB 2000) (granting stay request authority to issue temporary standstill pending action on Application for Review); see also orders is statutorily or otherwise defendant MVPD treated its similarly 47 CFR 76.10(c)(2). To obtain a stay, a petitioner limited.24 situated, affiliated video programming must demonstrate that (i) it is likely to prevail on differently.25 If the case proceeds to the the merits; (ii) it will suffer irreparable harm absent 23 a stay; (iii) grant of a stay will not substantially See Tennis Channel HDO, 25 FCC Rcd at harm other interested parties; and (iv) the public 14163, para. 24 n.120 (directing the ALJ to (‘‘The House report [to section 624(f)] suggests that interest favors grant of a stay. See, e.g., Virginia determine whether a remedy requiring a defendant Congress thought a cable company’s owners, not Petroleum Jobbers Ass’n v. FPC, 259 F.2d 921, 925 MVPD to carry the complainant programming government officials, should decide what sorts of (DC Cir. 1958); see also Washington Metropolitan vendor’s video programming on a specific tier or to programming the company would provide. But it Area Transit Comm’n v. Holiday Tours, 559 F.2d a specific number or percentage of subscribers does not suggest a concern with regulations of cable 841 (DC Cir. 1977) (clarifying the standard set forth would ‘‘require [the defendant MVPD] to delete that are not based on the content of cable in Virginia Petroleum Jobbers Ass’n v. FPC); existing programming from its system to programming, and do not require that particular Hispanic Information and Telecomm. Network, Inc., accommodate carriage of’’ the complainant programs or types of programs be provided.’’). 20 FCC Rcd 5471, 5480, para. 26 (2005) (affirming programming vendor’s video programming). 25 See Second Report and Order in MB Docket Bureau’s denial of request for stay on grounds 24 See NCTA July 1 2011 Ex Parte Letter at 1 No. 07–42, para. 14 (discussing evidence required applicant failed to establish four criteria (citing 47 U.S.C. 544(f)(1)). But see United Video, to establish a prima face case of a violation of the demonstrating stay is warranted). Inc. v. FCC, 890 F.2d 1173, 1189 (DC Cir. 1989) Continued

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merits, the defendant MVPD obviously program carriage regulations ‘‘shall (other than the action at issue in the could not defend its action by claiming provide for,’’ ‘‘shall contain,’’ or ‘‘shall initial program carriage complaint) that it was motivated by a desire to retaliate include.’’ While there is no specific occurs while a program carriage against the programming vendor. statutory provision prohibiting MVPDs complaint is pending or within two 28. Addressing retaliation through a from retaliating against programming years after the complaint is resolved on discrimination complaint, however, is vendors for filing complaints, the statute the merits? We seek comment on not useful in cases where the defendant does not preclude the Commission from whether two years would be the MVPD takes retaliatory action with adopting additional requirements appropriate time period. In establishing respect to video programming affiliated beyond the six listed in the statute. this time period, we seek to capture the with the complainant programming Thus, we believe that we have authority period during which the defendant vendor that is not similarly situated to to adopt a rule prohibiting retaliatory MVPD can reasonably be expected to video programming affiliated with the carriage practices. We seek comment on have an incentive to retaliate while at defendant MVPD. For example, a this interpretation. To the extent any the same time ensuring that we do not programming vendor owning an RSN new substantive program carriage unduly hinder the defendant MVPD’s may bring a complaint alleging that the requirement must be based on one of the legitimate carriage decisions with defendant MVPD engaged in six requirements listed in the statute, respect to the complainant programming discrimination on the basis of affiliation does the discrimination provision in vendor. by refusing to carry the RSN. The section 616(a)(3) provide the statutory 31. As discussed above, a finding of defendant MVPD could potentially basis for an anti-retaliation rule? For a prima facie violation does not resolve retaliate by refusing to carry a news example, we foresee that only a the merits of the case nor does it mean channel affiliated with the complainant programming vendor that is unaffiliated that the defendant has violated the programming vendor. To the extent the with the defendant MVPD would bring Commission’s rules. Rather, it means defendant MVPD is not affiliated with a a program carriage complaint against that the complainant has alleged news channel, however, the that MVPD; thus, absent such non- sufficient facts that, if left unrebutted, programming vendor would be unable affiliation, a complaint would not have may establish a violation of the program to establish a prima facie case of been filed and the MVPD would have no carriage rules and thus parties may discrimination on the basis of affiliation basis to retaliate. Thus, does an MVPD’s proceed to discovery (if necessary) and by showing that the defendant MVPD decision to take a retaliatory adverse a decision on the merits. We do not treated its own affiliated news channel carriage action against a programming believe that an anti-retaliation rule differently. To address this concern, we vendor specifically because the should apply to the defendant MVPD’s seek comment on whether we should programming vendor availed itself of action at issue in the initial program adopt a new rule prohibiting an MVPD the program carriage rules amount to carriage complaint. For example, if the from taking an adverse carriage action ‘‘discrimination on the basis of action at issue in the initial program against a programming vendor because affiliation or non-affiliation’’? To the carriage complaint involves the the programming vendor availed itself extent our authority to address defendant MVPD’s decision not to of the program carriage rules. The retaliation is based on the renew a contract for the complainant adverse carriage action could involve discrimination provision in section programming vendor’s RSN and a any video programming owned by or 616(a)(3), would the complainant also standstill has not been granted, the affiliated with the complainant need to establish that the retaliatory action of the defendant MVPD to delete programming vendor, not just the adverse carriage action ‘‘unreasonably the RSN while the complaint is pending particular video programming subject to restrain[ed] the ability of [the would not be a prima facie violation of the initial complaint that triggered the programming vendor] to compete the anti-retaliation rule. If, however, the retaliatory action. To the extent we fairly’’? Does this limit the practical defendant MVPD proceeds to move the adopt the automatic document effect of the anti-retaliation provision by complainant programming vendor’s production process described above, we authorizing MVPDs to take retaliatory news channel to a less-penetrated tier seek comment on what documents actions that fall short of an unreasonable after the filing of a complaint pertaining might be considered sufficiently restraint on the programming vendor’s to an RSN, this may establish a prima relevant to a retaliation claim to include ability to compete fairly? facie violation under this rule. We seek in the automatic document production comment on the extent to which such a 30. We seek comment on the practical list. rule would encourage the filing of impact of an anti-retaliation provision 29. We seek comment on the extent of frivolous program carriage complaints given that acts of retaliation are unlikely our authority to adopt an anti-retaliation by programming vendors hoping to take to be overt. That is, while an MVPD provision in light of the fact that this advantage of the anti-retaliation rule to could potentially take a retaliatory program carriage practice is not prevent MVPDs from taking adverse adverse carriage action against a explicitly mentioned in section 616. We carriage actions based on legitimate programming vendor following the note that section 616 contains broad business concerns. As set forth above, filing of a complaint, it is highly language directing the Commission to the rule would apply to adverse carriage doubtful that the defendant MVPD will ‘‘establish regulations governing actions while a complaint is pending or inform the programming vendor that its program carriage agreements and related within two years after the complaint is action was motivated by retaliation. We practices between cable operators or resolved on the merits. A frivolous seek comment on how programming other [MVPDs] and video programming complaint would likely be dismissed at vendors could bring legitimate vendors’’ and then lists six specific the prima facie stage, which the Media retaliation complaints in the absence of requirements that the Commission’s Bureau must resolve within no more direct evidence of retaliation. For than approximately 140 days after the discrimination provision). The complaint must also example, should we establish as a prima complaint is filed.26 Will this limited contain evidence that the defendant MVPD’s facie violation of the anti-retaliation conduct has the effect of unreasonably restraining the ability of the complainant programming vendor rule any adverse carriage action taken 26 See Second Report and Order in MB Docket to compete fairly. See Second Report and Order in by a defendant MVPD against a No. 07–42, para. 20 (requiring the Media Bureau to MB Docket No. 07–42, para. 15. complainant programming vendor release a prima facie determination within 60

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time period, along with our existing negotiating tactics of non-vertically MVPDs in the program carriage context. prohibition on frivolous complaints, integrated MVPDs with respect to As discussed above, we seek comment deter the filing of frivolous complaints unaffiliated programming vendors. on the extent of our authority to adopt intended to wrongly invoke the anti- Accordingly, we believe it is a new substantive program carriage rule, retaliation rule as a shield against appropriate to limit a good faith such as a good faith requirement, legitimate MVPD business decisions? negotiation requirement to vertically considering that this requirement is not integrated MVPDs only.30 Second, we G. Good Faith Negotiation Requirement explicitly mentioned in section 616. believe that this good faith requirement Does the general grant of rulemaking 32. We seek comment on whether to should extend only to negotiations authority under section 616 provide a adopt a rule requiring vertically involving video programming that is sufficient statutory basis for adopting integrated MVPDs to negotiate in good similarly situated to video programming this requirement? To the extent any new faith with an unaffiliated programming affiliated with the MVPD (or with substantive program carriage vendor with respect to video another MVPD). That is, to the extent requirement must be based on one of the programming that is similarly situated that a vertically integrated MVPD is six requirements listed in the statute, to video programming affiliated with the engaged in negotiations with an MVPD (or with another MVPD 27). Some does the discrimination provision in unaffiliated programming vendor section 616(a)(3) provide statutory programming vendors claim that involving video programming that is not authority for a good faith negotiation MVPDs do not overtly deny requests for similarly situated to video programming requirement? Allegations that a carriage; rather, they claim that MVPDs affiliated with the MVPD (or with vertically integrated MVPD has not effectively deny carriage and harm another MVPD), there would appear to programming vendors in more subtle be no basis to assume that the MVPD negotiated in good faith could form the forms, such as failing to respond to would seek to favor its own video basis of a legitimate program carriage carriage requests in a timely manner, programming (or video programming discrimination complaint. For example, simply ignoring requests to negotiate for affiliated with another MVPD) over the to the extent that a vertically integrated carriage, making knowingly inadequate unaffiliated programming vendor’s MVPD carries affiliated video counter-offers, or failing to engage in video programming on the basis of programming but refuses to engage in or renewal negotiations until just prior to ‘‘affiliation’’ as opposed to legitimate needlessly delays negotiations with a the expiration of an existing business reasons. We seek comment on programming vendor with respect to agreement.28 We seek comment on the these views. Is this approach workable similarly situated, unaffiliated video extent to which these concerns are given that the concept of ‘‘similarly programming, this may reflect legitimate and widespread and whether situated’’ is a subjective standard? That discrimination on the basis of they would be addressed through the is, will an MVPD that does not want to affiliation. To the extent that such a explicit good faith negotiation carry the video programming simply claim could already be addressed requirement described here for claim that it does not have to negotiate through a discrimination complaint, is it vertically integrated MVPDs.29 because the video programming is not necessary to codify the requirement 33. We note two important limitations ‘‘similarly situated,’’ leaving the described above that vertically on this good faith requirement. First, we programming vendor with claims for integrated MVPDs negotiate in good are not aware of concerns regarding the both discrimination and failure to faith? Would codifying this requirement negotiate in good faith, but not nonetheless provide guidance to calendar days after the close of the 80-calendar-day materially better off than if it just had programming vendors and vertically pleading cycle on a program carriage complaint). the discrimination claim? Will this 27 As discussed below, we seek comment on integrated MVPDs alike that action or whether MVPDs favor not only their own affiliated requirement encourage vertically inaction by a vertically integrated programming vendors but also programming integrated MVPDs to negotiate in good MVPD that effectively amounts to a vendors affiliated with other MVPDs. See infra faith with both similarly situated and denial of carriage is cognizable under paras. 36–42. To the extent this is the case, we seek non-similarly situated video comment below on whether a vertically integrated the program carriage rules as a form of MVPD must negotiate in good faith with an programming to avoid violating the discrimination on the basis of unaffiliated programming vendor with respect to good faith requirement? Will such a affiliation? To the extent that our video programming that is similarly situated to requirement unreasonably interfere with authority to adopt the good faith video programming affiliated with the MVPD or negotiations and limit the ability of with another MVPD. See infra para. 41. negotiation requirement described 28 See BTNC Comments at 11–12; Outdoor vertically integrated MVPDs to pursue above would be based on the legitimate negotiation tactics? Channel Nov. 16, 2007 Ex Parte Letter at 1 (stating discrimination provision in section that MVPD-imposed negotiating delays after a prior 34. We also seek comment on the contract has expired put programmers in the extent of our authority to adopt this 616(a)(3), would the complainant also position of having to accept uncertain, month-to- explicit good faith negotiation need to establish that the adverse month carriage arrangements that makes it difficult carriage action ‘‘unreasonably to invest in content); Hallmark Channel Nov. 20 Ex requirement for vertically integrated Parte Letter at 1 (‘‘[S]ome MVPDs frequently fail to restrain[ed] the ability of [the make carriage offers or respond to an independent 30 See Letter from American Cable Association et programming vendor] to compete programmer’s offers until just before an existing al. to Marlene H. Dortch, Secretary, FCC, MB Docket fairly’’? Does this limit the practical agreement is set to expire, effectively turning post- No. 07–42 (Dec. 10, 2008) at 2 (stating that non- effect of a good faith negotiation expiration carriage into a month-to-month vertically integrated operators do not have any proposition.’’); see id. (stating that some MVPDs incentive to engage in conduct that would requirement by authorizing vertically make ‘‘knowingly inadequate offers that give the unreasonably restrain the ability of independent integrated MVPDs to engage in bad faith superficial appearance of good faith negotiation but programmers to compete that would warrant tactics that fall short of an unreasonable that are not intended or expected to be accepted, changing existing rules to allow programmers to file restraint on the programming vendor’s let alone thought responsive to the programmers’ discrimination or good faith complaints against offers’’ and that such practices undercut the ability them); Letter from John D. Goodman, Broadband ability to compete fairly? To the extent of the programmer to attract investors). Service Providers Association, to Marlene H. we adopt the automatic document 29 See NFL Enterprises Comments at 7 (urging the Dortch, Secretary, FCC, MB Docket No. 07–42 (Dec. production process described above, we Commission to impose ‘‘on MVPDs the same duty 9, 2008) at 2–3 (stating that non-vertically seek comment on what documents to bargain in good faith that currently applies to integrated operators have ‘‘no history of their retransmission consent negotiations with discriminating against independent programmers, might be considered sufficiently broadcasters’’). nor have any incentive or ability to do so’’). relevant to a good faith claim to include

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in the automatic document production alleging discrimination that favors an legitimate business reasons. list. ‘‘affiliated’’ programming vendor to Accordingly, we believe it is 35. To the extent we adopt the provide evidence that the defendant appropriate to limit this interpretation explicit good faith negotiation MVPD has an attributable interest in the of section 616(a)(3) to vertically requirement for vertically integrated allegedly favored ‘‘affiliated’’ integrated MVPDs only. We seek MVPDs described above, should we programming vendor.33 Commenters, comment on this proposed limitation. establish specific guidelines for however, have claimed that vertically 37. We note that the Commission assessing good faith negotiations? For integrated MVPDs favor not only their previously addressed a similar issue in example, in the retransmission consent own affiliated programming vendors but connection with the channel occupancy context, the Commission has established also programming vendors affiliated limit set forth in section 613(f)(1)(B) of seven objective good faith negotiation with other MVPDs.34 For example, the Act, which requires the Commission standards, the violation of which is vertically integrated MVPD A might to establish ‘‘reasonable limits on the considered a per se violation of the good treat a news channel affiliated with number of channels on a cable system faith negotiation obligation.31 Should MVPD B more favorably than an that can be occupied by a video the Commission consider the same unaffiliated news channel in exchange programmer in which a cable operator standards to determine whether a for MVPD B’s reciprocal favorable has an attributable interest.’’ The vertically integrated MVPD has treatment of MVPD A’s affiliated sports Commission explained that this negotiated in good faith in the program channel. In this case, the unaffiliated language is ‘‘not entirely clear because carriage context? Moreover, in the news channel would be unable to it can also be read as applying to retransmission consent context, even if provide evidence that the defendant carriage of video programmers affiliated the seven standards are met, the MVPD (MVPD A) has an attributable with the particular cable operator or to Commission may consider whether, interest in the allegedly favored carriage of any vertically integrated based on the totality of the programming vendor (the news channel cable programmer on any cable system.’’ circumstances, a party failed to affiliated with MVPD B) as required The Commission concluded that the negotiate retransmission consent in under the 1993 Program Carriage Order. ‘‘most reasoned approach’’ was to 32 good faith. Should a similar policy We seek comment on whether we interpret this language ‘‘to apply such apply to vertically integrated MVPDs in should address such situations by limits only to video programmers that the program carriage context? interpreting the discrimination are vertically integrated with the H. Scope of the Discrimination provision in section 616(a)(3) more particular cable operator in question.’’ Provision broadly to preclude a vertically In adopting this interpretation, the integrated MVPD from discriminating Commission also concluded that ‘‘cable 36. In the 1993 Program Carriage on the basis of a programming vendor’s Order, the Commission interpreted the operators have very little incentive to lack of affiliation with another MVPD. favor video programming services that discrimination provision in section Similar to the discussion above 616(a)(3) to require a complainant are affiliated solely with a rival MSO’’ regarding the good faith requirement, and absent ‘‘significant empirical we are not aware of concerns that a non- evidence of existing discriminatory 31 See 47 CFR 76.65(b)(1) (The seven actions or vertically integrated MVPD would have practices that violate a duty to negotiate practices, we see no useful purpose in retransmission consent agreements in good faith an incentive to favor an MVPD-affiliated limiting the ability of cable operators to are: ‘‘(i) Refusal by a Negotiating Entity to negotiate programming vendor over an carry programming affiliated with a retransmission consent; (ii) Refusal by a Negotiating unaffiliated programming vendor based rival MSO.’’ In 2008, however, the Entity to designate a representative with authority on reasons of ‘‘affiliation’’ as opposed to to make binding representations on retransmission Commission adopted an FNPRM seeking consent; (iii) Refusal by a Negotiating Entity to meet comment on this conclusion in light of 33 and negotiate retransmission consent at reasonable See 1993 Program Carriage Order, 9 FCC Rcd subsequent empirical studies as well as times and locations, or acting in a manner that at 2654, para. 29 (‘‘For complaints alleging unreasonably delays retransmission consent discriminatory treatment that favors ‘affiliated’ technological and marketplace negotiations; (iv) Refusal by a Negotiating Entity to programming vendors, the complainant must developments. In doing so, the put forth more than a single, unilateral proposal; (v) provide evidence that the defendant has an Commission tentatively concluded to attributable interest in the allegedly favored Failure of a Negotiating Entity to respond to a ‘‘expand the channel occupancy limit to retransmission consent proposal of the other party, programming vendor, as set forth in § 76.1300(a).’’); including the reasons for the rejection of any such see also 47 CFR 76.1300(a) (‘‘For purposes of this include video programming networks proposal; (vi) Execution by a Negotiating Entity of subpart, entities are affiliated if either entity has an owned by or affiliated with any cable an agreement with any party, a term or condition attributable interest in the other or if a third party operator,’’ noting that such an of which, requires that such Negotiating Entity not has an attributable interest in both entities.’’); enter into a retransmission consent agreement with Review of the Commission’s Cable Attribution interpretation is consistent with section any other television broadcast station or Rules, Report and Order, 14 FCC Rcd 19014, 19063, 628(c)(2)(D) of the Act, which prohibits multichannel video programming distributor; and para. 132 n.333 (1999) (amending definition of any cable operator from entering into an (vii) Refusal by a Negotiating Entity to execute a ‘‘affiliated’’ in the program carriage rules to be exclusive contract with any cable- written retransmission consent agreement that sets consistent with definition of this term in other cable forth the full understanding of the television rules). affiliated programmer. broadcast station and the multichannel video 34 See Hallmark Channel Reply at 8 n.16 (‘‘In one 38. We seek comment on the extent to programming distributor.’’). We note that we are important respect, an MVPD’s incentive to which there are real-world examples or currently considering revisions to these rules. See discriminate against its competitor MVPDs is reliable empirical studies demonstrating Retransmission Consent NPRM, 26 FCC Rcd at reduced. Specifically, an MVPD can have an 2729–35, paras. 20–30. incentive to advantage the affiliated services of that vertically integrated MVPDs tend to 32 See 47 CFR 76.65(b)(2) (‘‘In addition to the other vertically-integrated MVPDs, over favor programming vendors affiliated standards set forth in § 76.65(b)(1), a Negotiating independent services, in exchange for favorable with other MVPDs. We note that the Entity may demonstrate, based on the totality of the treatment when the first MVPD seeks to obtain United States Court of Appeals for the circumstances of a particular retransmission carriage of its own affiliated services by the second consent negotiation, that a television broadcast MVPD. Like an MVPD’s incentive to favor its own DC Circuit previously struck down the station or multichannel video programming affiliated services, this behavior has a dramatic and Commission’s horizontal cable distributor breached its duty to negotiate in good anticompetitive impact on independent ownership cap based in part on the faith as set forth in 76.65(a).’’). We note that we are programmers’ ability to bargain for fair carriage Commission’s failure to provide support currently considering revisions to these rules. See terms.’’); see id. at 20; NAMAC Reply at 16 Retransmission Consent NPRM, 26 FCC Rcd at (referring to the ‘‘common practice of cable for the concept that cable operators 2735–37, paras. 31–33. operators to swap programming with each other’’). ‘‘have incentives to agree to buy their

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programming from one another.’’ 35 In by discriminating on the basis of programming operator does not adopting a new horizontal ownership ‘‘affiliation or non-affiliation’’ of discriminate against an unaffiliated cap in 2008, the Commission concluded programming vendors. The terms video programming vendor in which it that it ‘‘lack[ed] evidence to draw ‘‘unaffiliated,’’ ‘‘affiliation,’’ and ‘‘non- does not hold a financial interest.’’ 39 definitive conclusions regarding the affiliation’’ are not defined in section How should we interpret other language likelihood that cable operators will 616. These terms could be interpreted in the legislative history of the 1992 behave in a coordinated fashion.’’ In an narrowly as in the 1993 Program Cable Act? For example, one of the accompanying FNPRM pertaining to the Carriage Order to prohibit a vertically stated findings of the 1992 Cable Act is Commission’s channel occupancy integrated MVPD only from that ‘‘cable operators have the incentive limits, the Commission sought comment discriminating on the basis of and ability to favor their affiliated on the reliability of certain studies and ‘‘affiliation or non-affiliation’’ in a programmers. This could make it more criticisms thereof, including one study manner that favors its own affiliated difficult for noncable-affiliated based on data from 1999 finding that programming vendor, but would not programmers to secure carriage on cable ‘‘vertically integrated MSOs are more prevent a vertically integrated MVPD systems.’’ This language is unclear as to likely than non-vertically integrated from discriminating on the basis of whether Congress was referring to the MSOs to carry the start-up basic cable ‘‘affiliation or non-affiliation’’ in a incentives of individual cable operators networks of other MSOs.’’ 36 We seek manner that favors a programming to favor their own affiliated comment on how these studies or any vendor affiliated with another MVPD. programmers, or whether Congress was other studies, including studies based Alternatively, these terms might be referring to the incentives of cable on more recent data, either support or interpreted more broadly to prevent a operators as a whole to favor cable- refute the position that vertically vertically integrated MVPD from affiliated programmers, both their own integrated MVPDs tend to favor discriminating on the basis of affiliates and those affiliated with other programming vendors affiliated with ‘‘affiliation or non-affiliation’’ in a cable operators.40 other MVPDs over unaffiliated manner that favors any programming 41. We also seek comment on the programming vendors. Is there sufficient vendor affiliated with any MVPD. We practical implications of an evidence to warrant allowing note that one cable operator has interpretation of section 616(a)(3) that programming vendors to make a case- previously advanced a broad would preclude a vertically integrated by-case showing through the program interpretation of section 616(a)(3), MVPD from discriminating on the basis carriage complaint process that a stating that this provision precludes of a programming vendor’s lack of vertically integrated MVPD has collusion among cable operators.37 affiliation with another MVPD. For discriminated on the basis of a 40. We seek comment on which example, how should we amend the programming vendor’s lack of affiliation interpretation is more consistent with requirements for establishing a prima with another MVPD? Congressional intent. Is the broad facie case of discrimination on the basis 39. We also seek comment on whether interpretation more consistent with of affiliation in the absence of direct it is reasonable to interpret section Congress’s goal to ensure that cable evidence? Should we provide that the 616(a)(3) to preclude a vertically operators provide the ‘‘widest possible complaint must contain evidence that integrated MVPD from discriminating diversity of information sources and the complainant provides video on the basis of a programming vendor’s services to the public’’ 38 as well as with programming that is similarly situated lack of affiliation with another MVPD. the program access requirements, which to video programming provided by a Section 616(a)(3) requires the prohibit exclusive contracts and programming vendor affiliated with the Commission to adopt regulations that discriminatory conduct between a cable defendant MVPD or with another prevent an MVPD from engaging in operator and any cable-affiliated MVPD? Should we also require the conduct that unreasonably restrains the programmer, not just its own affiliated complainant to provide evidence that ability of ‘‘an unaffiliated video programmer? Is the narrow the defendant MVPD is vertically programming vendor’’ to compete fairly interpretation more consistent with integrated? We also seek comment on certain language in the legislative how this interpretation of section 35 Implementation of section 11(c) of the Cable history of the 1992 Cable Act? For 616(a)(3) will impact the proposed good Television Consumer Protection and Competition example, language in the House Report faith negotiation requirement for Act of 1992, Third Report and Order, 14 FCC Rcd states that section 616 ‘‘was crafted to vertically integrated MVPDs described 19098, 19116, para. 43 (1999) (‘‘Third Report and Order’’), rev’d and remanded in part and aff’d in ensure that a multichannel video above. Should the rule provide that a part, Time Warner Entertainment Co. v. FCC, 240 vertically integrated MVPD must F.3d 1126, 1132 (DC Cir. 2001) (‘‘The Commission 37 In opposing the horizontal cable ownership negotiate in good faith with an never explains why the vertical integration of MSOs cap, Comcast Corporation has stated that ‘‘there are unaffiliated programming vendor with gives them ‘mutual incentive to reach carriage alternative, better tailored legal remedies that could decisions beneficial to each other,’ what may be the be relied upon to reduce the risk of collusion, even respect to video programming that is firms’ ‘incentives to buy * * * from one another,’ if such a risk were shown to exist. The or what the probabilities are that firms would Commission’s program carriage rules, which 39 H.R. Rep. No. 102–628 (1992), at 110 (emphasis engage in reciprocal buying (presumably to reduce explicitly prohibit a cable operator from added); see also S. Rep. No. 102–92 (1991), at 25, each other’s average programming costs).’’ (quoting ‘discriminating in video programming distribution reprinted in 1992 U.S.C.C.A.N. 1133, 1158 (‘‘For Third Report and Order, 14 FCC Rcd at 19116, para. on the basis of affiliation or nonaffiliation,’ already example, the cable operator might give its affiliated 43)). proscribe collusive behavior.’’ See Supplemental programmer a more desirable channel position than 36 See Cable Ownership Rules FNPRM, 23 FCC Comments of Comcast, MM Docket No. 92–264 another programmer, or even refuse to carry other Rcd at 2194, paras. 139–141 (citing Jun-Seok Kang, (February 14, 2007), at 15 (citing 47 U.S.C. 536(a)(3) programmers.’’) (emphasis added). Reciprocal Carriage of Vertically Integrated Cable and 47 CFR 76.1301(c)) (emphasis in original). 40 See S. Rep. No. 102–92 (1991), at 25, reprinted Networks: An Empirical Study (‘‘Kang Study’’)); see 38 47 U.S.C. 521(4); see also 1992 Cable Act, in 1992 U.S.C.C.A.N. 1133, 1158 (‘‘vertical also id. at 2194, para. 141 (seeking comment on section 2(a)(5) (expressing concern regarding the integration gives cable operators the incentive and whether ‘‘Kang’s study show[s] that a more inability of unaffiliated programming vendors to ability to favor their affiliated programming extended form of vertical foreclosure exists, based secure carriage); see also 1993 Program Carriage services’’) (emphasis added); see id. at 27, reprinted on ‘reciprocal carriage’ of integrated programming, Order, 9 FCC Rcd at 2643, para. 2 (noting Congress’s in 1992 U.S.C.C.A.N. 1133, 1160 (‘‘To ensure that in which a coalition of cable operators unfairly concern in passing the 1992 Cable Act that cable operators do not favor their affiliated favor each others’ affiliated programming’’). We unaffiliated programming vendors could not obtain programmers over others, the legislation bars cable note that the Kang Study states that it is based on carriage on the same favorable terms as vertically operators from discriminating against unaffiliated data from 1999. See Kang Study at 13. integrated programming vendors). programmers.’’) (emphasis added).

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similarly situated to video programming We also seek comment on the extent to review of these cases, however, the affiliated with the MVPD or with which MVPDs are affiliated with ‘‘video Commission found no reason to address another MVPD? We also seek comment programming vendors’’ that are not this issue because the facts on how this interpretation of section necessarily programming networks. Are demonstrated that the defendant would 616(a)(3) will impact discovery. Should the protections afforded by section 616 prevail even assuming that the burdens we expect that the programming vendor limited to programming networks? 43 If shifted to the defendant.45 affiliated with the non-defendant MVPD not, do our current rules need to be 44. We propose to codify in our rules will have relevant information, such as amended to address concerns that which party bears the burdens of contracts with other MVPDs? For cases MVPDs favor affiliated content over production and persuasion in a program decided on the merits by the Media non-affiliated content for other than carriage discrimination case after the Bureau, should our rules specify legitimate business reasons? Should our complainant has established a prima procedures for requesting that the Media rules be amended to better address facie case. We seek comment on two Bureau issue a subpoena pursuant to discrimination against a video alternative frameworks for assigning section 409 of the Act to compel a third- programming vendor that seeks to these burdens: The program access party affiliated programming vendor to distribute its own content, such as discrimination framework and the participate in discovery? 41 sports, movie or other programming, in intentional discrimination framework. 42. In addition to the foregoing, we order to favor similar content associated Under the program access seek comment on whether to broaden with the MVPD? discrimination framework, after a the definition of ‘‘affiliated’’ and complainant establishes a prima facie ‘‘attributable interest’’ in § 76.1300 of I. Burden of Proof in Program Carriage case of discrimination based on either the Commission’s rules to reflect Discrimination Cases direct or circumstantial evidence, the changes in the marketplace. These rules 43. After a complainant establishes a burdens of production and persuasion focus on the extent to which a prima facie case of program carriage shift to the defendant to establish programming vendor and an MVPD discrimination, the case proceeds to a legitimate and non-discriminatory have common ownership or decision on the merits. Only two reasons for its carriage decision.46 management.42 Are there other kinds of program carriage cases have been Under the intentional discrimination relationships between a programming decided on the merits to date. In neither framework, the shifting of burdens vendor and an MVPD, other than those case was the Commission required to involving common ownership or decide the issue of which party bears prima facie case bears the burden of proceeding management, that should nonetheless be the burdens of production and with the introduction of evidence and the burden considered ‘‘affiliation’’ under our of proof). The ALJ also concluded that the persuasion after the complainant allocation of the burden of proof was immaterial to rules? For example, to the extent that a establishes a prima facie case. In MASN the decision because ‘‘[w]hatever the allocation of programming vendor and an MVPD v. Time Warner Cable, an arbitrator burdens, the preponderance of the evidence, have entered into a contractual determined that the burdens shift to the viewed in its entirety, demonstrates that the relationship that requires carriage of defendant after the complainant defendants never violated section 616 of the Act or commonly owned channels and § 76.1301(c) of the rules.’’ See id. at 12997, para. 62. establishes a prima facie case. 45 See MASN v. Time Warner Cable, 25 FCC Rcd adversely affects the ability of other Conversely, in WealthTV, an ALJ ruled at 18105, para. 11 (‘‘We need not, and do not, programming vendors to obtain carriage, that the burdens remain with the address in this decision the issue of the appropriate should this relationship be considered complainant after the complainant legal framework, however, because we find that ‘‘affiliation’’ under the program carriage 44 TWC would prevail under either framework. That establishes a prima facie case. On is, even assuming that the burdens of production rules? In addition, we seek comment on and persuasion shift to TWC to establish legitimate the extent to which MVPDs are making 43 Section 616 defines the term ‘‘video and non-discriminatory reasons for its carriage investments in programming vendors or programming vendor’’ broadly as ‘‘a person engaged decision after MASN establishes a prima facie case sports teams that were not common in the production, creation, or wholesale of discrimination, we find that TWC prevails distribution of video programming for sale.’’ 47 because it has established legitimate reasons for its when the 1992 Cable Act was enacted U.S.C. 536(b). The Act defines ‘‘video carriage decision that are borne out by the record and that may not be considered programming’’ as ‘‘programming provided by, or and are not based on the programmer’s affiliation ‘‘affiliation’’ under our current rules but generally considered comparable to programming or non-affiliation.’’); WealthTV Commission Order that might nonetheless provide the provided by, a television broadcast station.’’ 47 at para. 18 (‘‘[W]e need not decide here whether the U.S.C. 522(20). The Senate Report accompanying ALJ properly allocated the burdens. * * * We MVPD with an incentive to favor certain the 1992 Cable Act, however, appears to indicate conclude that the defendants would have prevailed programming vendors for other than that the term ‘‘video programmer’’ includes only even if they had been required to carry the burdens legitimate business reasons. To the networks, and not program suppliers. S. Rep. No. of production and proof, as WealthTV contends was extent this is a concern, how should our 102–92 (1991), at 73, reprinted in 1992 U.S.C.C.A.N. proper. Accordingly, we need not consider whether rules be amended to address this issue? 1133, 1206 (‘‘The term ‘video programmer’ means the burdens were properly allocated. * * *’’). a person engaged in the production, creation, or 46 See 1993 Program Access Order, 8 FCC Rcd at wholesale distribution of a video programming 3416, para. 125 (‘‘When filing a complaint, the 41 See 47 U.S.C. 409. We note that the hearing service for sale. This term applies to those video burden is on the complainant MVPD to make a rules applicable to ALJs contain procedures for programmers which enter into arrangements with prima facie showing that there is a difference requesting and issuing subpoenas. See 47 CFR cable operators for carriage of a programming between the terms, conditions or rates charged (or 1.331–340. service. For example, the term ‘video programmer’ offered) to the complainant and its competitor by 42 See 47 CFR 76.1300(a) (‘‘Affiliated. For applies to Home Box Office (HBO) but not to those a satellite broadcast programming vendor or a purposes of this subpart, entities are affiliated if persons who sell movies and other programming to vertically integrated satellite cable programming either entity has an attributable interest in the other HBO. It applies to a pay-per-view service but not vendor that meets our attribution test.’’); id. at 3364, or if a third party has an attributable interest in both to the supplier of the programming for this para. 15 (‘‘When evaluating a discrimination entities.’’); 47 CFR 76.1300(b) (‘‘Attributable service.’’). We note, however, that section 616 of the complaint, we will initially focus on the difference interest. The term ‘attributable interest’ shall be Act uses the term ‘‘video programming vendor’’ as in price paid by (or offered to) the complainant as defined by reference to the criteria set forth in Notes stated in the House version of what became section compared to that paid by (or offered to) a competing 1 through 5 to 76.501 provided, however, that: (1) 616, not ‘‘video programmer’’ as stated in the distributor. The [defendant] program vendor will The limited partner and LLC/LLP/RLLP insulation Senate version. See 47 U.S.C. 536(b); see also H.R. then have to justify the difference using the provisions of Note 2(f) shall not apply; and (2) The Rep. No. 102–628 (1992), at 18–19, 110, 143–44. statutory factors set forth in section 628(c)(2)(B). provisions of Note 2(a) regarding five (5) percent 44 See WealthTV Recommended Decision, 24 FCC * * * In all cases, the [defendant] programmer will interests shall include all voting or nonvoting stock Rcd at 12995–96, para. 58 and 12997, para. 61 bear the burden to establish that the price or limited partnership equity interests of five (5) (reaffirming ruling of the Presiding Judge that the differential is adequately explained by the statutory percent or more.’’). program carriage complainant after establishing a factors.’’).

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varies depending upon whether the (‘‘RFA’’) 50 the Commission has a condition of carriage (the complainant relies on direct or prepared this present Initial Regulatory ‘‘exclusivity’’ provision); 56 or (iii) circumstantial evidence to establish a Flexibility Analysis (‘‘IRFA’’) unreasonably restrained the ability of an prima facie case of discrimination. If a concerning the possible significant unaffiliated video programming vendor complainant relies on direct evidence to economic impact on small entities by to compete fairly by discriminating in establish a prima facie case of the policies and rules proposed in this video programming distribution on the discrimination, the burdens of Notice of Proposed Rulemaking in MB basis of affiliation or nonaffiliation of production and persuasion shift to the Docket No. 11–131 (‘‘NPRM’’). Written vendors in the selection, terms, or defendant to establish that the carriage public comments are requested on this conditions for carriage (the decision would have been the same IRFA. Comments must be identified as ‘‘discrimination’’ provision).57 Congress absent considerations of affiliation. If a responses to the IRFA and must be filed specifically directed the Commission to complainant relies on circumstantial by the deadlines for comments provided provide for ‘‘expedited review’’ of these evidence to establish a prima facie case on the first page of the NPRM. The complaints and to provide for of discrimination, the burden of Commission will send a copy of the appropriate penalties and remedies for production (but not the burden of NPRM, including this IRFA, to the Chief any violations.58 Programming vendors persuasion) shifts to the defendant to Counsel for Advocacy of the Small have complained that the Commission’s produce evidence of legitimate and non- Business Administration (‘‘SBA’’).51 In procedures for addressing program discriminatory reasons for its carriage addition, the NPRM and IRFA (or carriage complaints have hindered the decision.47 If the defendant meets this summaries thereof) will be published in filing of legitimate complaints and have burden of production, the complainant the Federal Register.52 failed to provide for the expedited would then have the burden of B. Need for, and Objectives of, the review envisioned by Congress. persuasion to show that these reasons Proposed Rule Changes 48. The NPRM seeks comment on a are so implausible that they constitute series of proposals to revise or clarify pretexts for discrimination.48 47. In 1993, the Commission adopted the Commission’s program carriage rules implementing a provision of the rules intended to improve the 45. We seek comment on whether one 1992 Cable Act 53 pertaining to carriage of these frameworks is compelled by the Commission’s procedures for handling of video programming vendors by program carriage complaints and to language of section 616(a)(3). If not, we multichannel video programming seek comment on whether one of these further the goals of the program carriage distributors (‘‘MVPDs’’). These rules are statute. The NPRM seeks comment on frameworks is more consistent with the intended to benefit consumers by statutory scheme of section 616, its the following: promoting competition and diversity in • Modifying the program carriage underlying policy objectives, and its the video programming and video legislative history.49 We also seek statute of limitations to provide that a distribution markets (the ‘‘program complaint must be filed within one year comment on the potential ramifications carriage’’ rules).54 As required by of each framework for consumers, of the act that allegedly violated the Congress, these rules allow for the filing 59 MVPDs, and unaffiliated programming rules; of complaints with the Commission • Revising discovery procedures for vendors. alleging that an MVPD has (i) required program carriage complaint proceedings II. Procedural Matters a financial interest in a video in which the Media Bureau rules on the programming vendor’s program service merits of the complaint after discovery A. Initial Regulatory Flexibility Act as a condition for carriage (the is conducted, including expanded Analysis 55 ‘‘financial interest’’ provision); (ii) discovery procedures (also known as 46. As required by the Regulatory coerced a video programming vendor to party-to-party discovery) and an Flexibility Act of 1980, as amended provide, or retaliated against a vendor automatic document production for failing to provide, exclusive rights as process, to ensure fairness to all parties 47 See St. Mary’s Honor Center v. Hicks, 509 U.S. while also ensuring compliance with 50 502, 506 (1993) (to meet its burden of production, See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601– the expedited resolution deadlines 612, has been amended by the Small Business the defendant must clearly set forth, through the adopted in the Second Report and Order introduction of admissible evidence, reasons for the Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104–121, Title II, 110 Stat. in MB Docket No. 07–42; 60 action which, if believed by the trier of fact, would • support a finding that unlawful discrimination was 857 (1996). Permitting the award of damages in not the cause of the action in question). 51 See 5 U.S.C. 603(a). program carriage cases; 61 48 See Reeves v. Sanderson Plumbing Products, 52 See id. • Providing the Media Bureau or ALJ Inc., 530 U.S. 133, 143 (2000) (‘‘And in attempting 53 See Cable Television Consumer Protection and with the discretion to order parties to to satisfy this burden, the plaintiff—once the Competition Act of 1992, Public Law 102–385, 106 employer produces sufficient evidence to support a Stat. 1460 (1992) (‘‘1992 Cable Act’’); see also 47 submit their best ‘‘final offer’’ for the nondiscriminatory explanation for its decision— U.S.C. 536. rates, terms, and conditions for the must be afforded the ‘opportunity to prove by a 54 See Implementation of sections 12 and 19 of programming at issue in a complaint preponderance of the evidence that the legitimate the Cable Television Consumer Protection and proceeding to assist in crafting a reasons offered by the defendant were not its true Competition Act of 1992, Development of remedy; 62 reasons, but were a pretext for discrimination.’ ’’ Competition and Diversity in Video Programming • (citations omitted)). Distribution and Carriage, MM Docket No. 92–265, Clarifying the rule that delays the 49 See, e.g., H.R. Rep. No. 102–628 (1992), at 110 Second Report and Order, 9 FCC Rcd 2642 (1993) effectiveness of a mandatory carriage (‘‘The Committee intends that the term (‘‘1993 Program Carriage Order’’); see also ‘discrimination’ is to be distinguished from how Implementation of the Cable Television Consumer 56 See 47 CFR 76.1301(b); see also 47 U.S.C. that term is used in connection with actions by Protection And Competition Act of 1992, 536(a)(2). Development of Competition and Diversity in Video common carriers subject to title II of the 57 See 47 CFR 76.1301(c); see also 47 U.S.C. Programming Distribution and Carriage, MM Communications Act. The Committee does not 536(a)(3). intend, however, for the Commission to create new Docket No. 92–265, Memorandum Opinion and 58 See 47 U.S.C. 536(a)(4). standards for conduct in determining Order, 9 FCC Rcd 4415 (1994) (‘‘1994 Program 59 discrimination under this section. An extensive Carriage Order’’). The Commission’s program See NPRM in MB Docket No. 11–131 at paras. body of law exists addressing discrimination in carriage rules are set forth at 47 CFR 76.1300– 38–40. normal business practices, and the Committee 76.1302. 60 See id. at paras. 41–49. intends the Commission to be guided by these 55 See 47 CFR 76.1301(a); see also 47 U.S.C. 61 See id. at paras. 50–53. precedents.’’). 536(a)(1). 62 See id. at paras. 54–55.

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remedy until it is upheld by the ‘‘small business’’ has the same meaning from the 2002 Census, show that there Commission on review, including as the term ‘‘small business concern’’ were 3,188 firms in this category that codifying a requirement that the under the Small Business Act.71 A small operated for the entire year. Of this defendant MVPD must make an business concern is one which: (1) Is total, 3,144 had employment of 999 or evidentiary showing to the Media independently owned and operated; (2) fewer, and 44 firms had employment of Bureau or an ALJ as to whether a is not dominant in its field of operation; 1,000 employees or more. Thus under mandatory carriage remedy would result and (3) satisfies any additional criteria this category and the associated small in deletion of other programming; 63 established by the SBA.72 Below, we business size standard, the majority of • Codifying in our rules that provide a description of such small these firms can be considered small.76 retaliation by an MVPD against a entities, as well as an estimate of the 52. Cable Television Distribution programming vendor for filing a number of such small entities, where Services. Since 2007, these services program carriage complaint is feasible. have been defined within the broad actionable as a potential form of 51. Wired Telecommunications economic census category of Wired discrimination on the basis of affiliation Carriers. The 2007 North American Telecommunications Carriers; that and adopting other measures to address Industry Classification System category is defined above. The SBA has retaliation; 64 (‘‘NAICS’’) defines ‘‘Wired developed a small business size • Adopting a rule that requires a Telecommunications Carriers’’ as standard for this category, which is: All vertically integrated MVPD to negotiate follows: ‘‘This industry comprises such firms having 1,500 or fewer in good faith with an unaffiliated establishments primarily engaged in employees.77 Census Bureau data for programming vendor with respect to operating and/or providing access to 2007, which now supersede data from video programming that is similarly transmission facilities and infrastructure the 2002 Census, show that there were situated to video programming affiliated that they own and/or lease for the 3,188 firms in this category that with the MVPD; 65 transmission of voice, data, text, sound, operated for the entire year. Of this • Clarifying that the discrimination and video using wired total, 3,144 had employment of 999 or provision precludes a vertically telecommunications networks. fewer, and 44 firms had had integrated MVPD from discriminating Transmission facilities may be based on employment of 1,000 employees or on the basis of a programming vendor’s a single technology or a combination of more. Thus under this category and the lack of affiliation with another MVPD; 66 technologies. Establishments in this associated small business size standard, and industry use the wired the majority of these firms can be • Codifying in our rules which party telecommunications network facilities considered small.78 bears the burden of proof in program that they operate to provide a variety of 53. Cable Companies and Systems. carriage discrimination cases after the services, such as wired telephony The Commission has also developed its complainant has established a prima services, including VoIP services; wired own small business size standards, for facie case.67 (cable) audio and video programming the purpose of cable rate regulation. The NPRM also invites commenters to distribution; and wired broadband Under the Commission’s rules, a ‘‘small suggest any other changes to the Internet services. By exception, cable company’’ is one serving 400,000 program carriage rules that would establishments providing satellite or fewer subscribers nationwide.79 improve the Commission’s procedures television distribution services using Industry data indicate that all but ten and promote the goals of the program facilities and infrastructure that they cable operators nationwide are small carriage statute.68 operate are included in this under this size standard.80 In addition, 73 C. Legal Basis industry.’’ The SBA has developed a under the Commission’s rules, a ‘‘small small business size standard for system’’ is a cable system serving 15,000 49. The proposed action is authorized wireline firms within the broad or fewer subscribers.81 Industry data pursuant to sections 4(i), 4(j), 303(r), economic census category, ‘‘Wired indicate that, of 6,101 systems and 616 of the Communications Act of Telecommunications Carriers.’’ 74 Under nationwide, 4,410 systems have under 1934, as amended, 47 U.S.C. 154(i), this category, the SBA deems a wireline 10,000 subscribers, and an additional 154(j), 303(r), and 536. business to be small if it has 1,500 or 258 systems have 10,000–19,999 D. Description and Estimate of the fewer employees.75 Census Bureau data subscribers.82 Thus, under this Number of Small Entities to Which the for 2007, which now supersede data standard, most cable systems are small. Proposed Rules Will Apply 71 5 U.S.C. 601(3) (incorporating by reference the 76 See http://factfinder.census.gov/servlet/ 50. The RFA directs agencies to definition of ‘‘small business concern’’ in 15 U.S.C. IBQTable?_bm=y&-fds_name=EC0700A1&- provide a description of and, where 632). Pursuant to 5 U.S.C. 601(3), the statutory geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&- feasible, an estimate of the number of definition of a small business applies ‘‘unless an _lang=en. 77 small entities that may be affected by agency, after consultation with the Office of 13 CFR 121.201, 2007 NAICS code 517110. Advocacy of the Small Business Administration 78 69 See http://factfinder.census.gov/servlet/ the proposed rules, if adopted. The and after opportunity for public comment, IBQTable?_bm=y&-fds_name=EC0700A1&- RFA generally defines the term ‘‘small establishes one or more definitions of such term geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&- entity’’ as having the same meaning as which are appropriate to the activities of the agency _lang=en. the terms ‘‘small business,’’ ‘‘small and publishes such definition(s) in the Federal 79 47 CFR 76.901(e). The Commission determined Register.’’ 5 U.S.C. 601(3). that this size standard equates approximately to a organization,’’ and ‘‘small governmental 72 15 U.S.C. 632. Application of the statutory size standard of $100 million or less in annual jurisdiction.’’ 70 In addition, the term criteria of dominance in its field of operation and revenues. Implementation of Sections of the 1992 independence are sometimes difficult to apply in Cable Act: Rate Regulation, Sixth Report and Order 63 See id. at paras. 56–59. the context of broadcast television. Accordingly, the and Eleventh Order on Reconsideration, 10 FCC Commission’s statistical account of television Rcd 7393, 7408 (1995). 64 See id. at paras. 60–67. stations may be over-inclusive. 80 See Broadcasting & Cable Yearbook 2010 at 65 See id. at paras. 68–71. 73 U.S. Census Bureau, 2007 NAICS Definitions, C–2 (2009) (data current as of Dec. 2008). 66 See id. at paras. 72–78. ‘‘517110 Wired Telecommunications Carriers’’; 81 47 CFR 76.901(c). 67 See id. at paras. 79–81. http://www.census.gov/naics/2007/def/ 82 See Television & Cable Factbook 2009 at F–2 68 See id. at para. 37. ND517110.HTM#N517110. (2009) (data current as of Oct. 2008). The data do 69 5 U.S.C. 603(b)(3). 74 13 CFR 121.201, 2007 NAICS code 517110. not include 957 systems for which classifying data 70 5 U.S.C. 601(6). 75 See id. were not available.

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54. Cable System Operators. The associated small business size standard, associated small business size standard, Communications Act of 1934, as the majority of these firms can be the majority of these firms can be amended, also contains a size standard considered small.89 Currently, only two considered small.95 for small cable system operators, which entities provide DBS service, which 57. Home Satellite Dish (‘‘HSD’’) is ‘‘a cable operator that, directly or requires a great investment of capital for Service. HSD or the large dish segment through an affiliate, serves in the operation: DIRECTV and EchoStar of the satellite industry is the original aggregate fewer than 1 percent of all Communications Corporation satellite-to-home service offered to subscribers in the United States and is (‘‘EchoStar’’) (marketed as the DISH consumers, and involves the home not affiliated with any entity or entities Network).90 Each currently offers reception of signals transmitted by whose gross annual revenues in the subscription services. DIRECTV 91 and satellites operating generally in the C- aggregate exceed $250,000,000.’’ 83 The EchoStar 92 each report annual revenues band frequency. Unlike DBS, which Commission has determined that an that are in excess of the threshold for a uses small dishes, HSD antennas are operator serving fewer than 677,000 small business. Because DBS service between four and eight feet in diameter subscribers shall be deemed a small requires significant capital, we believe it and can receive a wide range of operator if its annual revenues, when is unlikely that a small entity as defined unscrambled (free) programming and combined with the total annual by the SBA would have the financial scrambled programming purchased from revenues of all its affiliates, do not wherewithal to become a DBS service program packagers that are licensed to exceed $250 million in the aggregate.84 provider. facilitate subscribers’ receipt of video Industry data indicate that all but nine 56. Satellite Master Antenna programming. Because HSD provides cable operators nationwide are small Television (SMATV) Systems, also subscription services, HSD falls within under this subscriber size standard.85 known as Private Cable Operators the SBA-recognized definition of Wired We note that the Commission neither (PCOs). SMATV systems or PCOs are Telecommunications Carriers.96 The requests nor collects information on video distribution facilities that use SBA has developed a small business whether cable system operators are closed transmission paths without using size standard for this category, which is: affiliated with entities whose gross any public right-of-way. They acquire All such firms having 1,500 or fewer 86 annual revenues exceed $250 million, video programming and distribute it via employees.97 Census Bureau data for and therefore we are unable to estimate terrestrial wiring in urban and suburban 2007, which now supersede data from more accurately the number of cable multiple dwelling units such as the 2002 Census, show that there were system operators that would qualify as apartments and condominiums, and 3,188 firms in this category that small under this size standard. commercial multiple tenant units such operated for the entire year. Of this 55. Direct Broadcast Satellite (‘‘DBS’’) as hotels and office buildings. SMATV total, 3,144 had employment of 999 or Service. DBS service is a nationally systems or PCOs are now included in fewer, and 44 firms had had distributed subscription service that the SBA’s broad economic census employment of 1,000 employees or delivers video and audio programming category, ‘‘Wired Telecommunications more. Thus, under this category and the via satellite to a small parabolic ‘‘dish’’ Carriers,’’ 93 which was developed for associated small business size standard, antenna at the subscriber’s location. small wireline firms. Under this the majority of these firms can be DBS, by exception, is now included in category, the SBA deems a wireline considered small.98 the SBA’s broad economic census business to be small if it has 1,500 or 58. Broadband Radio Service and category, ‘‘Wired Telecommunications fewer employees.94 Census Bureau data Carriers,’’ 87 which was developed for for 2007, which now supersede data Educational Broadband Service. small wireline firms. Under this from the 2002 Census, show that there Broadband Radio Service systems, category, the SBA deems a wireline were 3,188 firms in this category that previously referred to as Multipoint business to be small if it has 1,500 or operated for the entire year. Of this Distribution Service (MDS) and fewer employees.88 Census Bureau data total, 3,144 had employment of 999 or Multichannel Multipoint Distribution for 2007, which now supersede data fewer, and 44 firms had had Service (MMDS) systems, and ‘‘wireless from the 2002 Census, show that there employment of 1,000 employees or cable,’’ transmit video programming to were 3,188 firms in this category that more. Thus, under this category and the subscribers and provide two-way high operated for the entire year. Of this speed data operations using the total, 3,144 had employment of 999 or 89 See http://factfinder.census.gov/servlet/ microwave frequencies of the fewer, and 44 firms had had IBQTable?_bm=y&-fds_name=EC0700A1&- Broadband Radio Service (BRS) and _ _ _ employment of 1,000 employees or geo id=&- skip=600&-ds name=EC0751SSSZ5&- Educational Broadband Service (EBS) _lang=en. more. Thus under this category and the (previously referred to as the 90 See Annual Assessment of the Status of Instructional Television Fixed Service Competition in the Market for the Delivery of Video 99 83 47 U.S.C. 543(m)(2); see 47 CFR 76.901(f) & nn. Programming, Thirteenth Annual Report, 24 FCC (ITFS)). In connection with the 1996 1–3. Rcd 542, 580, para. 74 (2009) (‘‘13th Annual 84 47 CFR 76.901(f); see FCC Announces New Report’’). We note that, in 2007, EchoStar 95 See http://factfinder.census.gov/servlet/ Subscriber Count for the Definition of Small Cable purchased the licenses of Dominion Video Satellite, IBQTable?_bm=y&-fds_name=EC0700A1&- Operator, Public Notice, 16 FCC Rcd 2225 (Cable Inc. (‘‘Dominion’’) (marketed as Sky Angel). See geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&- Services Bureau 2001). Public Notice, ‘‘Policy Branch Information; Actions _lang=en. 85 See Broadcasting & Cable Yearbook 2010 at Taken,’’ Report No. SAT–00474, 22 FCC Rcd 17776 96 13 CFR 121.201, 2007 NAICS code 517110. C–2 (2009) (data current as of Dec. 2008). (IB 2007). 97 See id. 86 The Commission does receive such information 91 As of June 2006, DIRECTV is the largest DBS 98 See http://factfinder.census.gov/servlet/ on a case-by-case basis if a cable operator appeals operator and the second largest MVPD, serving an IBQTable?_bm=y&-fds_name=EC0700A1&- a local franchise authority’s finding that the estimated 16.20% of MVPD subscribers nationwide. geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&- operator does not qualify as a small cable operator See 13th Annual Report, 24 FCC Rcd at 687, Table _lang=en. pursuant to 76.901(f) of the Commission’s rules. See B–3. 99 Amendment of Parts 21 and 74 of the 47 CFR 76.901(f). 92 As of June 2006, DISH Network is the second Commission’s Rules with Regard to Filing 87 See 13 CFR 121.201, 2007 NAICS code 517110. largest DBS operator and the third largest MVPD, Procedures in the Multipoint Distribution Service The 2007 NAICS definition of the category of serving an estimated 13.01% of MVPD subscribers and in the Instructional Television Fixed Service ‘‘Wired Telecommunications Carriers’’ is in nationwide. Id. and Implementation of Section 309(j) of the paragraph 6, above. 93 13 CFR 121.201, 2007 NAICS code 517110. Communications Act—Competitive Bidding, MM 88 13 CFR 121.201, 2007 NAICS code 517110. 94 See id. Continued

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BRS auction, the Commission bidders, two bidders that claimed small services.111 They also include the Local established a small business size business status won 4 licenses; one Multipoint Distribution Service standard as an entity that had annual bidder that claimed very small business (LMDS),112 the Digital Electronic average gross revenues of no more than status won three licenses; and two Message Service (DEMS),113 and the 24 $40 million in the previous three bidders that claimed entrepreneur status GHz Service,114 where licensees can calendar years.100 The BRS auctions won six licenses. choose between common carrier and non-common carrier status.115 At resulted in 67 successful bidders 59. In addition, the SBA’s Cable present, there are approximately 31,428 obtaining licensing opportunities for Television Distribution Services small common carrier fixed licensees and 493 Basic Trading Areas (BTAs). Of the business size standard is applicable to 79,732 private operational-fixed 67 auction winners, 61 met the EBS. There are presently 2,032 EBS definition of a small business. BRS also licensees and broadcast auxiliary radio licensees. All but 100 of these licenses licensees in the microwave services. includes licensees of stations authorized are held by educational institutions. prior to the auction. At this time, we There are approximately 120 LMDS Educational institutions are included in licensees, three DEMS licensees, and estimate that of the 61 small business 105 this analysis as small entities. Thus, three 24 GHz licensees. The BRS auction winners, 48 remain small we estimate that at least 1,932 licensees business licensees. In addition to the 48 Commission has not yet defined a small are small businesses. Since 2007, Cable business with respect to microwave small businesses that hold BTA Television Distribution Services have authorizations, there are approximately services. For purposes of the IRFA, we been defined within the broad economic will use the SBA’s definition applicable 392 incumbent BRS licensees that are census category of Wired to Wireless Telecommunications considered small entities.101 After Telecommunications Carriers; that Carriers (except satellite)—i.e., an entity adding the number of small business category is defined as follows: ‘‘This with no more than 1,500 persons.116 auction licensees to the number of industry comprises establishments Under the present and prior categories, incumbent licensees not already primarily engaged in operating and/or the SBA has deemed a wireless business counted, we find that there are currently providing access to transmission to be small if it has 1,500 or fewer approximately 440 BRS licensees that facilities and infrastructure that they employees.117 For the category of are defined as small businesses under own and/or lease for the transmission of Wireless Telecommunications Carriers either the SBA or the Commission’s voice, data, text, sound, and video using (except Satellite), Census data for 2007, rules. In 2009, the Commission wired telecommunications networks. which supersede data contained in the conducted Auction 86, the sale of 78 Transmission facilities may be based on 2002 Census, show that there were 102 licenses in the BRS areas. The a single technology or a combination of 1,383 firms that operated that year.118 Commission offered three levels of technologies.’’ 106 The SBA has Of those 1,383, 1,368 had fewer than bidding credits: (i) A bidder with developed a small business size 100 employees, and 15 firms had more attributed average annual gross revenues standard for this category, which is: All than 100 employees. Thus under this that exceed $15 million and do not such firms having 1,500 or fewer category and the associated small exceed $40 million for the preceding employees.107 Census Bureau data for business size standard, the majority of three years (small business) received a 2007, which now supersede data from firms can be considered small. We note 15 percent discount on its winning bid; the 2002 Census, show that there were that the number of firms does not (ii) a bidder with attributed average 3,188 firms in this category that necessarily track the number of annual gross revenues that exceed $3 operated for the entire year. Of this licensees. We estimate that virtually all million and do not exceed $15 million total, 3,144 had employment of 999 or of the Fixed Microwave licensees for the preceding three years (very small fewer, and 44 firms had employment of (excluding broadcast auxiliary business) received a 25 percent discount 1,000 employees or more. Thus, under licensees) would qualify as small on its winning bid; and (iii) a bidder this category and the associated small entities under the SBA definition. with attributed average annual gross business size standard, the majority of 61. Open Video Systems. The open video system (‘‘OVS’’) framework was revenues that do not exceed $3 million these firms can be considered small.108 for the preceding three years established in 1996, and is one of four (entrepreneur) received a 35 percent 60. Fixed Microwave Services. discount on its winning bid.103 Auction Microwave services include common 111 Auxiliary Microwave Service is governed by 109 110 86 concluded in 2009 with the sale of carrier, private-operational fixed, Part 74 of Title 47 of the Commission’s Rules. See 47 CFR Part 74. Available to licensees of broadcast 104 and broadcast auxiliary radio 61 licenses. Of the ten winning stations and to broadcast and cable network entities, broadcast auxiliary microwave stations are Docket No. 94–131, PP Docket No. 93–253, Report to Deny Period, Public Notice, 24 FCC Rcd 13572 used for relaying broadcast television signals from and Order, 10 FCC Rcd 9589, 9593, para. 7 (1995). (2009). the studio to the transmitter, or between two points 100 47 CFR 21.961(b)(1). 105 The term ‘‘small entity’’ within SBREFA such as a main studio and an auxiliary studio. The service also includes mobile TV pickups, which 101 47 U.S.C. 309(j). Hundreds of stations were applies to small organizations (nonprofits) and to relay signals from a remote location back to the licensed to incumbent MDS licensees prior to small governmental jurisdictions (cities, counties, studio. implementation of section 309(j) of the towns, townships, villages, school districts, and 112 Communications Act of 1934, 47 U.S.C. 309(j). For special districts with populations of less than See 47 CFR part 101, subpart L. these pre-auction licenses, the applicable standard 50,000). 5 U.S.C. 601(4)–(6). We do not collect 113 See 47 CFR part 101, subpart G. is SBA’s small business size standard of 1500 or annual revenue data on EBS licensees. 114 See id. fewer employees. 106 U.S. Census Bureau, 2007 NAICS Definitions, 115 See 47 CFR 101.533, 101.1017. 102 Auction of Broadband Radio Service (BRS) ‘‘517110 Wired Telecommunications Carriers,’’ 116 13 CFR 121.201, 2007 NAICS code 517210. Licenses, Scheduled for October 27, 2009, Notice (partial definition), http://www.census.gov/naics/ 117 See id. The now-superseded, pre-2007 CFR and Filing Requirements, Minimum Opening Bids, 2007/def/ND517110.HTM#N517110. citations were 13 CFR 121.201, NAICS codes Upfront Payments, and Other Procedures for 107 13 CFR 121.201, 2007 NAICS code 517110. 517211 and 517212 (referring to the 2002 NAICS). Auction 86, Public Notice, 24 FCC Rcd 8277 (2009). 108 See http://factfinder.census.gov/servlet/ 118 U.S. Census Bureau, 2007 Economic Census, _ _ 103 Id. at 8296. IBQTable? bm=y&-fds name=EC0700A1&- Sector 51, 2007 NAICS code 517210 (rel. Oct. 20, _ _ _ 104 Auction of Broadband Radio Service Licenses geo id=&- skip=600&-ds name=EC0751SSSZ5&- 2009), http://factfinder.census.gov/servlet/ _ Closes, Winning Bidders Announced for Auction 86, lang=en. IBQTable?_bm=y&-geo_id=&- Down Payments Due November 23, 2009, Final 109 See 47 CFR part 101, subparts C and I. fds_name=EC0700A1&-_skip=700&- Payments Due December 8, 2009, Ten-Day Petition 110 See 47 CFR part 101, subparts C and H. ds_name=EC0751SSSZ5&-_lang=en.

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statutorily recognized options for the as cable systems or direct-to-home specifically for incumbent local provision of video programming satellite systems, for transmission to exchange services. The appropriate size services by local exchange carriers.119 viewers.’’ 126 The SBA has developed a standard under SBA rules is for the The OVS framework provides small business size standard for this category Wired Telecommunications opportunities for the distribution of category, which is: All such firms Carriers. Under that size standard, such video programming other than through having $15 million dollars or less in a business is small if it has 1,500 or 127 cable systems. Because OVS operators annual revenues. To gauge small fewer employees.133 Census Bureau data 120 provide subscription services, OVS business prevalence in the Cable and for 2007, which now supersede data falls within the SBA small business size Other Subscription Programming from the 2002 Census, show that there standard covering cable services, which industries, the Commission relies on were 3,188 firms in this category that is ‘‘Wired Telecommunications data currently available from the U.S. operated for the entire year. Of this Carriers.’’ 121 The SBA has developed a Census for the year 2007. Census Bureau small business size standard for this data for 2007, which now supersede total, 3,144 had employment of 999 or category, which is: All such firms data from the 2002 Census, show that fewer, and 44 firms had employment of having 1,500 or fewer employees.122 there were 396 firms in this category 1,000 employees or more. Thus, under Census Bureau data for 2007, which that operated for the entire year.128 Of this category and the associated small now supersede data from the 2002 that number, 325 operated with annual business size standard, the majority of Census, show that there were 3,188 revenues of $9,999,999 dollars or these firms can be considered small.134 firms in this category that operated for less.129 Seventy-one (71) operated with 65. Competitive Local Exchange the entire year. Of this total, 3,144 had annual revenues of between $10 million Carriers, Competitive Access Providers employment of 999 or fewer, and 44 and $100 million or more.130 Thus, (CAPs), ‘‘Shared-Tenant Service firms had had employment of 1,000 under this category and associated small Providers,’’ and ‘‘Other Local Service employees or more. Thus, under this business size standard, the majority of Providers.’’ Neither the Commission nor category and the associated small firms can be considered small. the SBA has developed a small business 63. Small Incumbent Local Exchange business size standard, the majority of size standard specifically for these these firms can be considered small.123 Carriers. We have included small service providers. The appropriate size In addition, we note that the incumbent local exchange carriers in Commission has certified some OVS this present RFA analysis. A ‘‘small standard under SBA rules is for the operators, with some now providing business’’ under the RFA is one that, category Wired Telecommunications service.124 Broadband service providers inter alia, meets the pertinent small Carriers. Under that size standard, such (‘‘BSPs’’) are currently the only business size standard (e.g., a telephone a business is small if it has 1,500 or significant holders of OVS certifications communications business having 1,500 fewer employees.135 Census Bureau data or local OVS franchises.125 The or fewer employees), and ‘‘is not for 2007, which now supersede data Commission does not have financial or dominant in its field of operation.’’ 131 from the 2002 Census, show that there employment information regarding the The SBA’s Office of Advocacy contends were 3,188 firms in this category that entities authorized to provide OVS, that, for RFA purposes, small incumbent operated for the entire year. Of this some of which may not yet be local exchange carriers are not dominant total, 3,144 had employment of 999 or operational. Thus, at least some of the in their field of operation because any fewer, and 44 firms had had OVS operators may qualify as small such dominance is not ‘‘national’’ in employment of 1,000 employees or entities. scope.132 We have therefore included more. Thus, under this category and the 62. Cable and Other Subscription small incumbent local exchange carriers associated small business size standard, Programming. The Census Bureau in this RFA analysis, although we the majority of these firms can be defines this category as follows: ‘‘This emphasize that this RFA action has no considered small.136 Consequently, the industry comprises establishments effect on Commission analyses and Commission estimates that most primarily engaged in operating studios determinations in other, non-RFA providers of competitive local exchange and facilities for the broadcasting of contexts. service, competitive access providers, programs on a subscription or fee basis 64. Incumbent Local Exchange * * *. These establishments produce ‘‘Shared-Tenant Service Providers,’’ and Carriers (‘‘LECs’’). Neither the ‘‘Other Local Service Providers’’ are programming in their own facilities or Commission nor the SBA has developed small entities. acquire programming from external a small business size standard sources. The programming material is 66. Television Broadcasting. The SBA usually delivered to a third party, such 126 U.S. Census Bureau, 2007 NAICS Definitions, defines a television broadcasting station ‘‘515210 Cable and Other Subscription as a small business if such station has 119 47 U.S.C. 571(a)(3)–(4). See 13th Annual Programming’’; http://www.census.gov/naics/2007/ no more than $14.0 million in annual def/ND515210.HTM#N515210. Report, 24 FCC Rcd at 606, para. 135. 137 127 receipts. Business concerns included 120 See 47 U.S.C. 573. 13 CFR 121.201, 2007 NAICS code 515210. 121 U.S. Census Bureau, 2007 NAICS Definitions, 128 http://factfinder.census.gov/servlet/ in this industry are those ‘‘primarily ‘‘517110 Wired Telecommunications Carriers’’; IBQTable?_bm=y&-geo_id=&-_skip=700&- engaged in broadcasting images together http://www.census.gov/naics/2007/def/ ds_name=EC0751SSSZ4&-_lang=en. 129 ND517110.HTM#N517110. Id. 133 13 CFR 121.201, 2007 NAICS code 517110. 122 130 13 CFR 121.201, 2007 NAICS code 517110. Id. 134 See http://factfinder.census.gov/servlet/ 123 See http://factfinder.census.gov/servlet/ 131 15 U.S.C. 632. _ _ _ _ IBQTable? bm=y&-fds name=EC0700A1&- IBQTable? bm=y&-fds name=EC0700A1&- 132 Letter from Jere W. Glover, Chief Counsel for geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&- geo_id=&-_skip=600&-ds_name=EC0751SSSZ5&- Advocacy, SBA, to William E. Kennard, Chairman, _lang=en. _lang=en. FCC (May 27, 1999). The Small Business Act 135 13 CFR 121.201, 2007 NAICS code 517110. 124 A list of OVS certifications may be found at contains a definition of ‘‘small-business concern,’’ 136 http://www.fcc.gov/mb/ovs/csovscer.html. which the RFA incorporates into its own definition See http://factfinder.census.gov/servlet/ _ _ 125 See 13th Annual Report, 24 FCC Rcd at 606– of ‘‘small business.’’ See 15 U.S.C. 632(a) (Small IBQTable? bm=y&-fds name=EC0700A1&- _ _ _ 07, para. 135. BSPs are newer firms that are Business Act); 5 U.S.C. 601(3) (RFA). SBA geo id=&- skip=600&-ds name=EC0751SSSZ5&- building state-of-the-art, facilities-based networks to regulations interpret ‘‘small business concern’’ to _lang=en. provide video, voice, and data services over a single include the concept of dominance on a national 137 See 13 CFR 121.201, 2007 NAICS Code network. basis. See 13 CFR 121.102(b). 515120.

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with sound.’’ 138 The Commission has of small businesses to which rules may this category may be engaged in various estimated the number of licensed apply do not exclude any television industries, including cable commercial television stations to be station from the definition of a small programming. Specific figures are not 1,390.139 According to Commission staff business on this basis and are therefore available regarding how many of these review of the BIA/Kelsey, MAPro over-inclusive to that extent. Also, as firms produce and/or distribute Television Database (‘‘BIA’’) as of April noted, an additional element of the programming for cable television. The 7, 2010, about 1,015 of an estimated definition of ‘‘small business’’ is that the SBA has developed a small business 1,380 commercial television stations 140 entity must be independently owned size standard for this category, which is: (or about 74 percent) have revenues of and operated. We note that it is difficult all such firms having $29.5 million $14 million or less and, thus, qualify as at times to assess these criteria in the dollars or less in annual revenues.148 To small entities under the SBA definition. context of media entities and our gauge small business prevalence in the The Commission has estimated the estimates of small businesses to which Motion Picture and Video Distribution number of licensed noncommercial they apply may be over-inclusive to this industries, the Commission relies on educational (NCE) television stations to extent. data currently available from the U.S. be 391.141 We note, however, that, in 68. Motion Picture and Video Census for the year 2007. Census Bureau assessing whether a business concern Production. The Census Bureau defines data for 2007, which now supersede qualifies as small under the above this category as follows: ‘‘This industry data from the 2002 Census, show that definition, business (control) comprises establishments primarily there were 450 firms in this category affiliations 142 must be included. Our engaged in producing, or producing and that operated for the entire year.149 Of estimate, therefore, likely overstates the distributing motion pictures, videos, these, 434 had annual receipts of number of small entities that might be television programs, or television $24,999,999 or less, and 16 had annual affected by our action, because the commercials.’’ 143 We note that firms in receipts ranging from not less that revenue figure on which it is based does this category may be engaged in various $25,000,000 to $100,000,000 or more.150 not include or aggregate revenues from industries, including cable Thus, under this category and affiliated companies. The Commission programming. Specific figures are not associated small business size standard, does not compile and otherwise does available regarding how many of these the majority of firms can be considered not have access to information on the firms produce and/or distribute small. revenue of NCE stations that would programming for cable television. The E. Description of Projected Reporting, permit it to determine how many such SBA has developed a small business Recordkeeping, and Other Compliance stations would qualify as small entities. size standard for this category, which is: Requirements 67. In addition, an element of the All such firms having $29.5 million definition of ‘‘small business’’ is that the dollars or less in annual revenues.144 To 70. Certain proposed rule changes entity not be dominant in its field of gauge small business prevalence in the discussed in the NPRM would affect operation. We are unable at this time to Motion Picture and Video Production reporting, recordkeeping, or other define or quantify the criteria that industries, the Commission relies on compliance requirements. These would establish whether a specific data currently available from the U.S. proposed changes would primarily television station is dominant in its field Census for the year 2007. Census Bureau impact video programming vendors and of operation. Accordingly, the estimate data for 2007, which now supersede MVPDs, and would only apply in the data from the 2002 Census, show that event a program carriage complaint is 138 U.S. Census Bureau, 2007 NAICS Definitions, there were 9,095 firms in this category filed. First, the NPRM proposes revised ‘‘515120 Television Broadcasting’’; http:// that operated for the entire year.145 Of discovery procedures for program www.census.gov/naics/2007/def/ND515120.HTM. carriage complaint proceedings in This category description continues, ‘‘These these, 8,995 had annual receipts of establishments operate television broadcasting $24,999,999 or less, and 100 has annual which the Media Bureau rules on the studios and facilities for the programming and receipts ranging from not less that merits of the complaint after 151 transmission of programs to the public. These $25,000,000 to $100,000,000 or more.146 discovery. The revised discovery establishments also produce or transmit visual procedures would require parties to a programming to affiliated broadcast television Thus, under this category and stations, which in turn broadcast the programs to associated small business size standard, complaint to produce certain documents the public on a predetermined schedule. the majority of firms can be considered to the other party within defined time 152 Programming may originate in their own studios, small. periods. Under the expanded from an affiliated network, or from external discovery process, a party to a program sources.’’ Separate census categories pertain to 69. Motion Picture and Video businesses primarily engaged in producing Distribution. The Census Bureau defines carriage complaint can request programming. See Motion Picture and Video this category as follows: ‘‘This industry discovery directly from the other party, Production, NAICS code 512110; Motion Picture comprises establishments primarily which that party may oppose, with the and Video Distribution, NAICS Code 512120; obligation to produce the disputed Teleproduction and Other Post-Production engaged in acquiring distribution rights Services, NAICS Code 512191; and Other Motion and distributing film and video material suspended until the Picture and Video Industries, NAICS Code 512199. productions to motion picture theaters, Commission rules on the objection.153 139 See News Release, ‘‘Broadcast Station Totals television networks and stations, and Under automatic document production, as of December 31, 2010,’’ 2011 WL 484756 (dated 147 a party to a program carriage complaint Feb. 11, 2011) (‘‘Broadcast Station Totals’’); also exhibitors.’’ We note that firms in available at http://www.fcc.gov/Daily_Releases/ Daily_Business/2011/db0211/DOC-304594A1.pdf. 143 U.S. Census Bureau, 2007 NAICS Definitions, Distribution’’; http://www.census.gov/naics/2007/ def/NDEF512.HTM#N51212. 140 We recognize that this total differs slightly ‘‘51211 Motion Picture and Video Production’’; 148 from that contained in Broadcast Station Totals, http://www.census.gov/naics/2007/def/ 13 CFR 121.201, 2007 NAICS code 512120. supra, note 139; however, we are using BIA’s NDEF512.HTM#N51211. 149 http://factfinder.census.gov/servlet/ _ _ _ estimate for purposes of this revenue comparison. 144 13 CFR 121.201, 2007 NAICS code 512110. IBQTable? bm=y&-geo id=&- skip=200&- _ _ 141 See Broadcast Station Totals, supra, note 139. 145 See http://factfinder.census.gov/servlet/ ds name=EC0751SSSZ4&- lang=en. _ _ _ 150 142 ‘‘[Business concerns] are affiliates of each IBQTable? bm=y&-geo id=&- skip=200&- Id. _ _ 151 other when one concern controls or has the power ds name=EC0751SSSZ4&- lang=en. See NPRM in MB Docket No. 11–131 at paras. to control the other or a third party or parties 146 Id. 41–49. controls or has to power to control both.’’ 13 CFR 147 See U.S. Census Bureau, 2007 NAICS 152 See NPRM at paras. 43–44. 121.103(a)(1). Definitions, ‘‘51212 Motion Picture and Video 153 See NPRM at para. 42.

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would be required to provide certain to video programming affiliated with the smaller entities as well as larger entities. documents set forth in the MVPD.162 If adopted, this rule would For this reason, an analysis of Commission’s rules to the other party enable a video programming vendor to alternatives to the proposed rules is within ten days after the Media Bureau’s file a program carriage complaint unnecessary. Further, we note that in determination that the complainant has alleging that a vertically integrated the discussion of whether to require established a prima facie case.154 MVPD failed to negotiate in good faith, MVPDs to negotiate in good faith with Second, the NPRM proposes adopting and would require the defendant MVPD unaffiliated video programming procedures allowing for the award of to defend its actions. In addition, the vendors 166 and whether to clarify that damages in program carriage cases.155 rule would list objective good faith the discrimination provision precludes These procedures would require a negotiation standards, the violation of an MVPD from discriminating on the program carriage complainant to which would be considered a per se basis of a programming vendor’s lack of provide either a detailed computation of violation of the good faith negotiation affiliation with another MVPD,167 the damages or a detailed outline of the obligation.163 Seventh, the NPRM Commission in the NPRM specifically methodology that would be used to proposes to clarify that the program proposes to apply these rules to only create a computation of damages.156 To carriage discrimination provision vertically integrated MVPDs. Because the extent the Commission approves a precludes a vertically integrated MVPD small entities are unlikely to be damages computation methodology, the from discriminating on the basis of a vertically integrated MVPDs, this rules would require the parties to file programming vendor’s lack of affiliation proposed limitation would provide with the Commission a statement with another MVPD.164 If adopted, this particular benefit to small entities. regarding their efforts to agree upon a rule would enable a video programming 73. We invite comment on whether final amount of damages pursuant to the vendor to file a program carriage there are any alternatives we should approved methodology.157 The NPRM complaint alleging that a vertically consider that would minimize any proposes similar procedures for the integrated MVPD discriminated on the adverse impact on small businesses, but application of new rates, terms, and basis of a programming vendor’s lack of which maintain the benefits of our conditions as of the expiration date of affiliation with another MVPD, and proposals. the previous contract in cases where the would require the defendant MVPD to defend its actions. G. Federal Rules That May Duplicate, Media Bureau issues a standstill order Overlap, or Conflict With the Proposed in a program carriage complaint F. Steps Taken To Minimize Significant Rule proceeding.158 Third, the NPRM Economic Impact on Small Entities, and 74. None. proposes to adopt a rule providing that Significant Alternatives Considered the Media Bureau or an ALJ may order III. Ordering Clauses parties to a program carriage complaint 71. The RFA requires an agency to 75. Accordingly, It is ordered that to submit their best ‘‘final offer’’ for the describe any significant alternatives that pursuant to the authority contained in rates, terms, and conditions for the it has considered in reaching its sections 4(i), 4(j), 303(r), and 616 of the programming at issue in a complaint to proposed approach, which may include Communications Act of 1934, as assist in crafting a remedy.159 Fourth, the following four alternatives (among amended, 47 U.S.C. 154(i), 154(j), the NPRM proposes to codify a others): (1) The establishment of 303(r), and 536, this Notice of Proposed requirement that the defendant MVPD differing compliance or reporting Rulemaking in MB Docket No. 11–131 Is in a program carriage complaint requirements or timetables that take into Adopted. proceeding must make an evidentiary account the resources available to small 76. It is further ordered that the showing to the Media Bureau or an ALJ entities; (2) the clarification, Commission’s Consumer and as to whether a mandatory carriage consolidation, or simplification of Governmental Affairs Bureau, Reference remedy would result in deletion of other compliance or reporting requirements Information Center, Shall Send a copy programming on the MVPD’s system.160 under the rule for small entities; (3) the of this Notice of Proposed Rulemaking Fifth, the NPRM proposes to adopt a use of performance, rather than design, in MB Docket No. 11–131, including the rule prohibiting an MVPD from standards; and (4) an exemption from Initial Regulatory Flexibility Analysis, retaliating against a video programming coverage of the rule, or any part thereof, 165 to the Chief Counsel for Advocacy of the vendor for filing a program carriage for small entities. 72. As discussed in the NPRM, our Small Business Administration. complaint.161 If adopted, this rule goal in this proceeding is to further would enable a video programming List of Subjects in 47 CFR Part 76 improve our procedures for addressing vendor to file a program carriage program carriage complaints and to Administrative practice and complaint alleging retaliation, and advance the goals of the program procedure, Cable television, Equal would require the defendant MVPD to carriage statute. The specific changes on employment opportunity, Political defend its actions. Sixth, the NPRM which we seek comment, set forth in candidates, and Reporting and proposes to adopt a rule requiring a Paragraph 3 above, are intended to recordkeeping requirements. vertically integrated MVPD to negotiate achieve these goals. By improving and Federal Communications Commission. in good faith with an unaffiliated clarifying the Commission’s procedures programming video programming Marlene H. Dortch, for addressing program carriage vendor with respect to video Secretary. complaints, the proposals would benefit programming that is similarly situated both video programming vendors and Proposed Rules 154 See NPRM at para. 44. MVPDs, including those that are smaller For the reasons discussed in the 155 See NPRM at paras. 51–52. entities, as well as MVPD subscribers. preamble, the Federal Communications 156 See NPRM at para. 52. Thus, the proposed rules would benefit Commission proposes to amend 47 CFR 157 See NPRM at para. 52. part 76 as follows: 158 See NPRM at para. 53. 162 See NPRM at paras. 68–71. 159 See NPRM at paras. 54–55. 163 See NPRM at para. 71. 166 See NPRM in MB Docket No. 11–131 at para. 160 See NPRM at para. 58. 164 See NPRM at paras. 72–77. 69. 161 See NPRM at paras. 60–67. 165 5 U.S.C. 603(c)(1)–(c)(4). 167 See NPRM at para. 72.

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PART 76—MULTICHANNEL VIDEO carriage proposal of the other party, (ii) Damages will not be awarded AND CABLE TELEVISION SERVICE including the reasons for the rejection of upon a complaint unless specifically any such proposal; requested. Damages may be awarded if 1. The authority citation for Part 76 (vi) Execution by the multichannel the complaint complies fully with the continues to read as follows: video programming distributor of an requirement of paragraph (c)(4)(iii) of Authority: 47 U.S.C. 151, 152, 153, 154, agreement with any party, a term or this section where the defendant knew, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, condition of which, requires that the or should have known that it was 315, 317, 325, 339, 340, 341, 503, 521, 522, multichannel video programming engaging in conduct violative of section 531, 532, 534, 535, 536, 537, 543, 544, 544a, distributor not enter into a carriage 616. 545, 548, 549, 552, 554, 556, 558, 560, 561, (iii) In all cases in which recovery of 571, 572 and 573. agreement with an unaffiliated video programming vendor; and damages is sought, the complainant 2. Section 76.1301 is amended by (vii) Refusal by the multichannel shall include within, or as an adding paragraphs (d) and (e) to read as video programming distributor to attachment to, the complaint, either: follows: execute a written carriage agreement (A) A computation of each and every category of damages for which recovery § 76.1301 Prohibited practices. that sets forth the full understanding of the unaffiliated video programming is sought, along with an identification of * * * * * vendor and the multichannel video all relevant documents and materials or (d) Retaliation. No multichannel such other evidence to be used by the video programming distributor shall programming distributor. (4) In addition to the standards set complainant to determine the amount of retaliate against a video programming such damages; or vendor for filing a complaint with the forth in § 76.1301(e)(3), an unaffiliated video programming vendor may (B) An explanation of: Commission alleging a violation of (1) The information not in the demonstrate, based on the totality of the § 76.1301, if the effect of the conduct is possession of the complaining party that circumstances of a particular carriage to unreasonably restrain the ability of is necessary to develop a detailed negotiation, that a multichannel video the video programming vendor to computation of damages; programming distributor breached its compete fairly. (2) The reason such information is duty to negotiate in good faith as set (e) Bad faith negotiations. (1) No unavailable to the complaining party; multichannel video programming forth in § 76.1301(e)(1). (3) The factual basis the complainant distributor shall fail to negotiate in good 3. Section 76.1302 is amended by has for believing that such evidence of faith with an unaffiliated video revising paragraphs (c) through (g) and damages exists; and programming vendor with respect to by adding paragraphs (h) through (l) to (4) A detailed outline of the video programming that is similarly read as follows: methodology that would be used to situated to video programming affiliated § 76.1302 Carriage agreement create a computation of damages when (as defined in § 76.1300(a)) with the proceedings. such evidence is available. (d) Prima facie case. In order to multichannel video programming * * * * * distributor, if the effect of such a failure establish a prima facie case of a (c) Contents of complaint. In addition to negotiate in good faith is to violation of § 76.1301, the complaint to the requirements of § 76.7, a carriage unreasonably restrain the ability of the must contain evidence of the following: agreement complaint shall contain: unaffiliated video programming vendor (1) The complainant is a video to compete fairly. (1) Whether the complainant is a programming vendor as defined in (2) Video programming will be multichannel video programming section 616(b) of the Communications considered similarly situated based on a distributor or video programming Act of 1934, as amended, and combination of factors, such as genre, vendor, and, in the case of a § 76.1300(e) or a multichannel video ratings, license fee, target audience, multichannel video programming programming distributor as defined in target advertisers, target programming, distributor, identify the type of section 602(13) of the Communications and other factors. multichannel video programming Act of 1934, as amended, and (3) The following actions or practices distributor, the address and telephone § 76.1300(d); violate the multichannel video number of the complainant, what type (2) The defendant is a multichannel programming distributor’s duty to of multichannel video programming video programming distributor as negotiate in good faith as set forth in distributor the defendant is, and the defined in section 602(13) of the § 76.1301(e)(1): address and telephone number of each Communications Act of 1934, as (i) Refusal by the multichannel video defendant; amended, and § 76.1300(d); and programming distributor to negotiate for (2) Evidence that supports (3) (i) Financial interest. In a carriage; complainant’s belief that the defendant, complaint alleging a violation of (ii) Refusal by the multichannel video where necessary, meets the attribution § 76.1301(a), documentary evidence or programming distributor to designate a standards for application of the carriage testimonial evidence (supported by an representative with authority to make agreement regulations; affidavit from a representative of the binding representations on carriage; (3) The complaint must be complainant) that supports the claim (iii) Refusal by the multichannel accompanied by appropriate evidence that the defendant required a financial video programming distributor to meet demonstrating that the required interest in any program service as a and negotiate for carriage at reasonable notification pursuant to paragraph (b) of condition for carriage on one or more of times and locations, or acting in a this section has been made. such defendant’s systems. manner that unreasonably delays (4)(i) In a case where recovery of (ii) Exclusive rights. In a complaint carriage negotiations; damages is sought, the complaint shall alleging a violation of § 76.1301(b), (iv) Refusal by the multichannel video contain a clear and unequivocal request documentary evidence or testimonial programming distributor to put forth for damages and appropriate allegations evidence (supported by an affidavit more than a single, unilateral proposal; in support of such claim in accordance from a representative of the (v) Failure of the multichannel video with the requirements of paragraph complainant) that supports the claim programming distributor to respond to a (c)(4)(iii) of this section. that the defendant coerced a video

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programming vendor to provide, or complaint alleging a violation of reply which shall be responsive to retaliated against such a vendor for § 76.1301 (the ‘‘initial complaint’’) or matters contained in the answer and failing to provide, exclusive rights within two years after the initial shall not contain new matters. against any other multichannel video complaint is resolved on the merits. (g) Prima facie determination. (1) programming distributor as a condition (ii) An ‘‘adverse carriage action’’ for Within sixty (60) calendar days after the for carriage on a system. purposes of paragraph (d)(3)(iv)(B)(2)(i) complainant’s reply to the defendant’s (iii) Discrimination. In a complaint of this section is any action taken by the answer is filed (or the date on which the alleging a violation of § 76.1301(c): defendant multichannel video reply would be due if none is filed), the (A) Evidence that the conduct alleged programming distributor with respect to Chief, Media Bureau shall release a has the effect of unreasonably any video programming affiliated with decision determining whether the restraining the ability of an unaffiliated the complainant that adversely impacts complainant has established a prima video programming vendor to compete the complainant, including, but not facie case of a violation of § 76.1301. fairly; and limited to, refusing to carry any video (2) The Chief, Media Bureau may toll (B)(1) Documentary evidence or programming affiliated with the the sixty (60)-calendar-day deadline testimonial evidence (supported by an complainant or moving any video under the following circumstances: affidavit from a representative of the programming affiliated with the (i) If the complainant and defendant complainant) that supports the claim complainant to a less favorable channel jointly request that the Chief, Media that the defendant discriminated in position or tier, provided that an Bureau toll these deadlines in order to video programming distribution on the ‘‘adverse carriage action’’ does not pursue settlement discussions or basis of affiliation or non-affiliation of include the action at issue in the initial alternative dispute resolution or for any vendors in the selection, terms, or complaint. other reason that the complainant and conditions for carriage of video (v) Bad faith negotiations. In a defendant mutually agree justifies programming provided by such vendors; complaint alleging a violation of tolling; or or § 76.1301(e): (ii) If complying with the deadline (2)(i) Evidence that the complainant (A) Evidence that the conduct alleged would violate the due process rights of provides video programming that is has the effect of unreasonably a party or would be inconsistent with similarly situated to video programming restraining the ability of the fundamental fairness. provided by a video programming complainant to compete fairly; (3) A finding that the complainant has vendor affiliated (as defined in (B) Evidence that the complainant established a prima facie case of a § 76.1300(a)) with the defendant provides video programming that is violation of § 76.1301 means that the multichannel video programming similarly situated to video programming complainant has provided sufficient distributor or with another provided by a video programming evidence in its complaint to allow the multichannel video programming vendor affiliated (as defined in case to proceed to a ruling on the merits. distributor, based on a combination of § 76.1300(a)) with the defendant (4) If the Chief, Media Bureau finds factors, such as genre, ratings, license multichannel video programming that the complainant has not established fee, target audience, target advertisers, distributor based on a combination of a prima facie case of a violation of target programming, and other factors; factors, such as genre, ratings, license § 76.1301, the Chief, Media Bureau will and fee, target audience, target advertisers, dismiss the complaint. (ii) Evidence that the defendant target programming, and other factors; (h) Time limit on filing of complaints. multichannel video programming and Any complaint filed pursuant to this distributor is affiliated (as defined in (C) Evidence that the defendant subsection must be filed within one year § 76.1300(a)) with any video multichannel video programming of the date on which the alleged programming vendor and has treated the distributor breached its duty to violation of the program carriage rules video programming provided by the negotiate in good faith pursuant to occurred. complainant differently than the § 76.1301(e). (i) Deadline for decision on the merits. similarly situated, affiliated video (e) Answer. (1) Any multichannel (1)(i) For program carriage complaints programming described in paragraph video programming distributor upon that the Chief, Media Bureau decides on (d)(3)(iii)(B)(2)(i) of this section with which a carriage agreement complaint is the merits based on the complaint, respect to the selection, terms, or served under this section shall answer answer, and reply without discovery, conditions for carriage. within sixty (60) days of service of the the Chief, Media Bureau shall release a (iv) Retaliation. In a complaint complaint, unless otherwise directed by decision on the merits within sixty (60) alleging a violation of § 76.1301(d): the Commission. calendar days after the Chief, Media (A) Evidence that the conduct alleged (2) The answer shall address the relief Bureau’s prima facie determination. has the effect of unreasonably requested in the complaint, including (ii) For program carriage complaints restraining the ability of the legal and documentary support, for such that the Chief, Media Bureau decides on complainant to compete fairly; and response, and may include an the merits after discovery, the Chief, (B)(1) Documentary evidence or alternative relief proposal without any Media Bureau shall release a decision testimonial evidence (supported by an prejudice to any denials or defenses on the merits within 150 calendar days affidavit from a representative of the raised. after the Chief, Media Bureau’s prima complainant) that supports the claim (3) To the extent that a defendant facie determination. that the defendant retaliated against the expressly references and relies upon a (iii) The Chief, Media Bureau may toll complainant for filing a complaint with document or documents in asserting a these deadlines under the following the Commission alleging a violation of defense or responding to a material circumstances: § 76.1301; or allegation, such document or documents (A) If the complainant and defendant (2)(i) Evidence that the defendant shall be included as part of the answer. jointly request that the Chief, Media multichannel video programming (f) Reply. Within twenty (20) days Bureau toll these deadlines in order to distributor has taken an adverse carriage after service of an answer, unless pursue settlement discussions or action while the complainant has otherwise directed by the Commission, alternative dispute resolution or for any pending with the Commission a the complainant may file and serve a other reason that the complainant and

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defendant mutually agree justifies discretion to adopt one of the final (C)(1) In cases in which the parties tolling; or offers or to fashion its own remedy. cannot resolve the amount of damages (B) If complying with the deadline (4) Imposition of damages. within a reasonable time period, the would violate the due process rights of (i) Bifurcation. In all cases in which adjudicator retains the right to a party or would be inconsistent with damages are requested, the adjudicator determine the actual amount of damages fundamental fairness. deciding the case on the merits (i.e., on its own, or through the procedures (2) For program carriage complaints either the Chief, Media Bureau or an described in paragraph (j)(4)(iii)(C)(2) of that the Chief, Media Bureau refers to an administrative law judge) may bifurcate this section. administrative law judge for an initial the program carriage violation (2) In cases in which the Chief, Media decision, the deadlines set forth in determination from any damage Bureau acts as the adjudicator, issues § 0.341(f) of this chapter apply. adjudication. concerning the amount of damages may (j) Remedies for violations. (1) (ii) Burden of proof. The burden of be designated by the Chief, Media Remedies authorized. Upon completion proof regarding damages rests with the Bureau for hearing before, or, if the of such adjudicatory proceeding, the complainant, who must demonstrate parties agree, submitted for mediation adjudicator deciding the case on the with specificity the damages arising to, an administrative law judge. merits (i.e., either the Chief, Media from the program carriage violation. (D) Interest on the amount of damages Bureau or an administrative law judge) Requests for damages that grossly awarded will accrue from either the date shall order appropriate remedies, overstate the amount of damages may indicated in the adjudicator’s written including, if necessary, mandatory result in a determination by the order issued pursuant to paragraph carriage of a video programming adjudicator that the complainant failed (j)(4)(iii)(A)(1) of this section or the date vendor’s programming on defendant’s to satisfy its burden of proof to agreed upon by the parties as a result of video distribution system, or the demonstrate with specificity the their negotiations pursuant to paragraph establishment of prices, terms, and damages arising from the program (j)(4)(iii)(A)(2) of this section. Interest conditions for the carriage of a video carriage violation. shall be computed at applicable rates programming vendor’s programming. (iii) Damages adjudication. (A) The published by the Internal Revenue Such order shall set forth a timetable for adjudicator may, in its discretion, end Service for tax refunds. (k) Petitions for temporary standstill. compliance, and shall become effective adjudication of damages with a written (1) A program carriage complainant upon release, unless the adjudicator order determining the sufficiency of the seeking renewal of an existing rules that the defendant has made a damages computation submitted in programming contract may file a sufficient evidentiary showing that accordance with paragraph (c)(4)(iii)(A) petition along with its complaint demonstrates that an order of mandatory of this section or the damages requesting a temporary standstill of the carriage would require the defendant computation methodology submitted in price, terms, and other conditions of the multichannel video programming accordance with paragraph existing programming contract pending distributor to delete existing (c)(4)(iii)(B)(4) of this section, modifying resolution of the complaint. To allow for programming from its system to such computation or methodology, or sufficient time to consider the petition accommodate carriage of a video requiring the complainant to resubmit for temporary standstill prior to the programming vendor’s programming. In such computation or methodology. expiration of the existing programming such instances, if the defendant seeks (1) Where the adjudicator issues a contract, the petition for temporary review of the staff, or administrative law written order approving or modifying a standstill and complaint shall be filed judge decision, the order for carriage of damages computation submitted in no later than thirty (30) days prior to the a video programming vendor’s accordance with paragraph (c)(4)(iii)(A) expiration of the existing programming programming will not become effective of this section, the defendant shall contract. In addition to the requirements unless and until the decision of the staff recompense the complainant as directed of § 76.7, the complainant shall have the or administrative law judge is upheld by therein. burden of proof to demonstrate the the Commission. If the Commission (2) Where the adjudicator issues a following in its petition: upholds the remedy ordered by the staff written order approving or modifying a (i) The complainant is likely to or administrative law judge in its damages computation methodology prevail on the merits of its complaint; entirety, the defendant will be required submitted in accordance with paragraph (ii) The complainant will suffer to carry the video programming (c)(4)(iii)(B)(4) of this section, the irreparable harm absent a stay; vendor’s programming for an additional parties shall negotiate in good faith to (iii) Grant of a stay will not period equal to the time elapsed reach an agreement on the exact amount substantially harm other interested between the staff or administrative law of damages pursuant to the adjudicator- parties; and judge decision and the Commission’s mandated methodology. (iv) The public interest favors grant of ruling, on the terms and conditions (B) Within thirty (30) days of the a stay. approved by the Commission. issuance of a paragraph (c)(4)(iii)(B)(4) (2) The defendant multichannel video (2) Additional sanctions. The of this section damages methodology programming distributor upon which a remedies provided in paragraph (j)(1) of order, the parties shall submit jointly to petition for temporary standstill is this section are in addition to and not the adjudicator either: served shall answer within ten (10) days in lieu of the sanctions available under (1) A statement detailing the parties’ of service of the petition, unless title V or any other provision of the agreement as to the amount of damages; otherwise directed by the Commission. Communications Act. (2) A statement that the parties are (3) If the Commission grants the (3) Submission of final offers. To continuing to negotiate in good faith temporary standstill, the adjudicator assist in ordering an appropriate and a request that the parties be given deciding the case on the merits (i.e., remedy, the adjudicator has the an extension of time to continue either the Chief, Media Bureau or an discretion to order the complainant and negotiations; or administrative law judge) will provide the defendant to each submit a final (3) A statement detailing the bases for for remedies that are applied as of the offer for the prices, terms, or conditions the continuing dispute and the reasons expiration date of the previous in dispute. The adjudicator has the why no agreement can be reached. programming contract. To facilitate the

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application of remedies as of the programming distributor’s interest in video programming to compete, expiration date of the previous obtaining or plan to obtain a financial including the impact on subscribership; programming contract, the adjudicator, interest in the complainant or the video license fee revenues; advertising after deciding the case on the merits, programming at issue in the complaint; revenues; acquisition of advertisers; and may request the party seeking to apply and acquisition of programming rights; the remedies as of the expiration date of (iii) All documents relating to the (iv) For the complainant’s video the previous programming contract to programming vendor’s consideration of programming at issue in the complaint submit a proposal for such application whether to provide the defendant and the allegedly similarly situated, of remedies pursuant to the procedures multichannel video programming affiliated video programming, all set forth in § 76.1302(c)(4)(iii) and distributor with a financial interest in documents (both internal documents as 76.1302(j)(4) for requesting damages. An the complainant or the video well as documents received from opposition to such a proposal shall be programming at issue in the complaint. multichannel video programming filed within ten (10) days after the (2) In a complaint alleging a violation distributors, but limited to the ten proposal is filed. A reply to an of § 76.1301(b): largest multichannel video opposition shall be filed within five (5) (i) All documents relating to carriage programming distributors in terms of days after the opposition is filed. or requests for carriage of the video subscribers with which the complainant (l) Protective Orders. In addition to programming at issue in the complaint or the affiliated programming vendor the procedures contained in § 76.9 by the defendant multichannel video have engaged in carriage discussions related to the protection of confidential programming distributor; regarding the video programming) material, the Commission may issue (ii) All documents relating to the discussing the reasons for the orders to protect the confidentiality of defendant multichannel video multichannel video programming proprietary information required to be programming distributor’s interest in distributor’s carriage decisions with produced for resolution of program obtaining or plan to obtain exclusive respect to the video programming, carriage complaints. A protective order rights to the video programming at issue including the multichannel video constitutes both an order of the in the complaint; and programming distributor’s reasons for Commission and an agreement between (iii) All documents relating to the not carrying the video programming or the party executing the protective order programming vendor’s consideration of the multichannel video programming declaration and the party submitting the whether to provide the defendant distributor’s reasons for proposing, protected material. The Commission has multichannel video programming rejecting, or accepting specific carriage full authority to fashion appropriate distributor with exclusive rights to the terms; and the multichannel video sanctions for violations of its protective video programming at issue in the programming distributor’s evaluation of orders, including but not limited to complaint. the video programming; and (3) In a complaint alleging a violation suspension or disbarment of attorneys (v) For the complainant’s video of § 76.1301(c): from practice before the Commission, programming at issue in the complaint (i) All documents relating to the forfeitures, cease and desist orders, and and the allegedly similarly situated, defendant multichannel video denial of further access to confidential affiliated video programming, current programming distributor’s carriage information in Commission affiliation agreements with the ten decision with respect to the proceedings. largest multichannel video complainant’s video programming at 4. Section 76.1303 is added to read as programming distributors (including, if issue in the complaint, including the follows: not otherwise covered, the defendant defendant multichannel video multichannel video programming § 76.1303 Discovery. programming distributor’s reasons for distributor) carrying the video (a) Procedures. In addition to the not carrying the video programming or programming in terms of subscribers. general pleading and discovery rules the defendant multichannel video (c) Party-to-party discovery. (1) contained in § 76.7, the following programming distributor’s reasons for Within twenty (20) calendar days after procedures apply to complaints alleging proposing, rejecting, or accepting the Chief, Media Bureau releases a a violation of § 76.1301 in which the specific carriage terms; and the decision finding that the complainant Chief, Media Bureau acts as the defendant multichannel video has established a prima facie case of a adjudicator. programming distributor’s evaluation of violation of § 76.1301 and stating that (b) Automatic document production. the video programming; the Chief, Media Bureau will issue a Within ten (10) calendar days after the (ii) All documents comparing, ruling on the merits of the complaint Chief, Media Bureau releases a decision discussing the similarities or differences after discovery, each party to the finding that the complainant has between, or discussing the extent of complaint may serve requests for established a prima facie case of a competition between the complainant’s discovery directly on the opposing violation of § 76.1301 and stating that video programming at issue in the party, and file a copy of the request with the Chief, Media Bureau will issue a complaint and the allegedly similarly the Commission. ruling on the merits of the complaint situated, affiliated video programming, (2) Within five (5) calendar days after after discovery, each party must provide including in terms of genre, ratings, being served with a discovery request, the following documents to the license fee, target audience, target the respondent may serve directly on opposing party: advertisers, and target programming; the party requesting discovery an (1) In a complaint alleging a violation (iii) All documents relating to the objection to any request for discovery of § 76.1301(a): impact of defendant multichannel video that is not in the respondent’s control or (i) All documents relating to carriage programming distributor’s carriage relevant to the dispute, and file a copy or requests for carriage of the video decision on the ability of the of the objection with the Commission. programming at issue in the complaint complainant, the complainant’s video (3) Within five (5) calendar days after by the defendant multichannel video programming at issue in the complaint, being served with an objection to a programming distributor; the defendant multichannel video discovery request, the party requesting (ii) All documents relating to the programming distributor, and the discovery may serve a reply to the defendant multichannel video allegedly similarly situated, affiliated objection directly on the respondent,

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and file a copy of the reply with the obligation to produce the disputed default and an order may be entered in Commission. discovery is suspended. accordance with the allegations (4) To the extent that a party has (6) Unless the parties agree to extend contained in the complaint, or the objected to a discovery request, the the 150-calendar-day deadline for a complaint may be dismissed with parties shall meet and confer to resolve decision on the merits by the Chief, prejudice. (8) Unless the parties agree to extend the dispute. Within forty (40) calendar Media Bureau set forth in the 150-calendar-day deadline for a days after the Chief, Media Bureau § 76.1302(i)(1)(ii), discovery must decision on the merits by the Chief, releases a decision finding that the conclude within 75 calendar days after Media Bureau set forth in complainant has established a prima the Chief, Media Bureau releases a decision finding that the complainant § 76.1302(i)(1)(ii), the parties must facie case of a violation of § 76.1301 and has established a prima facie case of a submit post-discovery briefs and reply stating that the Chief, Media Bureau will violation of § 76.1301 and stating that briefs within twenty (20) calendar days issue a ruling on the merits of the the Chief, Media Bureau will issue a and ten (10) calendar days, respectively, complaint after discovery, the parties ruling on the merits of the complaint after the conclusion of discovery. Such shall file with the Commission a joint after discovery. briefs shall summarize the facts and proposal for discovery as well as a list (7) Any party who fails to timely issues presented in the pleadings and of issues pertaining to discovery that provide discovery requested by the other record evidence, including the have not been resolved. opposing party to which it has not information exchanged during (5) Until any objection to a discovery raised an objection as described above, discovery. request is resolved either by the parties or who fails to respond to a Commission [FR Doc. 2011–24239 Filed 9–28–11; 8:45 am] or by the Chief, Media Bureau, the order for discovery, may be deemed in BILLING CODE 6712–01–P

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Reader Aids Federal Register Vol. 76, No. 189 Thursday, September 29, 2011

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING SEPTEMBER Federal Register/Code of Federal Regulations General Information, indexes and other finding 202–741–6000 At the end of each month the Office of the Federal Register aids publishes separately a List of CFR Sections Affected (LSA), which Laws 741–6000 lists parts and sections affected by documents published since Presidential Documents the revision date of each title. 983...... 60361 Executive orders and proclamations 741–6000 3 CFR 1450...... 56949 1735...... 56091 The United States Government Manual 741–6000 Proclamations: Proposed Rules: Other Services 8700...... 54919 8701...... 54921 27...... 60388 Electronic and on-line services (voice) 741–6020 305...... 60390 Privacy Act Compilation 741–6064 8702...... 55207 8703...... 55209 319...... 60390 Public Laws Update Service (numbers, dates, etc.) 741–6043 505...... 57681, 60395 TTY for the deaf-and-hard-of-hearing 741–6086 8704...... 55211 8705...... 55549 983...... 57001 8706...... 55551 1033...... 55608 ELECTRONIC RESEARCH 8707...... 55779 1493...... 57940 World Wide Web 8708...... 56939 3201...... 56884 Full text of the daily Federal Register, CFR and other publications 8709...... 56941 8 CFR is located at: www.fdsys.gov. 8710...... 56943 Federal Register information and research tools, including Public 8711...... 57617 103...... 55502 Inspection List, indexes, and links to GPO Access are located at: 8712...... 58375 214...... 55502 www.ofr.gov. 8713...... 58377 274a...... 55502 E-mail 8714...... 58707 299...... 55502 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 8715...... 58709 Proposed Rules: an open e-mail service that provides subscribers with a digital 8716...... 58711 204...... 54978 form of the Federal Register Table of Contents. The digital form 8717...... 58713 205...... 54978 of the Federal Register Table of Contents includes HTML and 8718...... 59499 216...... 59927 PDF links to the full text of each document. 8719...... 59881 245...... 54978, 59927 8720...... 59883 To join or leave, go to http://listserv.access.gpo.gov and select 9 CFR Online mailing list archives, FEDREGTOC-L, Join or leave the list 8721...... 60353 (or change settings); then follow the instructions. 8722...... 60355 77...... 56635 PENS (Public Law Electronic Notification Service) is an e-mail Executive Orders: 88...... 55213 service that notifies subscribers of recently enacted laws. 13584...... 56945 Proposed Rules: To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Administrative Orders: 71...... 57682 and select Join or leave the list (or change settings); then follow Notices: 77...... 57682 the instructions. Notice of September 9, 78...... 57682 FEDREGTOC-L and PENS are mailing lists only. We cannot 2011 ...... 56633 90...... 57682 respond to specific inquiries. Notice of September 416...... 58157 Reference questions. Send questions and comments about the 21, 2011 ...... 59001 417...... 58157 Federal Register system to: [email protected] Memorandums: 430...... 58157 The Federal Register staff cannot interpret specific documents or Memo. of September 10 CFR regulations. 12, 2011 ...... 57621 Reminders. Effective January 1, 2009, the Reminders, including Presidential Determinations: 30...... 56951 Rules Going Into Effect and Comments Due Next Week, no longer No. 2011–15 of 36...... 56951 appear in the Reader Aids section of the Federal Register. This September 13, 39...... 56951 information can be found online at http://www.regulations.gov. 2011 ...... 57623 40...... 56951 CFR Checklist. Effective January 1, 2009, the CFR Checklist no No. 2011–14 of August 51...... 56951 longer appears in the Federal Register. This information can be 30, 2011 ...... 59493 70...... 56951 found online at http://bookstore.gpo.gov/. No. 2011–16 of 150...... 56951 September 15, 429...... 57897 FEDERAL REGISTER PAGES AND DATE, SEPTEMBER 2011 ...... 59495 430 ...... 57516, 57612, 57897 431...... 59003 54373–54688...... 1 59003–59236...... 23 5 CFR Proposed Rules: 54689–54920...... 2 59237–59500...... 26 843...... 55213 Ch. I ...... 54986 54921–55208...... 6 59501–59882...... 27 Ch. III ...... 60357 2...... 54392 55209–55552...... 7 59883–60356...... 28 Proposed Rules: 30...... 57006 55553–55778...... 8 60357–60700...... 29 2635...... 56330 31...... 56124 55779–56090...... 9 50...... 58165 56091–56276...... 12 6 CFR 52...... 58165 56277–56634...... 13 Proposed Rules: 100...... 58165 56635–56944...... 14 5 ...... 59926, 60385, 60387 150...... 57007 56945–57624...... 15 429...... 56661, 58346 57625–57896...... 16 7 CFR 430 ...... 55609, 56125, 56126, 57897–58088...... 19 246...... 59885 56339, 56347, 56661, 56678, 58089–58378...... 20 301...... 60357, 60358 58346 58379–58714...... 21 305...... 60359 431 ...... 55834, 56126, 57007 58715–59002...... 22 762...... 58089 810...... 55278

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12 CFR 743...... 58393, 58396 416...... 56107 256...... 57644 48...... 56094 744...... 58393 422...... 54700 311...... 57644, 58103 202...... 59237 745...... 54928 655...... 59896 706...... 58399 207...... 56508 746...... 58393 Proposed Rules: 1907...... 59031 215...... 56508 747...... 58393 404...... 56357 1908...... 59032 223...... 56508 748 ...... 54928, 58393, 58396 416...... 56357 1909...... 59034 750...... 58393 Proposed Rules: 228...... 56508 21 CFR 238...... 56508 752...... 58393 199 ...... 57690, 58199, 58202, 239...... 56508 754...... 58393 Ch. I ...... 58398 58204 261...... 56508 756...... 58393 25...... 59247 1900...... 59071 261b...... 56508 758...... 58393 73...... 59503 1901...... 59073 262...... 56508 760...... 58393 173...... 59247 263...... 56508 762...... 58393 175...... 59247 33 CFR 264a...... 56508 764...... 58393 177...... 59247 100 ...... 55556, 55558, 55561, 360...... 58379 766...... 58393 178...... 59247 57645, 59898 Ch. VI...... 54638 768...... 58393 182...... 59247 117...... 55563, 59036 700...... 60364 770...... 58393 184...... 59247 165 ...... 54375, 54377, 54380, 701...... 60364 772...... 58393, 58396 520...... 59023 54382, 54703, 55261, 55564, 702...... 60364 774 ...... 56099, 58393, 58396 522...... 57905, 57906 55566, 55796, 56638, 56640, 725...... 60364 922...... 56973 556...... 57906, 57907 57910, 58105, 58108, 58110, 741...... 60364 Proposed Rules: Proposed Rules: 58112, 58401 Proposed Rules: 806...... 58420 50...... 54408 Proposed Rules: 225...... 55288 56...... 54408 110...... 59596 241...... 54717 16 CFR 73...... 55321 704...... 54991 2...... 54690 352...... 56682 34 CFR Ch. XII...... 59066 310...... 58716 1140...... 55835 Subtitle B ...... 59036 1632...... 59014 1308...... 55616 Ch. II ...... 59036 14 CFR Proposed Rules: 24 CFR 303...... 60140 17...... 55217 Ch. II ...... 57682 Proposed Rules: 23...... 55230 312...... 59804 Proposed Rules: Subtitle B ...... 59074 25 ...... 54923, 57625, 57627 1221...... 58167 985...... 59069 Ch. II ...... 59074 33...... 55553, 56097 25 CFR 300...... 60310 39 ...... 54373, 54926, 55781, 17 CFR 600...... 59864 55783, 55785, 56277, 56279, 5...... 56103 Proposed Rules: Ch. III...... 54408, 57683 56284, 56286, 56290, 56637, 30...... 59241 36 CFR 57630, 57900, 58094, 58098, 49...... 54538 26 CFR 242...... 56109 59008, 59011, 59013, 59240, 200 ...... 57636, 58100, 60370 261...... 58403 1 ...... 55255, 55256, 55746, 60367 201...... 60370 56973 Proposed Rules: 71 ...... 54689, 54690, 55232, 204...... 60370 51...... 59897, 59898 7...... 55840 55553, 55554, 55555, 56099, 232...... 58100 301...... 55256, 60373 56966, 56967, 56968, 57633, 239...... 55788 37 CFR 57634, 57902, 58715, 59013, 602...... 55746 240...... 54374, 58100 1...... 59050, 59055 59501, 59502, 59503 Proposed Rules: 249...... 55788, 58100 Proposed Rules: 91...... 57635 269...... 55788 1 ...... 54409, 55321, 55322, 93...... 58393 57684 2...... 55841 271...... 55237 7...... 55841 95...... 59890 274...... 55788 300...... 59329 97 ...... 55233, 55235, 56969, 201...... 59953, 60398 56971 Proposed Rules: 28 CFR 23...... 58176 38 CFR 119...... 57635 Proposed Rules: 37...... 58186 125...... 57635 16...... 57940 17...... 55570 133...... 57635 38...... 58186 524...... 57012 51...... 55570 137...... 57635 39...... 58186 570...... 58197 39 CFR 141...... 57635 Ch. II ...... 56128 142...... 57635 230...... 60320 29 CFR 20...... 55799 145...... 57635 270...... 55300, 55308 4022...... 56973 111...... 54931, 59504 147...... 57635 400...... 59592 4044...... 56973 Proposed Rules: 401...... 59592 Proposed Rules: Proposed Rules: 121...... 58433 402...... 59592 23...... 55293 570...... 54836 3001...... 59085 403...... 59592 39 ...... 54397, 54399, 54403, 579...... 54836 3055...... 55619 405...... 59592 54405, 55296, 55614, 56680, 1602...... 57013 420...... 59592 58416, 58722, 59067, 59590, 1904...... 59952 40 CFR 59950, 60396 18 CFR 52 ...... 54384, 54706, 55542, 71 ...... 55298, 56127, 56354, 30 CFR 55544, 55572, 55577, 55581, 56356, 58726, 58727, 58728, 40...... 58101, 58716 Proposed Rules: 55774, 55776, 55799, 56114, 59306 Proposed Rules: 250...... 56683 56116, 56641, 57106, 58114, 252...... 57008 39...... 58424 1202...... 55837, 55838 58116, 58120, 59250, 59252, 382...... 59307 40...... 58424, 58730 1206...... 55837, 55838 59254, 59512, 59527, 59899, 284...... 58741 60373, 60376 15 CFR 31 CFR 63...... 57913 730...... 58393 19 CFR 210...... 59024 81...... 59512, 59527 732...... 58393 102...... 54691 240...... 57907 85...... 57106 734...... 58393 351...... 54697 Proposed Rules: 86...... 54932, 57106 736...... 58393 1...... 55839 98...... 59533, 59542 738...... 54928, 58393 20 CFR 116...... 55583 740 ...... 54928, 56099, 58393 217...... 60372 32 CFR 124...... 56982 742...... 56099, 58393 404...... 56107 199 ...... 57637, 57642, 57643 132...... 57646

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144...... 56982 42 CFR 64 ...... 58412, 59269, 59551, 38...... 57924 145...... 56982 411...... 60378 59557 40...... 59574 146...... 56982 412...... 59256, 59263 73 ...... 55585, 55817, 56658 105...... 56304 147...... 56982 413...... 59263, 59265 74...... 59559 106...... 56304 174...... 57653 414...... 54953 76...... 55817, 60652 107...... 56304 180 ...... 55264, 55268, 55272, 417...... 54600 79...... 55585, 56658 130...... 56304 55799, 55804, 55807, 55814, 422...... 54600 90...... 54977 171...... 56304 101...... 59559 56644, 56648, 57657, 59901, 423...... 54600 172...... 56304 300...... 56984 59906, 59908 59909 455...... 57808 173...... 56304 281...... 57659 476...... 59263 Proposed Rules: 174...... 56304 Ch. I ...... 60413 176...... 56304 300 ...... 56294, 57661, 57662, Proposed Rules: 1...... 54422 177...... 56304 58404 5...... 54996 15...... 59963 213...... 55819 302...... 55583 493...... 56712 600...... 57106 63...... 56362 393...... 56318 704...... 54932 43 CFR 76...... 60675 523...... 57106 79...... 59963 710...... 54932 534...... 57106 3000...... 59058 101...... 59614 711...... 54932 535...... 57106, 59922 1033...... 57106 44 CFR 48 CFR 571...... 55825, 55829 593...... 59578 1036...... 57106 64 ...... 54708, 56117, 58405, Ch. I ...... 60357 Proposed Rules: 1037...... 57106 59266 2...... 58122 10...... 55334 1039...... 57106 65 ...... 58409, 58411, 59268 Ch. 2 ...... 58137 27...... 59307, 60426 1065...... 57106 Proposed Rules: 201...... 58136, 58137 Ch. II ...... 55622 1066...... 57106 67 ...... 54415, 54721, 56724, 203...... 57671 269...... 55335 1068...... 57106 58436, 59361, 59960 204...... 58138, 58140 Ch. III ...... 54721 Proposed Rules: 209...... 57674, 58137 571...... 55859 50...... 59599 45 CFR 211...... 58142 633...... 56363 52 ...... 54410, 54993, 55325, 154...... 54969 212 ...... 58137, 58138, 58144 55621, 55842, 56130, 56132, Proposed Rules: 213...... 58149 56134, 56694, 56701, 56706, 46...... 54408 215...... 58137, 58150 50 CFR 57013, 57691, 57696, 57846, 160...... 54408 216...... 57674, 57677 17 ...... 54711, 58868, 58954 57872, 58206, 58210, 58570, 164...... 54408, 56712 217...... 58152 20 ...... 54658, 54676, 58682, 58748, 59087, 59089, 59090, 219...... 58137 59271, 59298 59334, 59338, 59344, 59345, 46 CFR 227...... 58144 32 ...... 56054, 59304, 60379 59599, 59600, 60405 160...... 56294 232...... 58137 100...... 56109 236...... 58155 81 ...... 54412, 58210, 59345, Proposed Rules: 223...... 58868 237...... 58137 59600 2...... 55847 224...... 58868 241...... 58152 98...... 56010 300...... 59304 8...... 54419 243...... 58137 180...... 55329 600...... 59304 15...... 55847 252 ...... 57671, 57674, 58137, 260...... 55846 622...... 56659, 59063 28...... 58226 58138, 58140, 58142, 58144 261...... 55846, 59960 136...... 55847 635...... 56120 Proposed Rules: 271...... 56708 137...... 55847 648 ...... 54385, 56322, 56985, 1...... 55849 300 ...... 56362, 57701, 57702 138...... 55847 60379, 60606 2...... 55849 721...... 55622 654...... 59064 139...... 55847 4...... 55849 745...... 56136 660 ...... 54713, 56327, 58720 140...... 55847 12...... 55849 665...... 54715 141...... 55847 14...... 55849 679 ...... 54716, 55276, 55606, 41 CFR 142...... 55847 15...... 55849 143...... 55847 19...... 55849 57679, 58156, 58414, 59064, 300-3 ...... 55273, 59914 144...... 55847 59922, 59923, 59924 Ch. 301 ...... 59914 22...... 55849 160...... 60405 26...... 55849 Proposed Rules: 301-2...... 55273 381...... 57941 52...... 55849 17 ...... 54423, 55170, 55623, 301-10...... 55273 382...... 57941 53...... 55849 55638, 56381, 57943, 58441, 301-11...... 55273 501...... 58227 205...... 59623 58455, 58650, 59623, 59774, 301-30...... 59914 540...... 58227 208...... 59623 59836, 59990, 60431 301-31...... 59914 212...... 59623 300...... 55343 47 CFR 301-52...... 55273 213...... 59623 622 ...... 54727, 58455, 59102, 301-70...... 55273 0 ...... 56657, 59192, 60652 214...... 59623 59371, 59373, 59375, 59377, 301-71...... 55273 1...... 55817, 60652 215...... 59623 60444 302-3...... 59914 8...... 59192 216...... 59623 635...... 57709 302-4...... 59914 15...... 56657 252...... 59623 640...... 54727, 59102 302-6...... 59914 20...... 59916 1852...... 57014 648...... 57944 303-70...... 59914 25...... 57923 660 ...... 54888, 55344, 55865, Proposed Rules: 54...... 56295 49 CFR 57945, 59634 128-1...... 55332 61...... 60378 37...... 57924 679...... 55343

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